Terms and Conditions

IceCream Digital Limited T/A IceCream Digital – Terms & Conditions of Trade
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1. Definitions
   
   1. “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting IceCream Digital to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
      
      1. if there is more than one Client, is a reference to each Client jointly and severally; and
      2. if the Client is a partnership, it shall bind each partner jointly and severally; and
      3. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
      4. includes the Client’s executors, administrators, successors and permitted assigns.
   2. “Contract” means the terms and conditions contained herein, together with any proposal, order, invoice or other document or amendments expressed to be supplemental to this Contract. 
   3. “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. 
   4. “IceCream Digital” means IceCream Digital Limited T/A IceCream Digital, its successors and assigns.
   5. “Price” means the Price payable (plus any Goods and Services Tax (“GST”) where applicable) for the Goods as agreed between IceCream Digital and the Client in accordance with clause 7 below.
   6. “Prohibited Content” means any content that:
      
      1. is, or could reasonably be considered to be, in breach of the broadcasting standards or any other applicable law or applicable industry code; or
      2. contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
      3. is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights.
   7. “Services” means all Goods (which includes any printed or virtual material, samples, Website, brands, designs, images, advertising, publications, documents, drawings, files, information, data, graphics, pictures or trademarks) or Services (which includes any advice or recommendations, support, marketing, assessment and planning, graphic design of brands, designs, images, or advertising, brand integration or strategies, analysis, training, project management or service sourcing and the organisation of copyrighting such any Goods and/or Services) supplied by IceCream Digital to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
   8. “Website” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.

2. Acceptance
   
   1. The parties acknowledge and agree that:
      
      1. they have read and understood the terms and conditions contained in this Contract; and
      2. the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by IceCream Digital.
   2. In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
   3. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties. 
   4. The Client acknowledges that;
      
      1. the supply of Services on credit shall not take effect until the Client has completed a credit application with IceCream Digital and IceCream Digital has approved the credit with a credit limit established for the account;
      2. in the event that the supply of Services requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, IceCream Digital reserves the right to refuse delivery;
      3. no intellectual property (including, but not limited to, Website coding, passwords etc.) will be transferred to the Client unless all amounts owing to IceCream Digital are paid; 
      4. IceCream Digital reserves the right not to undertake any Services, refuse to accept any content supplied by the Client, withdraw any advertisement or publication at any time for any reason (including where such, in IceCream Digital’s opinion is or may be unlawful, offensive, contains Prohibited Content, or is otherwise inappropriate), and IceCream Digital shall not be liable to the Client for any such action; and
      5. IceCream Digital will endeavour to place any advertisement in the position requested by the Client; however, they cannot always do so and shall not be liable to the Client where any advertisement does not appear in the place requested.
   5. Once accepted by the Client, IceCream Digital’s proposal shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, IceCream Digital shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
   6. Services provided by IceCream Digital are subject to availability and only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
   7. This Contract constitutes the entire agreement between IceCream Digital and the Client, and the Client hereby acknowledges that no reliance is placed on any representation made by IceCream Digital, but not embodied in this Contract.
   8. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Authorised Representatives
   
   1. Unless otherwise limited as per clause 3.2 the Client agrees that should the Client introduce any third party to IceCream Digital as the Client’s duly authorised representative, that once introduced that person shall have the full authority of the Client to order any Services on the Client’s behalf and/or to request any variation to those Services on the Client’s behalf (such authority to continue until all requested Services have been completed or the Client otherwise notifies IceCream Digital in writing that said person is no longer the Client’s duly authorised representative).
   2. In the event that the Client’s duly authorised representative as per clause 3.1 is to have only limited authority to act on the Client’s behalf then the Client must specifically and clearly advise IceCream Digital in writing of the parameters of the limited authority granted to their representative. 
   3. The Client specifically acknowledges and accepts that they will be solely liable to IceCream Digital for all additional costs incurred by IceCream Digital (including IceCream Digital’s profit margin) in providing any Services or variation/s requested by the Client’s duly authorised representative (subject always to the limitations imposed under clause 3.2 (if any)).

