Welcome to Kouk Creatives. We are committed to providing our clients with exceptional web design, development, and content management services. Below, we have our Terms of Engagement for you, which outline the agreement under which we provide our services. These terms ensure clarity and mutual understanding between Kouk Creatives and our clients throughout our professional relationship. We encourage you to read them thoroughly and emphasise that we are here to address any questions or concerns you may have before entering into a contract with us.

'Confidential Information' means all information provided by one party to the other in connection with this Agreement where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding:
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(a) information that enters the public domain or is disclosed to a party by a third party, other than through a breach of this Agreement, and
(b) information developed independently by a party.
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'Development Specifications' means the specifications for the Website set out in Schedule A.
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'Development Phases' means the stages specified in the Development Specifications for the completion of the Website.
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'Force Majeure Event' means any event beyond the control of the relevant party.
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'GST' has the meaning given A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.
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'Intellectual Property Rights' means all intellectual property rights, including all copyright patents, trade marks, design rights, trade secrets, domain names, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applicants for registration or rights to make such an application.
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'Supplier Software' means the items of software set out in Schedule 5.
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'Services' means the services to be provided by the supplier pursuant to this Agreement for the creation and development of the Website in accordance with the Development Specifications
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'Service Fee' means the amount(s) set out in Schedule 5.
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'Site Design' means the design, layout and formatting of the Website but does not include any Supplier Software.
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'Software Licence Fee' means the amount set out in Schedule 5.
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'Website' means the website to be developed and maintained by the Supplier.
Unless the context requires otherwise:
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(a) a reference to a person includes a corporation or any other legal entity;
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(b) the singular includes the plural and vice versa;
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(c) headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;
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(d) the term "includes" (or any similar term) means "includes without limitation" ; and
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(e) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.

2.1 - In Consideration of the payment of the Service Fee, the Supplier will provide the Services to the Customer inaccordance with this Agreement.

2.2 - The Supplier will provide the Additional Servces, where required by the Customer, in accordance with clause 3.2.

3.1 - The Services to be provided to the Customer and the elements of the Website are set out in the Development Specifications.

3.2 - If the Customer requires any changes during the term of this Agreement to the scope and nature of the Services to be provided, or the elements of the Website which the Supplier advises require additional time, material or resources to be provided by the Supplier ("Additional Services"), such changes will occur as follows:

(a) the Customer will notify the Supplier of any changes it requires;

(b) following notification, the Supplier will provide the Customer with a written notice of:
(i) the changes required to the Development Specifications;
(ii) the Additional Services required by such changes; and
(iii) the Additional Fees required to undertake such Additional Services;

(c) if the Customer agrees to:
(i) the changes to the Development Specifications;
(ii) the Additional Services; and
(iii) the Additional Fees, this Agreement will be considered varied to include such changes as set out in the notice provided by the Supplier pursuant to this clause.

4.1 - The parties will use reasonable endeavor's to comply with each Development Phase within the timeframes specified in the Development Plan.

4.2 - Within 10 (ten) working days of the Supplier becoming aware of a delay in completing any Development Phase it will notify the Customer in writing of the cause of the delay and the estimated time of completion.

4.3 - Where the Supplier provides notice in respect of a delay under clause 4.2 above, the Customer must grant the Supplier an extension of time for completion of any Development Phase.

5.1 -The Supplier will perform the Acceptance Tests under the supervision of the Customer at its own cost and, within10 (ten) working days of completion of each Development Phase and in accordance with the Development Plan.

5.2 - If the Website materially complies with the Acceptance Tests at Development Phase, the Customer must issue a written acceptance notice for that Development Phase within 2 days of completion of the Acceptance Tests for the relevant Development Phase.

5.3 - if the Customer notifies the Supplier, within 2 days of completion of the Acceptance Tests for the relevant Development Phase, that the Website is materially non-compliant with the Acceptance Tests at a Development Phase, the Customer will provide written notice to the Supplier and may:
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(a) set a new date for carrying out further tests on the Website on the same terms and conditions;
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(b) accept the Website subject to conditions; or
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(c) reject the Website for non-conformance with this Agreement and terminate this Agreement in accordance with clause 14.

5.4 - If the Customer does not provide notice to the Supplier in accordance with clause 5.2 or 5.3 above then the relevant Development Phase will be deemed to be accepted by the Customer.

6.1 -The Supplier will provide Maintenance Services as part of the Services for a period of up to 4 hours [per[month] for 3 months] at no charge to the Customer following delivery of the Website to the Customer.

6.2 - If the Customer wishes to obtain any additional Maintenance Services ("Additional Maintenance Services") It must request these from the Supplier and, if the Supplier agrees to provide such Additional Maintenance Services, the Supplier's standard rates for such Additional Maintenance Services may apply.

7.1 -The Customer will provide all required material to the Supplier according to the Development Specifications ("Customer Material") to be incorporated into the Website. All Customer Material will be provided in a form suitable for incorporation into the Website without any modification by the Supplier.

‍7.2 - If any person makes any claim alleging that the Customer Material or any use of it by the Supplier in accordance with this Agreement, infringes any Intellectual Property right or any other right of any person, the Customer must indemnify and hold harmless the Supplier from and against any such claim and from and against any loss (including reasonable legal fees) arising in connection with the claim.

8.1 - The Customer will pay the Service Fee as set out in the Payment Schedule in Schedule 4 and any Additional Fees incurred under this Agreement.

8.2 - The Supplier will provide the Customer with an invoice following acceptance of each Development Phase in accordance with clause 5 setting out the Service Fee, any Additional Fees and any applicable Software Licence Fee. The Customer must pay the Supplier the amounts set out in the invoice within ten days of the date of invoice.

