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1.Definitions

  • 1.1. The terms and conditions (“Terms”) set out below govern all of the supplies of Goods and Services by FINERGY Limited (“FINERGY”, “we”, “us” and “our”), to the Client (“Client”, “you” and “your”).
  • 1.2. These Terms will replace all earlier terms of trade and take precedence over any terms and conditions contained in any document used by you and purporting to have contractual effect.
  • 1.3. We may in our sole discretion vary these Terms from time to time without further notice to you.
  • 1.4. “Services” means all Automated Marketing and Client Communications, Email Communications, Data Management, Content and Social Media services as outlined in the Contract.
  • 1.5. Upon receipt of our Contract, you are taken to have accepted and be bound by these Terms.

2.Authorisation

  • 2.1. You agree that we have no obligation to inquire into the authority of any person placing orders on your behalf. It is your risk and responsibility to obtain every necessary or prudent authorisation (including licences, permits and consents) in relation to the Services we supply to you.

3.Intellectual Property and Confidential Information

  • 3.1. Title to proprietary information including all ownership rights to copyrights, trademarks and trade secrets in and about FINERGY’s Services shall be our exclusive property.
  • 3.2. FINERGY grants the Client a license to use any IP created by FINERGY solely in relation to the operation of the Client’s own business/commercial endeavours.
  • 3.3. The Client warrants that all instructions given to FINERGY will not cause FINERGY to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify FINERGY against any action taken by a third party against FINERGY in respect of any such infringement.
  • 3.4. FINERGY’s IP and Privacy Policy shall be adhered to at all times.

4.Charges and Payment

  • 4.1. FINERGY’s quoted Charges are valid for the term of this agreement as specified in the Contract
  • 4.2. Unless otherwise agreed in writing, you must pay us in cleared funds within 14 days of the date of our invoice.
  • 4.3. Unless stated otherwise, all charges are exclusive of GST, which will be added where applicable and is payable by the Client.
  • 4.4. All payments shall be made free of exchange or deduction by the Client to FINERGY’s bank account as notified on invoices provided by us.
  • 4.5. All amounts outstanding after the due date will be subject to a late payment interest charge of up to 2% per month, compounding. We may also recover from you all legal and debt collection costs, including legal costs on a solicitor/client basis, incurred by FINERGY in enforcing or attempting to enforce our rights under these Terms.

5.Responsibilities

  • 5.1. FINERGY will provide the Services in a timely and efficient manner and will make all efforts to ensure that the Services are of a high quality.
  • 5.2. Any advice, recommendations, information, assistance or service provided by FINERGY in relation to Services provided is given in good faith, is based on information provided by the Client to FINERGY, and FINERGY’s own knowledge.
  • 5.3. It shall be the responsibility of the Client to confirm the accuracy and reliability of information in light of the use to which the Client makes or intends to make of the Services.
  • 5.4. The Client will ensure that FINERGY is given such information and assistance as we reasonably require to enable us to provide the Services.
  • 5.5. We will not be responsible for, and accept no liability for, any deficiency or alleged deficiency in the Services which is attributable to:
  • 5.5.1. incorrect information provided by the Client; or
  • 5.5.2. failure by the Client to provide relevant information.

6.Indemnity

  • 6.1. You undertake and agree to indemnify and hold harmless FINERGY or its officers, employees, contractors or agents immediately on demand against any loss, claim, damage, expense, costs (including legal costs on a solicitor/client basis), liability or proceeding suffered or incurred at any time by FINERGY occurring as a result of, or resulting directly or indirectly from any breach of your obligations, undertakings or warranty contained or implied in these Terms.

7.Limitation of Liability

  • 7.1. Except as provided in these Terms, under no circumstances will FINERGY or its officers, employees, contractors or agents, be liable in contract, tort (including negligence) or otherwise to compensate you for any loss, injury or damage, whether consequential or otherwise, arising directly or indirectly from FINERGY’s breach of these Terms.
  • 7.2. If for any reason, notwithstanding clause 7.1, FINERGY and/or its officers, employees, contractors and/or agents are liable to you in contract, tort, or otherwise, the combined maximum liability of FINERGY and their officers, employees, contractors and agents to you shall be NZ$10 in respect of any one event or related series of events.

8.Consumer Guarantees Act 1993 & Fair Trading Act 1986

  • 8.1. If you are using our Services for the purpose of a trade or business, you acknowledge and agree to contract out of:
  • 8.1.1. The provisions of the Consumer Guarantees Act 1993;
  • 8.1.2. Sections 9, 12A, 13 or 14(1) of the Fair Trading Act 1986.

9.Privacy Information

  • 9.1. You agree that any information about you provided to us may be used by us at any time for any purposes connected with our business including but not limited to direct marketing, debt collection and credit reporting or assessment.
  • 9.2. You authorise us to provide such information to any external agency or any party for credit information and assessment purposes and that agency or party are hereby authorised to use and continue to use such information as part of their business services. Any personal information is held on FINERGY’s server and via digital cloud storage and you have certain right of access to your personal information under the Privacy Act 1993.
  • 9.3. FINERGY services include emailing and marketing to clients’ existing clients, referral partners and prospects, a service which is likely to include personal information of your clients, referral partners and prospects. This means that FINERGY must be authorised to be able to see, review, copy or store this information. Before passing any client information to FINERGY you agree to ensure that the privacy statements that your clients have acknowledged, received, read include ‘Contractors or Consultants engaged by your practice’. See FINERGY Privacy and Intellectual Property Policy for more information.

10.Unsolicited Electronic Messages Act 2007

  • 10.1. Under the Unsolicited Electronic Messages Act 2007, you must consent to receiving commercial emails from us. Consent can either be explicit, inferred or deemed. We will infer that we have your consent to send you commercial emails from time to time unless you inform us otherwise by letter or email. The email address for unsubscribing to commercial emails is: notifications@finergy.co.nz.
  • 10.2. You confirm that any email addresses sent to FINERGY related to the services outlined in the Contract adhere to the requirements of the Unsolicited Electronic Message Act 2007.

11.General

  • 11.1. You agree that time is of the essence in respect of your obligations to us.
  • 11.2. We will not be prevented from enforcing any of our rights under this agreement because on an earlier occasion we did not enforce those rights.
  • 11.3. While you are not entitled to assign your rights under these terms we may.
  • 11.4. You agree that we may issue any proceedings in respect of these terms in any court that suits us. The law that governs these terms is New Zealand law.
  • 11.5. Any provision of these terms that is held to be invalid or unenforceable for any reason shall be severed from and shall not affect the remaining provisions of these terms.
  • 11.6. You agree that these terms express the entire understanding between us and that there have been no representations made by or on behalf of us that have been relied upon by you that are not contained in these terms.

12.Termination

  • 12.1.The Client will provide FINERGY with one month’s written notice, at any time during the term of this agreement if it no longer wishes to receive the Services from FINERGY. If this occurs, the Client must pay all fees for work done by FINERGY, and any other charges incurred, up until the termination date