4. Errors and Omissions
   
   1. The Client acknowledges and accepts that IceCream Digital shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
      
      1. resulting from an inadvertent mistake made by IceCream Digital in the formation and/or administration of this Contract; and/or
      2. contained in/omitted from any literature (hard copy and/or electronic) supplied by IceCream Digital in respect of the Services.
   2. If such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of IceCream Digital; the Client:
      
      1. shall not be entitled to treat this Contract as repudiated nor render it invalid; but
      2. shall not be responsible for any additional costs incurred by IceCream Digital arising from the error or omission. 

5. Change in Control
   
   1. The Client shall give IceCream Digital not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by IceCream Digital as a result of the Client’s failure to comply with this clause.

6. Subscription Plans
   
   1. The commencement date shall be the date of the first delivery of the Services, or from the date of signing, whichever, is the earlier. Fixed price agreements shall be for the period (‘initial term”) as agreed between both parties and shall revert to a monthly roll over basis automatically, thereafter, unless agreed otherwise until terminated by either party by giving at least one (1) months required notice as defined in the agreement prior to the expiration date of the initial term or any additional term.
   2. The Client acknowledges and accepts that the Price stated will remain fixed for an initial period of twelve (12) months from the date of this Contract and will then be subject to revision on the basis of the movement in the Consumer Price Index (CPI).  

7. Price and Payment
   
   1. At IceCream Digital’s sole discretion the Price shall be either:
      
      1. as indicated on any invoice provided by IceCream Digital to the Client; or
      2. IceCream Digital’s quoted Price (subject to clause 7.2) which will be valid for the period stated in the proposal or otherwise for a period of thirty (30) days.
   2. IceCream Digital reserves the right to change the Price:
      
      1. IceCream Digital agrees that there will be no charge in the preparation of the initial proposal, which may include Client discussions, project scoping, research, testing and business analysis, etc. However, in some instances the aforementioned services may be charged to the Client additionally (at IceCream Digital’s sole discretion). In the event the Client requires proofs, mock-ups, layouts, samples or dummies or printed, typewritten or other good copy and/or edits, this shall be invoiced at IceCream Digital’s hourly rate unless specified otherwise in the initial proposal, therefore, this variation shall be detailed on the invoice as per sub-clause (j); or
      2. when style, type or layout is left to IceCream Digital’s judgement, and the Client makes further alterations to the copy; or
      3. any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Client, and deemed necessary by IceCream Digital to ensure correctly finished work; or
      4. proposals are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other copy, any extra work or cost caused by any variation by the Client of their original instructions or by the copy being, in IceCream Digital’s opinion, poorly prepared, or by the Client’s requirements being different from those originally submitted or described; or
      5. all work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client; or
      6. any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice; or
      7. unless otherwise agreed, the Client shall bear the cost of fonts, colour proofs, or artwork, specially bought at the Client’s request for the job; or
      8. where the performance of any contract with the Client requires IceCream Digital to obtain products and/or services from a third party, the Contract between IceCream Digital and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to IceCream Digital, and the Client shall be liable for the cost in full including IceCream Digital’s margin of such products and/or services; or
      9. whilst every effort will be taken by IceCream Digital to match virtual colours with physical colours, IceCream Digital will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client’s computer and/or the final product; or
      10. IceCream Digital reserves the right to amend the Price where there is any variation to the accepted plan of scheduled services, strategy, instructions or specifications, (including, but not limited to, as a result of additional purchases required such as “add-on” being modules or extension from third party companies which are used in creating the Client’s Website or additional Services which will be charged for on the basis of IceCream Digital’s standard hourly rates and time (and double such rate for any Services provided outside IceCream Digital’s normal business hours); or
      11. IceCream Digital shall not be held responsible for any amendments made by any third party before or after a design is published.
   3. Variations will be charged for on the basis of IceCream Digital’s proposal, and will be detailed in writing, and shown as variations on IceCream Digital’s invoice. The Client shall be required to respond to any variation submitted by IceCream Digital within ten (10) working days and any changes to any agreed scope of works that would result in a need to a Price amendment, will be outlined and approved by the Client before commencement of the Services. Failure to do so will entitle IceCream Digital to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
   4. At IceCream Digital’s sole discretion a reasonable deposit may be required. 
   5. Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by IceCream Digital, which may be:
      
