Terms of Trade
Pansy Boys Creative
Last updated: 09/08/2025
Effective from: 09/08/2025 (applies to new work, jobs or projects where quote hasn't been supplied as of 09/08/2025)
Effective from: 25/08/2025 (applies to work, jobs or projects already past the quoting stage as of 09/08/2025)
1. Definitions
Throughout this document the following definitions apply:
1.1. “Parties” means Pansy Boys and the Client.
1.2. “Pansy Boys”, “We”, “Us” or “Our” means Pansy Boys Ltd, its employees, contractors, representatives, or any person acting with the authority of Pansy Boys Ltd. Pansy Boys Ltd is a company incorporated under the laws of Aotearoa/New Zealand and trading as Pansy Boys Creative.
1.3. “Client”, “You”, or “Your” means the Client purchasing Services from us or any person acting on your behalf (including authorised representatives).
1.4. “Work” means products and services sought from, ordered from or carried out by Us in part or in full and charged under our trading name Pansy Boys Creative.
1.4.1. “Services” means all Incidental Items, software, applications or mobile application development (whether supplied from a third party software development company or where custom developed or programmed for you) or any advice or recommendations, personal development, Website development, graphic design, consultancy, marketing assessment, brand development, integration of strategies, analysis, project management, videography, photography, or media sourcing) provided by us at your request from time to time (and where the context permits, the terms Incidental Items, Work, or Services shall be interchangeable for the other).
1.4.2. “Maintenance Service” means maintenance Work offered on a repeating basis.
1.4.3. “Incidental Items” means any goods, documents, or materials supplied by us incidentally in providing you with any Services, including but not limited to any printed or virtual material, samples, designs, drawings, images, graphics, advertising, search engine optimisation, publication, data, files, information or other associated documentation, files, and goods.
1.5. “Price” means the Price of the Services (in accordance with clause 5).
1.6. “Terms of Trade” means this terms of trade document.
1.7. “Amounts Owing” means any amount you owe to us, from time to time, including the Price, any interest payable, any of your liability under these Terms of Trade and any enforcement expenses incurred by us in seeking payment of any Amounts Owing by you.
1.8. “Confidential Information” means all information that could be reasonably regarded in the circumstances as confidential, including information that relates to the business, interests or affairs of a party, these Terms of Trade, the Incidental Items or Services (as applicable), and intellectual property rights, but excludes information which is:
1.8.1. in the public domain, other than as a result of a breach of these Terms of Trade;
1.8.2. in possession of a party prior to the commencement of these Terms of Trade without any obligation of confidentiality; and
1.8.3. is independently developed or acquired by a party prior to the commencement of these Terms of Trade without relying on information that would itself be Confidential Information.
1.9. “Insolvency Event” means an event of insolvency, including bankruptcy; the appointment of an insolvency administrator, manager, receiver or liquidator; any action related to winding up or making a material arrangement in relation to creditors; applying for any type of protection against creditors; being unable to pay your debts as they fall due; or taking or suffering any similar or analogous action in any jurisdiction as a consequence of debt.
1.10. “Prohibited Content” means any content on any media (including advertising, posts, or comments) that:
1.10.1. is, or could reasonably be considered to be in breach of the Broadcasting Act 1989, the Consumer Guarantees Act 1993, the Fair Trading Act 1986 or any other applicable law or applicable industry code of practice;
1.10.2. contains, or could reasonably be considered to have any misrepresentations or is, or could be deemed to be misleading, deceptive, likely to mislead, deceive or is otherwise unlawful; or
1.10.3. is in breach of any person’s intellectual property rights.
1.11. “Website” means a location accessible on the internet through the world wide web and provides multimedia content via a graphical user interface.
1.12. “Contract” means a primary contract between Pansy Boys and You, applicable to the provision of Work (as defined above) by Pansy Boys Ltd. In the absence of a Contract, these Terms of Trade apply in full.
1.13. “Maintenance Contract” means a primary contract between Pansy Boys and You, applicable to the provision of Maintenance Services by Pansy Boys Ltd. In the absence of a Maintenance Contract, these Terms of Trade apply in full.
1.14. “Personnel” means directors, officers, employees, agents and contractors.
1.15. “FTA” means the Fair Trading Act 1986.
1.16. “CGA” means the Consumer Guarantees Act 1993.
1.17. “PPSA” means the Personal Property Securities Act 1999.
1.18. “Security Agreement” and “Security Interest” have the meanings given to them in Part 2, sections 16 and 17 of the PPSA.
1.19. “Regulator” means any authority, commission, government department, court, tribunal, or similar having regulatory or supervisory authority over the parties or Services.
1.20. “Related Company” has the meaning given to it in Part 1, section 2(3) of the Companies Act 1993.
2. General Terms
2.1. These Terms of Trade govern the relationship between Us and You (as defined in clause 1), in addition to or where not covered by a Conditions of Contract agreement. They are effective from the ‘Last Updated’ date above and will replace all earlier Pansy Boys Terms, Conditions, Agreements or Policies relating to trading with Pansy Boys Ltd.