8.3 - All fees set out in this Agreement are exclusive of all taxes, including any goods and services tax (GST) or value-added tax. If GST is imposed on any supply made under this Agreement, the party making the supply will collect GST from the recipient in addition to the fees payable for the supply.

9.1 - All amounts payable under this Agreement are expressed exclusive of GST.

9.2 - In respect of any taxable supply, the Customer must pay to the Supplier an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Service Fees, subject to the receipt by the Customer of a valid tax invoice.

10.1 -The parties acknowledge that existing and future Intellectual Property Rights in the Website including the Website Design, code and content provided under this Agreement, other than the Customer Material, will vest in the Supplier.

10.2 - The Supplier grants to the Customer a non-exclusive licence to:
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(a) use the Supplier Software in the form provided by the Supplier and for the purpose of the publication of the Website on the internet; and
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(b) sub-licence the right for users to access and use the Supplier Software as part of the Website;
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(c) use all existing and future Intellectual Property Rights in the Website including the Website Design and content provided under this Agreement for the purpose of the publication of the Website on the internet; and
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(d) sub-licence the right for users to access and use the content provided under this Agreement as part of the Website.

11.1 - A party must not without the prior written consent of the other, use or disclose the other party's Confidential Information unless expressly permitted by this Agreement or required to do so by law or any regulatory authority.
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11.2 - A party may:
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(a) use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
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(b) disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to this Agreement, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.

11.3 - Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party's Confidential Information whilst it is in the receiving part's possession or control.

11.4 - Each party must return, or at the other party's option destroy, all Confidential Information of the disclosing party in the receiving party's possession or control, on the earlier of the Supplier's request or on termination of this Agreement for any reason.

12.1 - Each party warrants that:

(a) the execution and delivery of this Agreement has been properly authorised;

(b) it has full corporate power to execute, deliver and perform its obligations under this Agreement;

(c) this Agreement constitutes as a legal, valid and binding obligation of it enforceable in accordance with its terms by appropriate legal remedy;

(d) this Agreement does not conflict with or result in the breach of or default under any provision of its constitution, or any material term or provision of any law or regulation to which it is a party or a subject orby which it is bound;

(e) there are no actions, claims, proceedings or investigations pending or threatened against it or by it of which it is aware, and which may have a material effect on the subject matter of this Agreement.

13.1 - To the full extent permitted by law, the Supplier excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages.
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13.2 - To the full extent permitted by law, the Supplier excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.
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13.3 - The Supplier's total aggregate liability for all claims relating to this Agreement is limited to the Fees payable under this Agreement.
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13.4 - Either party's liability for any claim relating to this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
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13.5 - This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, guarantees, conditions or obligations. If such legislation applies, to the extent possible, the Supplier limits its liability in respect of any claim to, at the Supplier's option:
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(a) in the case of goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of having the goods repaired,
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(b) in the case of services:
(i) the supply of the services again; or
(ii) the payment of the cost of having the services supplied again.

14.1 - A party may terminate this Agreement by written notice to the other if any of the following events has occurred in respect to the the other party

(a) a material breach of this Agreement which is not remediable or if capable of remedy, where the other party fails to remedy within 14 days of written notice;

(b) an insolvency event occurs, other than an internal reconstruction with notice to the other party.

15.1 - If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any rights or remedies available:

(a) the parties are immediately released from their obligations under the Agreement except those obligations listed in clauses 9, 10, 11, 12, 13, 15, 17 and 18 and any other obligations that, by their nature, survive termination.

(b) each party retains the claims it has against the other; and

(c) the Customer must immediately pay all outstanding Service Fees.

16.1 - The Supplier may appoint sub-contractors to perform Services under this Agreement.

17.1 - The parties' contact details for notices under this Agreement are as follows, or as otherwise notified by one party to the other from time to time:
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Supplier: Kouk Creatives Limited
Address: 5a Swainston Road, St Johns, Auckland 1072
Customer: (You)
Address: (Your company address)

17.2 - All notices must be in writing and can be given by:
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(a) hand delivery during normal business hours;
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(b) registered post; or
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(c) email followed within 2 business days by one of the means listed above.

17.3 - A notice is deemed to be given and received

(a) if delivered in accordance with clause 17.2(a) on the next business day after the day of delivery;

(b) if sent in accordance with clause 17.2(b) within 5 clear business days after the day of posting;

(c) if sent in accordance with clause 17.2(c) on the next business day after transmission.

18.1 - The Customer must not assign or otherwise deal in any other way with any of its rights under this Agreement without the prior written consent of the Customer.

18.2 - Nothing contained in this Agreement creates any relationship of partnership or agency between the parties.

18.3 - Nothing contained in this agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.

18.4 - Each party must at its own expense do everything reasonably necessary to give full effect of this Agreement and the events contemplated by it.

18.5 - This Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this Agreement, no party has relied on any representation made by or on behalf of the other.

18.6 - This Agreement may be amended only by a document signed by all parties.

18.7 - A provision of or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.

18.8 - This Agreement may be executed in counterparts which will be taken together to constitute one document.

18.9 - A party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.

18.10 - Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects a party's performance under this Agreement for more than thirty (30) consecutive days, the other party may immediately terminate this Agreement by written notice.

18.11 - All stamp duties and other government charges in relation to this Agreement must be paid by the Customer.

18.12 - This Agreement is governed by the laws of New Zealand and each party submits to the jurisdiction of the courts of New Zealand.