      1. on provision of the Services; 
      2. by way of instalments/progress payments in accordance with IceCream Digital’s payment schedule;
      3. for approved credit account holders either, seven (7) or fourteen (14) days following the date of any invoice; or
      4. the date specified on any invoice or other form as being the date for payment; or
      5. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by IceCream Digital. 
   6. Payment may be made by electronic/on-line banking, or by any other method as agreed to between the Client and IceCream Digital.
   7. IceCream Digital and the Client agree that the Client’s obligations to IceCream Digital for the supply of Services shall not cease until:
      
      1. the Client has paid IceCream Digital all amounts owing to IceCream Digital; and
      2. the Client has met all of its other obligations to IceCream Digital.
   8. Receipt by IceCream Digital of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
   9. IceCream Digital may in its discretion allocate any payment received from the Client towards any invoice that IceCream Digital determines and may do so at the time of receipt or at any time afterwards. On any default by the Client IceCream Digital may re-allocate any payments previously received and allocated. In the absence of any payment allocation by IceCream Digital, payment will be deemed to be allocated in such manner as preserves the maximum value of IceCream Digital’s Purchase Money Security Interest (as defined in the PPSA) in the Goods.
   10. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by IceCream Digital nor to withhold payment of any invoice because part of that invoice is in dispute.
   11. Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to IceCream Digital an amount equal to any GST IceCream Digital must pay for any supply by IceCream Digital under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

8. Nominated Sub-Contractors
   
   1. IceCream Digital shall engage sub-contractors, as specified in the proposal, acting solely as agent on behalf of the Client and the following shall apply:
      
      1. IceCream Digital shall be entitled to enter into contracts with such sub-contractors in the name of the Client; 
      2. the Client shall be responsible for all payments to such sub-contractors; 
      3. where IceCream Digital pays the sub-contractor’s account on behalf of the Client, the Client shall reimburse IceCream Digital for the payment of the sub-contractor’s account together with an account-handling fee within the payment periods stated in clause 7.5 (unless specified otherwise) from the date of submission of the account by IceCream Digital to the Client; and
      4. if the Client does not reimburse IceCream Digital within the payment periods stated in clause 7.5, from the date of submission of the account in accordance with sub-clause (c) above, IceCream Digital shall be entitled to enforce any other rights IceCream Digital may have under clause 17.1.

9. Provision of the Services
   
   1. Each project is unique to a Client and the costings of a project are estimated and based on the requirements as defined by the Client at the initial meeting. The estimate covers the following:
      
      1. all technical, mandatory requirements and assumptions clearly itemised and disclosed by the Client prior to the initiation of the project to ensure all expected features and functionality have been correctly estimated; and
      2. any additional work requested or required outside of the original estimate/scope needs to be agreed that IceCream Digital is entitled to re-estimate the charges and time-frame without prejudice; and
      3. amendments which is to be expected should be kept to a minimum, however, if in the opinion of IceCream Digital, there is the need for more than one round of amendments, then the agreed number of changes must be established, prior to the commencement of the project.
   2. IceCream Digital may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
   3. Any time specified by IceCream Digital for delivery of the Services is an estimate only and IceCream Digital will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that IceCream Digital is unable to supply the Services as agreed solely due to any action or inaction of the Client then IceCream Digital shall be entitled to charge a reasonable Fee for re-supplying the Services at a later time and date.

10. Product Specifications
    
    1. The Client acknowledges that all descriptive specifications, illustrations, drawings, data, dimensions, ratings and weights stated in IceCream Digital’s or manufacturer’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the Contract, unless expressly stated as such in writing by IceCream Digital.

11. Risk
    
    1. The Client acknowledges and agrees that IceCream Digital shall not be held responsible or liable for:
       
       1. anything related to the Website;
       2. any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of IceCream Digital;
       3. any loss or damage to the Client’s software or hardware caused by any ‘updates’ provided for that software.