2.2. We reserve the right to change these Terms of Trade by notice to you. Notice may be given by email notification to You (if Service is underway), or by notification on our website 14 days before changes take effect.
2.3. No other terms, conditions or deviations from these terms and conditions shall be binding unless accepted in writing by all parties. In the event of a conflict between these terms and conditions and any Contract, the terms and conditions of the Contract shall prevail.
2.4. You may not assign or transfer your rights or obligations under these Terms of Trade without our prior written consent from us (which may be withheld at our sole discretion).
2.5. Assignment or change of an Authorised Representative for either party must be notified in writing to the other party.
3. Quotation and Acceptance
3.1. We shall produce a formal quotation for you for the Service via email, software platform or paper copy. The quotation shall be subject to the terms included on the quotation as well as clarifications and exclusions set out in the Contract and these Terms of Trade. In the absence of an expiry date, the quotation shall be valid for a period of thirty (30) days from the date specified on the quotation.
3.2. You shall accept the quotation by:
3.2.1. email, sms, or other electronic message confirming acceptance of the quote;
3.2.2. accepting via a link in a digital quote;
3.2.3. signing and returning a paper copy of the quote;
3.2.4. signing and returning an acceptance form or;
3.2.5. signing a Contract between the Client and Pansy Boys.
3.3. You may also be required to sign a copy of any plans, specifications or scope of service documents. The acceptance of the quotation in the manner specified in clause 3 shall constitute a binding contract and acceptance of the terms and conditions contained herein.
3.4. By accepting the quotation you agree that you and your Authorised Representatives are bound by these Terms of Trade.
3.5. On acceptance of the quotation you shall pay Pansy Boys a deposit (“Deposit”) of no less than fifty (50) percent of the quoted price including GST before commencement of the Service if the quoted price is over one thousand (1000) dollars including GST. This condition may be overridden by a term of the quotation specifying a deposit amount or percentage. Any deposit must include GST.
3.6. Pansy Boys reserve the right to delay starting Services until the deposit is paid in full and pass on any reasonable costs incurred due to the delay to the Client. This may include but is not limited to staffing costs, additional admin, sub contractor or delivery cancellations, loss of income, and increased cost of materials due to availability changes.
3.7. The Deposit will be refundable only after any cancellation costs (as specified in clause 8) and/or overdue invoices have been subtracted from the Deposit.
4. Variations
4.1. A variation is any alteration to the agreed Service that changes the scope, pricing or amount of work required from that agreed upon in the quotation and any Scope of Work documentation.
4.2. Variations may include (but are not limited to) the following:
4.2.1. costs caused by delays or cancellation;
4.2.2. further Work requested or required to meet further requirements such as compatibility with certain devices or software;
4.2.3. scanning printed materials;
4.2.4. readjustment, editing, or proofing of materials such as photos, videos, artwork, designs, documents or text; and
4.2.5. setting up accounts, or services.
4.3. Except as expressly provided in a Contract or these Terms of Trade, no variation or alteration to the scope of the Service shall be binding on the parties unless agreed and recorded in writing by both parties, including any adjustment to the contract price.
4.4. Following agreement, variations will be added to the quotation or invoice.
4.5. Any changes required as a result of any ambiguous or inaccurate drawings, instruction or any other documentation provided by the Client or their agent will be treated as a variation to the Service.
5. Pricing
5.1. The price of the Service shall be the price stated in the quotation together with all extras selected by the Client and subject to variation in accordance with clause 4. The price quoted for the Service excludes GST and GST shall be payable by the Client in addition to the price quoted unless otherwise specified.
5.2. Where no price is stated in writing or agreed, the goods and/or services shall be deemed to be sold and/or supplied at the current price applying at the date upon which the invoice for the goods or services is issued to the Client.
5.3. Notwithstanding anything contained in this clause or the quotation, the price of the goods and/or services may be increased by the amount of any reasonable increase in cost of supply of the goods or services between the date upon which the quotation is delivered to the Client and the date upon which the goods or services are supplied and where such increase is beyond the reasonable control of Pansy Boys.
6. Payment
6.1. Payment for the Service shall be made in full on or before the due date specified on the relevant invoice/s. In lieu of a due date, the invoice shall be paid in full within thirty (30) days of the invoice date unless another arrangement has been agreed by both parties in writing.
6.2. Payments to and from Pansy Boys shall be made by Bank Transfer or using another electronic funds transfer method or service available to both parties. Pansy Boys may pass on a reasonable surcharge from the payment provider on payments made to Pansy Boys. The surcharge amount may differ between payment methods and will be specified either on the invoice or the online payment portal.
6.3. Pansy Boys’ current payment provider is Stripe. Stripes own Terms of Service can be found here: https://stripe.com/nz/legal/consumer
6.4. All invoices for progress payments will be prepared to meet the provisions of the Construction Contracts Act 2002. All invoices issued pursuant to the contract shall be in the form of a payment claim within the meaning of the Construction Contracts Act 2002. The Client is hereby put on notice of the requirements of the Construction Contracts Act 2002 in terms of the issuing of payment schedules.
6.5. Pansy Boys reserves the right to charge interest on all overdue accounts at five percent per thirty days (10% per 30 days) charged daily from the due date for payment until the date when payment is received including all expenses and costs (including legal costs as between solicitor and client and debt collection fees) incurred by Pansy Boys in obtaining or attempting to obtain a remedy for the failure to pay.
6.6. The Client may not deduct or withhold any amount (whether by way of a set-off, counterclaim or otherwise) from any money owing to Pansy Boys.
6.7. Receipt of a bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
6.8. The Client expressly acknowledges that no retentions shall apply unless provision for a retention is incorporated within the prevailing Conditions of Contract.
6.9. Any reasonable expenses or costs incurred by Pansy Boys in recovering any outstanding amounts, including debt collection agency fees or commissions and all legal costs will be payable by the Client.
6.10. Pansy Boys may send overdue debts to a Debt Collection Agency at any time after ninety (90) days has passed since the due date of the overdue invoice. Debt Collection Agency fees will be added to the debt.
6.11. Pansy Boys reserves the right at its sole discretion to withhold transfer of ownership and possession of Incidental Items or Services until all Amounts Owing are paid in full.
7. Commencement, Completion, and Delivery
7.1. The Client acknowledges that any estimates as to the time frames for the commencement and completion of the Service are approximate only. Pansy Boys will use all reasonable endeavours to ensure the Service is commenced and completed within the time frame specified but shall not be liable for any delay or failure to do so. Pansy Boys shall not be responsible for any delays caused by separate or nominated subcontractors. Should any delays occur the Client agrees that all costs incurred by Pansy Boys and resulting from such delays will be charged as a variation to the contract price.
7.2. The result of the Service is provided based on specifications, information and instructions provided by the Client to Pansy Boys (whether written or verbal). The Client acknowledges that it is Their responsibility to ensure that such are detailed sufficiently to satisfy Our requirements of interpretation and understanding. Once accepted by the Client, Pansy Boys quotation shall be deemed to interpret those specifications, information and instructions correctly. We shall not accept any liability for a Service result contrary to your intention or errors or omissions due to insufficient or inadequate provision of detailed specifications, information or instructions by the Client (including misinterpretation). We may charge you additional costs incurred in remedying the Service (and, if reasonably practical, notify you of such costs before they are incurred).
8. Delays and Cancellation
8.1. Service may be unavoidably delayed due to circumstances beyond Pansy Boys’ control including, but not limited to service outages, equipment failure, ill health, or delayed Deposit payments. Reasonable costs incurred for circumstances beyond Pansy Boys’ control may be passed on the Client. This may include but is not limited to staffing costs, additional admin, sub contractor or delivery cancellations, loss of income, and increased cost of materials due to availability changes.
8.2. Pansy Boys shall not be held liable in respect to any failure to deliver or delay in delivery or completion of the Contract due to any cause beyond Our control of whatever nature. In no circumstances whatsoever shall we be liable for consequential loss whether suffered by You, and/or any third party.
8.3. In the event that the Client wishes to cancel the Service at any time after acceptance of the quotation, the Client shall pay all actual and reasonable costs and expenses incurred by Pansy Boys together with a reasonable administration fee, provided that the Client shall not be entitled to cancel the Service by Contract or New Zealand Law once the Service has commenced without the prior consent in writing of Pansy Boys.
8.4. Pansy Boys will subtract cancellation costs from amounts paid up until the Cancellation unless another arrangement has been agreed in writing with the Client.
8.5. Pansy Boys shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of goods or services to the Client if the Client fails to pay any money owing after the due date, or if the Client commits an act of bankruptcy as defined in section 19 of the Insolvency Act 2006, or if liquidation proceedings are commenced in relation to the Client, or if the Client shall otherwise become bankrupt or insolvent, or if any other event occurs which evidences a lack of credit worthiness or insolvency on the part of the Client. Any cancellation or suspension by Pansy Boys pursuant to this clause shall not affect Pansy Boy’s claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the Client’s obligations to Pansy Boys under these terms and conditions.
9. Supplied Content
9.1. You warrant that all content or materials supplied to us to be used for the provision of the Service shall:
9.1.1. be true and correct;
9.1.2. not contain Prohibited Content;
9.1.3. not contain anything that is defamatory of any person or is indecent or obscene;
9.1.4. comply with all laws, regulations, codes of practice, guidelines or any standards applicable to the advertising industry or determined by any relevant Regulator (including the advertising codes of practice of the Advertising Standards Authority (ASA));
9.1.5. not infringe copyright, trademark or any other legal rights of another person or entity (including the name or images of any person without their consent);
9.1.6. not contain anything which may give rise to any cause of action by a third party against us (including material that may cause damage or injury to any person or entity);
9.1.7. not be false or misleading and is confirmed in substance and fact;
9.1.8. not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach of a provision of the FTA, the CGA or any other applicable legislation; and
9.1.9. be in the form and delivered to us by the date agreed to by both parties. If you fail to adhere to sub-clause 9.1, we shall not be liable in the event we are unable to provide the Services at the time and location as agreed.