12. Client-Supplied Content or Materials
    
    1. Where the Client supplies content or materials to IceCream Digital for inclusion in the Services:
       
       1. the Client acknowledges that any content or materials supplied to IceCream Digital for incorporation into the Services is subject to the approval of IceCream Digital and may, regardless of prior approval, be rejected and removed by IceCream Digital; and
       2. such content or materials will be held by IceCream Digital at the Client’s risk; and
       3. IceCream Digital accepts no responsibility for imperfect work caused by defects in or unsuitability of such content or materials; and
       4. the Client warrants that all such content or materials supplied to IceCream Digital to be used for the provision of the Services shall:
          
          1. be true and correct in every particular; and
          2. does not contain Prohibited Content; and
          3. not be, nor contain, anything that is defamatory of any person or is indecent or obscene; and
          4. complies with all laws, regulations, codes of practice, guidelines and any standards applicable to the advertising industry and as determined by any relevant regulatory agency or industry self-regulatory body (including, but not limited to, the Consumer Guarantees Act 1993, the Fair Trading Act 1986, GDPR, privacy legislation, the Unsolicited Electronic Messages Act 2007 and the Advertising Standards Code (ASA); and
          5. does not infringe copyright, trademark or any other legal rights of another person and/or entity (including the name and image of any person without their consent, etc.); and
          6.  does not contain anything which may give rise to any cause of action against IceCream Digital (including, but not limited to, material     that may cause damage or injury to any person and/or entity); and
          7. is not false or misleading and is true in substance and in fact; and
          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 Fair Trading Act 1986 or any other applicable legislation; and
          9. be in the form, and delivered up to IceCream Digital by the date, specified thereby. If the Client fails to adhere to this sub-clause, IceCream Digital shall not be liable to the Client in the event IceCream Digital is unable to provide the Services.
    2. Imprints or any legal obligations required to appear on any printed or digital material are the responsibility of the Client. IceCream Digital reserves the right to place its imprint on all printed material unless specifically requested otherwise.
    3. In the case of content or materials left with IceCream Digital without specific instructions, IceCream Digital shall be free to dispose of them at the end of thirty (30) days after the end of a contract (or compaign).

13. Proof Reading
    
    1. Whilst every care is taken by IceCream Digital to carry out the instructions of the Client, it is the Client’s responsibility to undertake a final proof reading of the Goods, which will be sent to the Client and will be deemed accepted if no response is received by the Client within forty-eight (48) hours of IceCream Digital’s submission thereof. IceCream Digital shall be under no liability whatever for any errors not corrected by the Client in the final proof reading, and should the Client’s alterations require additional proofs this shall be invoiced as an extra in accordance with clause 7.2.

14. Personal Property Securities Act 1999 (“PPSA”)
    
    1. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
       
       1. these terms and conditions constitute a security agreement for the purposes of the PPSA; and
       2. a security interest is taken in all Goods that have previously been supplied and that will be supplied in the future by IceCream Digital to the Client, and the proceeds from such Goods as listed by IceCream Digital to the Client in invoices rendered from time to time.
    2. The Client undertakes to:
       
       1. sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which IceCream Digital may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
       2. indemnify, and upon demand reimburse, IceCream Digital for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
       3. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods or the proceeds of such Goods in favour of a third party without the prior written consent of IceCream Digital; and
       4. immediately advise IceCream Digital of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
    3. Unless otherwise agreed to in writing by IceCream Digital, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
    4. The Client shall unconditionally ratify any actions taken by IceCream Digital under clauses 14.1 to 14.3. 
    5. Subject to any express provisions to the contrary (including those contained in this clause 14), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA. 

15. Security and Charge
    
    1. In consideration of IceCream Digital agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, and the Client grants a security interest in all of its present and after-acquired property, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money). The terms of the charge and security interest are the terms of Memorandum 2018/4344 registered pursuant to s.209 of the Land Transfer Act 2017.
    2. The Client indemnifies IceCream Digital from and against all IceCream Digital’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising IceCream Digital’s rights under this clause.
    3. The Client irrevocably appoints IceCream Digital and each director of IceCream Digital as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.

16. Consumer Guarantees Act 1993 and the Fair Trading Act 1986
    
    1. If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 (“CGA”) do not apply to the supply of Goods by IceCream Digital to the Client. 
    2. IceCream Digital agrees to abide by the provisions of the Fair Trading Act (“FTA”).