9.2. You shall provide us with data in the following formats:
9.2.1. for text, files shall be in an electronic format as standard text (.txt), or Word (.docx) document; and
9.2.2. for images, in an electronic format as advised by us on a USB or via email with images of a suitable quality applicable for the use intended and without any subsequent image processing being required (and we shall not be responsible for the quality of images scanned from printed materials unless we ourselves are scanning them).
9.3. Where you supply us with any plans, specifications or other technical information (such as electronic software that provides detailed and specific technical information), you shall be responsible for providing accurate data. We shall be entitled to rely on the accuracy of any plans, specifications or other technical information supplied by you.
9.4. We are not responsible for any errors in the Service or for additional expenses caused by you supplying inaccurate plans, specifications or other technical information.
10. Defects and Repair
10.1. Any alleged fault, defect, shortage in quantity, errors, omissions or failure to comply with the description or quote of the Service which the Client detects must be reported to us within ninety (90) days. The Client shall allow Pansy Boys to inspect the Work within a reasonable time following such notification if the Client believes the Work is defective. If the Client fails to comply with clause 10.1, the Work shall be presumed to be free from any defect or damage.
10.2. For defective Services, which we have agreed in writing that you are entitled to reject, our liability is limited to either (at our sole discretion) rectifying the Services or re-providing the Services (provided that you have complied with these Terms of Trade or a prevailing Contract).
10.3. Pansy Boys shall not be liable under clause 10 to remedy:
10.3.1. defects covered by a supplier’s guarantee that is available to and may be enforced by the Client;
10.3.2. defects in or damage caused by Service undertaken by the Client or any of the Client’s contractors.
11. Repeating Services
11.1. Cancellation, change of booking time, or other modification of a repeating service must be in writing from the Client at least 24 hours before the service is scheduled if the service is scheduled. Failure to give 24 hours notice may result in Pansy Boys charging a cancellation fee of 100% of the service price.
11.2. Service may occasionally be delayed due to circumstances beyond Pansy Boys’ control including, but not limited to, service outages, equipment failure, ill health, or delayed Deposit. Pansy Boys reserves the right to temporarily increase the cost of a repeating service by a reasonable amount to accommodate additional costs incurred due to circumstances beyond Our control.
11.3. The Client acknowledges and accepts that the Price stated in the quotation or agreed upon between the Client and Pansy Boys will remain fixed (“Fixed Term”) for twelve (12) months from acceptance and be subject to revision.
11.4. Any Fixed Term shall revert to a monthly rollover basis automatically upon completion unless agreed otherwise and shall continue until terminated by either party by giving at least thirty (30) days written notice.
11.5. Should you fail to maintain payment of fees as agreed, we reserve the right to suspend the services.
12. Warranty And Returns
12.1. To the extent permitted by law, no warranty is given by us as to the quality or suitability of the Service for any purpose, and any implied warranty is expressly excluded. We shall not be responsible for any loss or damage to the Service or caused by the Service (whether directly or indirectly).
12.2. For Incidental Items not manufactured by us, the warranty shall be the current warranty provided by the manufacturer of the Incidental Items, and we shall not be bound by any condition, representation or warranty other than that which the manufacturer of the Incidental Items gives.
12.3. We will not accept the return of Incidental Items for credit (unless agreed in writing).
12.4. Custom website build projects include a post-launch 30-day warranty period. This begins on the day the site goes live, and continues for a maximum of 30 calendar days. The warranty covers any ‘bugs’ logged with your Project Manager within the 30-day period but will be voided in the case of major change requests, or Work found to be completed by another agency.
13. Collection and Use of Information and Media
13.1. The Client authorises Pansy Boys to collect, retain and use any information about the Client for the purposes of:
13.1.1. enforcing any rights under this contract; and/or
13.1.2. carrying out requested services for the Client; and/or
13.1.3. other purposes referred to in Our Privacy Policy.
13.2. The Client authorises Pansy Boys to disclose any information obtained to any person for the purposes set out in clause 13. Where the Client is a natural person, the authorities under clause 13 are authorities or consents for the purposes of the Privacy Act 2020.
13.3. Our Privacy Policy has more information on data collection, storage and use.
14. Confidential Information
14.1. Each party must keep confidential all Confidential Information, however, nothing in clause 14 prevents a party from disclosing Confidential Information:
14.1.1. in the circumstances expressly provided for in these Terms of Trade;
14.1.2. if the disclosure is required by law or Regulator (but only to the extent necessary); or
14.1.3. if the disclosure is reasonably required to enable a party to perform its obligations or enforce its rights under these Terms of Trade.
14.2. We may disclose Confidential Information to a Related Company and their Personnel on a ‘need to know’ basis, provided that person is under a duty to keep the Confidential Information confidential in accordance with these Terms of Trade.
15. Consumer Guarantees Act 1993 and Fair Trading Act 1986
15.1. Subject to clause 16.2, nothing in these Terms of Trade will affect any rights you may have as a ‘consumer’ (as defined under the CGA).
15.2. For the purposes of section 2 and Part 5, section 43(2) of the CGA, the parties acknowledge and agree that, if you are acquiring, or hold yourself out as acquiring, the Incidental Items or Services in trade:
15.2.1. to the extent permitted by law, you are contracting out of the CGA (to the extent that the CGA would otherwise apply to any matters covered by these Terms of Trade); and
15.2.2. it is fair and reasonable for the parties to be bound by clause 16.2.
15.3. If you are acquiring the Incidental Items or Services to resupply the Incidental Items or Services in trade, you undertake that you will:
15.3.1. contract out of the CGA to the maximum extent permitted by law in your contracts with your customers; and
15.3.2. procure that your customers, and each person in the distribution chain thereafter, contract out of the CGA to the maximum extent permitted by law in their contracts with customers.
15.4. For the purposes of section 5D of the FTA, the parties acknowledge and agree that, if you are acquiring, or hold yourself out as acquiring, the Incidental Items or Services in trade:
15.4.1. to the extent permitted by law, you are contracting out of sections 9, 12A and 13 of the FTA; and
15.4.2. it is fair and reasonable for the parties to be bound by clause 16.3.
15.4.3. You will indemnify us against any expenses or losses incurred by us as a result of your breach of clause 16.
16. Ownership & Intellectual Property
16.1. Ownership (including all title, interest, and rights such as copyright) of the Incidental Items or Services (including any new intellectual property created as a result of or in connection with the provision of our Incidental Items or Services) provided by us under these Terms of Trade remains with us and does not pass to you until:
16.1.1. we have received all Amounts Owing; and
16.1.2. you have performed all of your obligations under these Terms of Trade.
16.2. It is further agreed that:
16.2.1. you shall not charge or grant an encumbrance over the Incidental Items nor give away any interest in the Incidental Items while they remain our property; and
16.2.2. you irrevocably authorise us to enter any premises where we believe the Incidental Items are kept and recover possession of the Incidental Items; and
16.2.3. we may withhold handover of the Incidental Items and/or Services (including taking or leaving offline any websites and other internet-based resources) until all conditions in clause 16 have been met.
16.3. If any Amounts Owing is overdue, or an Insolvency Event occurs, you give irrevocable authority to us to use reasonable force to enter anywhere Incidental Items may be stored, to remove any Incidental Items. We shall not be liable in contract, tort or otherwise for any damages, expenses, or losses incurred by you or any third party, and you indemnify us against any liability we may have to any third party (including full legal expenses on a solicitor-client basis), as a result of us exercising our rights under clause 17.3, except where damages, expenses or losses are due to our negligence or fraud.
16.4. If you resell or use any Incidental Items before ownership of the Incidental Items has passed to you (including combing or processing the Incidental Items), the proceeds of such sale or use will be received and held by you (in whatever form) in trust for us to the extent of the Amounts Owing (where our interest as beneficiary under that trust will be that portion of the proceeds which is equivalent to the Amounts Owing to us and the balance of the proceeds (if any) will be your beneficial interest under that trust).
16.5. If any Incidental Items are damaged where full payment has not been received, and therefore ownership remains with us, you agree that we are entitled to:
16.5.1. receive all insurance proceeds paid for the Incidental Items; and
16.5.2. supply these Terms of Trade as a binding legal agreement which is sufficient evidence for us to deal directly with the insurance company to receive all proceeds for the Incidental Items, which we legally own under clause 17.1.
16.6. We may commence proceedings to recover the Price of the Services provided, notwithstanding that ownership of the Incidental Items or Services has not passed to you.
16.7. Once ownership of Incidental Items or Services transfers to you, you grant Pansy Boys a license to:
16.7.1. use the Incidental Items, Services or designs thereof for our own marketing and portfolio use; and
16.7.2. sub-license Pansy Boys Personnel to use the Incidental Items, Services, or designs thereof for their own marketing and portfolio use, at the discretion of Pansy Boys’ owners/directors.
16.8. Pansy Boys reserves the right at its sole discretion to withhold transfer of ownership and possession of Incidental Items or Services until all Amounts Owing are paid in full.
16.9. You warrant that the use by us of any plans, specifications or other technical information provided by you will not infringe the intellectual property rights of any other person and indemnify us against any expenses or losses (including full legal expenses on a solicitor client-basis) that we may suffer or incur in the event of any such infringement.
17. Personal Property Securities Act 1999
17.1. You acknowledge and agree that:
17.1.1. these Terms of Trade constitutes, in favour of us, a Security Agreement creating a Security Interest in the Incidental Items or Services or the proceeds of such Incidental Items or Services; and
17.1.2. The security Interest granted to us secures the payment of all Amounts Owing (all present and after-acquired personal property) you may owe to us from time to time and at any time.
17.2. You agree that you will sign any further documentation and provide any information which we may reasonably require to ensure we are paid all Amounts Owing due to us and otherwise to protect our interests under these Terms of Trade, including by registration, Interest in the Incidental Items or Services, or a Security Interest in the proceeds of any Incidental Items or Services (a Security Interest taken in all collateral and any proceeds of any collateral).
17.3. To the extent permitted by law, we each contract out of:
17.3.1. sections 114(1)(a), 133 and 134 of the PPSA; and
17.3.2. your rights referred to in sections 107(2)(a), (c), (d), (e), (f), (g), (h) and (i) of the PPSA.
17.4. You waive your right to receive a verification statement under section 148 of the PPSA in respect of any financing statement relating to a Security Interest.
17.5. Nothing in these Terms of Trade is to be construed as an agreement that a Security Interest in the Incidental Items (collateral) attaches at a later time than the time specified in Part 3, section 40(1) of the PPSA; a Security Interest is perfected in accordance with Part 3, section 41(1) of the PPSA; a Security Interest in all after-acquired property attaches at the time specified in Part 4, section 44(1) of the PPSA; and a Security Interest in collateral shall extend to the proceeds as specified in Part 4, section 45(1) of the PPSA.
17.6. Each Security Interest is a continuing Security, notwithstanding any intermediate payments, settlement of accounts or anything else.
17.7. You must provide us with information and any associated documentation reasonably requested by us from time to time relating to your financial status.
17.8. If at any time we consider that your financial status is unsatisfactory, we may require you to grant additional Security Interest(s) as security for the Amounts Owing, and we may suspend or cancel further supply of Incidental Items or Services until you have provided such Security Interest(s).
17.9. You shall unconditionally ratify any actions taken by us under clause 18.
18. Insurance And Risk
18.1. Where we are to supply Services, we shall maintain an insurance policy for the Services until completion, at which point all risk shall immediately pass to you. 24.2.Whilst every care is taken by us to carry out your instructions, it is your responsibility to undertake final proofreading and revision of the proposed Services (including any media communications prior to posting the same to any social media platform or content for Website design). We shall not be liable for any errors not corrected by you in the final proofreading/revision stage.
18.2. Any advice, recommendations, information, or assistance provided by us in relation to the Services provided is given in good faith and is based on information provided to us and our knowledge and experience. Whilst we will take all care when providing our Services, human error is possible under these circumstances. We shall make all efforts to offer the best solution to you in these circumstances (in accordance with clause 16).
18.3. Unless otherwise agreed, you shall bear the cost of fonts, colour proofs, or artwork, specially bought at your request for the Services.
18.4. Where the performance of any agreement with you requires us to obtain services from a third party, the Agreement between the parties shall incorporate and be subject to the conditions of supply of such services to you (including registering your business with such services or setting up Social Media accounts where required). You shall be liable for the full cost (including our margin on such Services).
18.5. Any changes and comments resulting from proofreading/revision undertaken by you shall be provided to us in one (1) complete brief and not multiple email notifications. Any extended modifications outside this scope shall be charged at our hourly rate.
18.6. Any change or correction to any video, photographs, and artwork supplied by you that we deem necessary to ensure correctly finished Work shall be invoiced as a variation (in accordance with clause 4).
18.7. Any expected or estimated outcomes concerning increased sales or market share or penetration achieved by you derived from marketing activities undertaken by us, expressed in consultation or estimates, are speculative and in no way constitute a guarantee. In addition, if you make changes to the Website, social media pages or advertising campaign information without prior discussion with us, any such changes may negatively affect any costs or results.
18.8. We reserve the right not to undertake any Services, refuse to accept any content supplied by you, or withdraw any advertisement or publication for any reason (including where in our opinion, is or may be unlawful, offensive, contains Prohibited Content or is otherwise inappropriate). We shall not be liable to you for any such action.
18.9. You agree to indemnify us, our employees, agents and affiliates, and their employees and agents against any claim, loss or expense arising from the production of the Website, publication of the Services, or cancellation of, or failure to produce the Website, the Incidental Items, or to publish any Services (including costs, losses or expenses suffered or incurred by you as a result of any breach by us of this Agreement, or any other agreement between both parties).
18.10. You agree that, due to the nature of digital display, technical difficulties may arise which could prevent the provision of the Services; and you, therefore, agree to indemnify us against any costs or losses incurred by you as a result of this.
18.11. You accept that we are only responsible for Incidental Items or Services that are provided or replaced by us, and we do not accept any responsibility for previous Services carried out by any third party or for any loss or damage to the Incidental Items or Services that are caused by any other third party after the completion of the Services.
18.12. Should you request us to leave Incidental Items outside our premises for collection or deliver the Incidental Items to an unattended location, you agree that those Incidental Items shall be left unattended at your sole risk.
19. Health And Safety At Work Act 2015
19.1. Each party will comply with the Health and Safety at Work Act 2015 (HSW Act), including all health and safety duties specified in Part 2 of the HSW Act and all other applicable standards and codes of practice relating to health and safety. In addition, each party will comply with the other party’s pre-notified and reasonable health and safety policies when on the party’s premises.
19.2. You must notify us of any known hazards arising from your premises to which any person may be exposed, as well as notify us of any notifiable injury, illness, incident or event (as defined in Part 1, subpart 3 of the HSW Act) to ensure that your workplace is without risks to the health and safety of any person.
19.3. Each party must consult, cooperate and coordinate activities with all other persons who have a health and safety duty in relation to the same matter in providing the Incidental Items or Services (including in connection with the delivery of the Incidental Items or Services).
20. Website Development
20.1. Our responsibilities:
20.1.1. Upon acceptance of our quotation/proposal under these Terms of Trade, we will:
20.1.1.1. use our best endeavours to develop the Website in accordance with your instructions and specifications (including development stages); and
20.1.1.2. to the extent specified in your instructions and specifications, negotiate and procure any third-party agreements on your behalf.
20.1.2. You acknowledge that the development of the Website by us is based upon current technology platforms (including internet browsers, mobile platforms and social media platforms), and therefore we cannot guarantee that Website features or content will display correctly or that the overall visual experience will be the same.
20.1.3. Upon our receipt of payment in full, we shall provide you with the last backup of the Website and associated data and ensure the Website is live and visible on the Internet.
20.1.4. We shall advise you of all third-party software, platforms or social media platforms that you are recommended to have in place to assist you in setting up those accounts with your details and billing information.
20.1.5. All software and components not developed by us retain the original licence and terms associated with that software.
20.2. Your responsibilities:
20.2.1. You will ensure that we are given information and assistance (including access to computer systems, hosting account, disk space, creation databases, or applications) as we reasonably require to enable us to construct and maintain the Website.
20.2.2. When approval is sought or required from you following the completion of a development stage, you will not delay the consent of that development stage beyond seven (7) days (time being of the essence) of being requested unless otherwise agreed to by us in writing. In the event of delays beyond this time frame, then we shall be entitled to charge a holding fee of a fair and reasonable amount to be determined by us.
20.2.3. Subject to clause 21.2.1, you shall supply access to any computer system, usernames and passwords required to remove data or sites for failure to comply with these Terms of Trade.
20.2.4. It shall be your responsibility to ensure that any specific requirements you may have for mobile web browsers are included in the brief, as, unless otherwise specified therein, the choice of web browsers and technology used in the development of the Website shall be at our sole discretion. If additional Services are requested, or required, to meet any specific requirements for mobile web browsers, after we have commenced Service on the Website, it shall be treated as a variation to the Price, and a strict estimation of further Service required shall be submitted to you for approval before proceeding with the variation.
20.2.5. We will not be responsible for and accept no liability for any deficiency or alleged deficiency in the Website attributable to any third-party products or services used by us in creating the Website.
20.3. Domain registration:
20.3.1. Where we are to register a domain name on your behalf, we cannot guarantee the availability of the domain or the successful registration of such a name.
20.3.2. We will not be responsible for renewing any domain name registration unless specifically requested.
20.3.3. You will be responsible for complying with all terms and conditions relating to any registered domain name, as may be required by the registering service responsible for administering such domain name registration.
20.4. Your property and materials:
20.4.1. Graphic files should be supplied in an editable, digital format and photographs in a high-resolution digital form. If you choose to purchase stock photographs, we can suggest stock libraries.
20.4.2. In the case of property and materials left with us without specific instructions, we shall be free to dispose of them and to accept and retain the proceeds, if any, to cover their costs in holding and handling them.
20.4.3. Where you supply materials or equipment, we accept no responsibility for imperfect Work caused by defects in or caused by the unsuitability of such materials or equipment.
20.5. Public access:
20.5.1. You understand that by placing information on the Website, such information may be accessible to all internet users. We do not (unless expressly requested by you) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity; and
20.5.2. you assume full responsibility for the use of the Website. It is your sole responsibility to evaluate the accuracy, completeness and usefulness of all opinions, advice, services, and other information (including the quality and accuracy of all Services provided).
21. Client’s Responsibilities
21.1. In addition to any other obligations expressed in these Terms of Trade, you agree to:
21.1.1. provide all content (including data, logos, designs or graphics and related materials) to be incorporated into the Work within five (5) days of being requested by us;
21.1.2. the provision of any information, ideas or suggestions which are to be expressly considered by us in developing the Services; and
21.1.3. to ensure that content supplied to us does not contain Prohibited Content, a link to any Website that contains Prohibited Content, or any viruses, trojan horses, worms, time bombs, cancelbots or any other software program designed for or capable of interfering with the operation of the Website or our computer systems.
21.2. You agree that payments to third parties for general advertising, social media advertising and lead generation costs shall be your responsibility. Any budgets for such expenses shall be set in consultation between both parties.
22. Maintenance
22.1. Subject to sub-clause 21.5.2, we will provide the Maintenance Services in accordance with the maintenance terms set out in our quotation or Maintenance Contract.
22.2. You will procure all necessary authorisations, licences and consents to enable us to have access to the Website to provide the maintenance Services.
22.3. Should you, during the development of or after the handover of the Website, attempt to update, edit or alter the Website pages, infrastructure, source files or the Website’s architecture, the time that we provide to repair pages shall be treated as additional Services (in accordance with clause 4).
23. Search Engine Optimisation
23.1. Although we shall use our knowledge and experience to gain the best results possible, we give no guarantee of the quality of visitors or the position/page rank or the volume of visits to the Website, or that the Website will be effective in promoting your business or result in an increase in sales of your products/services.
23.2. Periodic reporting will be sent to your nominated email address at our sole discretion.
23.3. You accept that a search engine may change its policies and systems at any time, and as such, we shall not be held liable for any fluctuations, changes or removal of your listing from a search engine.
24. Non-Solicitation
24.1. You agree that during the term of the Agreement and for a period of six (6) months following the termination of the Agreement for any reason, you will not:
24.1.1. attempt to encourage or persuade any of our contractors, employees or consultants to terminate their contract or employment with us or utilise in any way an employee or past employee of us (other than through us); and
24.1.2. you agree that the restraints are fair and reasonable for the proper preservation of our goodwill and business.
24.2. If clause 24.1 is contravened, you agree to pay a placement fee equal to fifteen per cent (15%) of the employee’s annual salary (and you expressly consent to this prior to the candidate's appointment). You agree that this placement fee is also applicable if you engage our employees through a different labour-hire company or other third party.
25. Nominated Consultants
25.1. We may (if we consider it appropriate to do so) recommend the engagement of third-party consultants, whom you shall engage at your expense. We do not warrant the accuracy or quality of the consultant’s Work or warrant that the consultants' recommendations are appropriate or adequate, fit for their purpose, or that they are not given negligently. You accept that you shall not make any demand on us or commence any legal proceedings against us, and we shall have no liability to you in relation to any Services performed by the consultants.
26. Liability
26.1. We accept no liability for any defect, error or omission in any Work approved by you. We will not be responsible for any costs or losses incurred by you because of any error in the Work after the proofreading/revision stage (including offering no refund or credit).
26.2. None of our agents or representatives is authorised to make any representations, statements, conditions or agreements not expressed by our manager in writing, nor are we bound by any such unauthorised information.
26.3. To the extent permitted by law, we shall have no liability whatsoever to you for any direct or indirect expense or loss of profit suffered by you arising out of a breach by us of these Terms of Trade (including any unintentional misrepresentation made to you by us regarding any of the Incidental Items or Services).
26.4. To the extent permitted by law, our liability shall not exceed the Price of the Service provided by us under these Terms of Trade.
26.5. To the extent permitted by law, our total liability under or in connection with these Terms of Trade and the Incidental Items or Work is limited to, at our option:
26.5.1. in the case of Incidental Items, any one or more of the following:
26.5.1.1. the replacement of the Incidental Item(s) or the supply of equivalent Incidental Item(s);
26.5.1.2. the repair of the Incidental Item(s);
26.5.1.3. the payment of the expense of replacing the Incidental Item(s) or of acquiring equivalent Incidental Item(s); or
26.5.1.4. the payment of the expense of having the Incidental Item(s) repaired; or
26.5.2. in the case of Services:
26.5.2.1. supplying the Services again; or
26.5.2.2. the payment of the expense of having the Services supplied again.
26.6. If, notwithstanding clause 25, we have any liability under or in connection with this Agreement, to the maximum extent permitted by law:
26.6.1. our total aggregate liability to you for any loss, damage or liability arising out of or in connection with these Terms of Trade will be limited to the lesser of:
26.6.1.1. the Price paid by you to us for the applicable Incidental Items or Services; or
26.6.1.2. the actual loss or damage suffered by you.
26.7. The limitations and exclusions on liability in clause 26 will apply irrespective of the legal basis for the applicable claim, including contract, equity, tort or statute, except negligence and fraud.
26.8. In no circumstances will we have any liability whatsoever under or in connection with these Terms of Trade:
26.8.1. for the acts or omissions of any third party;
26.8.2. any act or omissions performance in accordance with your instructions (or instructions from your authorised representatives); or
26.8.3. to any third party.
27. Dispute Resolution
27.1. In the event of a dispute or disagreement arising between Pansy Boys and the Client the party with a grievance may give written notice to the other party specifying the nature of the dispute or disagreement, the remedy sought and requiring that the dispute or disagreement be determined and settled in accordance with this clause.
27.2. On receipt of the notice, the parties shall each appoint a representative who has authority to determine the grievance or dispute, and those two representatives shall meet as soon as reasonably possible to see if they can determine the grievance. All discussions, meetings and correspondence between the two representatives shall be deemed without prejudice and without concession of liability and shall not be used by either party in any later proceedings unless:
27.2.1. both parties agree, or
27.2.2. the two representatives reach agreement, but one party fails to honour such agreement.
27.3. If the two representatives cannot within fourteen (14) days of being appointed reach agreement on how the grievance or dispute is to be determined, the parties shall refer the dispute to an independent expert who is acceptable to both parties. The independent expert shall:
27.3.1. Set their own rules and procedure for the resolution of the grievance or disagreement
27.3.2. At all times act in good faith and in an unbiased way
27.3.3. Promptly hear and determine the dispute
27.3.4. Provide a written decision (with reasons for that decision) if requested by either party.
27.4. The independent expert’s:
27.4.1. Decision shall be binding on both parties:
27.4.2. Costs shall be paid equally by the parties unless the independent expert decides otherwise in their decision.
27.5. Notwithstanding anything contained in these Terms of Service, disputes in excess of ten thousand dollars ($10,000.00) shall be referred at Pansy Boy’s sole discretion to arbitration under the Arbitration Act 1996 or any subsequent Act passed in its place.
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