17. Intellectual Property
    
    1. Where IceCream Digital has designed, drawn or developed Goods for the Client (including but not limited to, any information regarding strategies and other marketing methodologies etc.), then the copyright in those Goods shall remain the property of IceCream Digital, and the Client undertakes to acknowledge IceCream Digital’s design or drawings in the event that images of the Goods are utilised in advertising or marketing material by the Client. Under no circumstances may such designs, drawings and documents be used without the express written approval of IceCream Digital.
    2. Drawings, wireframes, mock-ups, style guides, sketches, photographs, designs or typesetting furnished by IceCream Digital, dummies, models or the like devices made or procured and manipulated by IceCream Digital, and negatives, positives, blocks, engravings, stencils, dies, plates or cylinders made from IceCream Digital’s original design, or from a design furnished by the Client, remain the exclusive property of IceCream Digital, unless otherwise agreed upon in writing.
    3. Sketches and dummies submitted by IceCream Digital on a speculative basis shall remain the property of IceCream Digital. They shall not be used for any purpose other than that nominated by IceCream Digital and no ideas obtained there from may be used without the consent of IceCream Digital, and IceCream Digital shall be entitled to compensation from the Client for any unauthorised use of such sketches and dummies.
    4. The Client warrants that all designs, specifications or instructions given to IceCream Digital will not cause IceCream Digital to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify IceCream Digital against any action taken by a third party against IceCream Digital in respect of any such infringement.
    5. The Client agrees that IceCream Digital may (at no cost) use for the purposes of marketing or entry into any competition, any Goods which IceCream Digital has created for the Client and/or any Services provided to the Client.
    6. Notwithstanding anything herein, the intellectual property rights in IceCream Digital’s Services do not vest in the Client and there is no assignment of these intellectual property rights to the Client. 
    7. All Flash, PHP, Java Script, HTML and Dynamic HTML coding and other supplied code (if any):
       
       1.  remains the intellectual property of IceCream Digital if created by IceCream Digital. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright; and
       2. as part of a third party template or software remains the property of the third party.  

18. Confidentiality
    
    1. Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party's written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.

19. Default and Consequences of Default
    
    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at IceCream Digital’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. If the Client owes IceCream Digital any money the Client shall indemnify IceCream Digital from and against all costs and disbursements incurred by IceCream Digital in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, IceCream Digital’s collection agency costs, and bank dishonour fees).
    3. Further to any other rights or remedies IceCream Digital may have under this Contract, if a Client has made payment to IceCream Digital, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by IceCream Digital under this clause 17.1 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
    4. Without prejudice to IceCream Digital’s other remedies at law IceCream Digital shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to IceCream Digital shall, whether or not due for payment, become immediately payable if:
       
       1. any money payable to IceCream Digital becomes overdue, or in IceCream Digital’s opinion the Client will be unable to make a payment when it falls due; 
       2. the Client has exceeded any applicable credit limit provided by IceCream Digital;
       3. the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
       4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

20. Cancellation
    
    1. Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions the other party may suspend or terminate the supply of Services or purchase of Goods to the other party. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
    2. If IceCream Digital, due to reasons beyond IceCream Digital’s reasonable control, is unable to deliver any Goods or provide Services to the Client, IceCream Digital may cancel any Contract to which these terms and conditions apply or cancel delivery of Goods or Services at any time before the Goods or Services are delivered by giving written notice to the Client. On giving such notice IceCream Digital shall repay to the Client any money paid by the Client for the Goods or Services. IceCream Digital shall not be liable for any loss or damage whatsoever arising from such cancellation.
    3. The Client may cancel delivery of the Goods and/or Services by written notice served within twenty-four (24) hours of placement of the order. Failure by the Client to otherwise accept Delivery of the Goods and/or Services shall place the Client in breach of this Contract.
    4. Either party may, terminate these terms and conditions or cancel provision of the Services:
       
       1. prior to the commencement of the Services, in the event that after consultation with the Client, IceCream Digital determines it is not technically, commercially or operationally feasible to provide the Services to the Client; 
       2. if a term is specified, at any time after the end of the term by giving one (1) months’ notice to the other party;
       3. failure to give notice of intention to cancel at least one (1) month prior to the expiration date of the term, the term shall automatically renew on a monthly basis, unless cancelled by way of the Client providing IceCream Digital with one (1) months’ notice.
    5. In the event of the premature termination of this Contract (including by notification from the Client, (at least one (1) month prior to the expiration date of the contract term), or as a result of Default, but excluding any breach or termination of this Contract by IceCream Digital), the Client shall be responsible for the immediate payment of the following sums:
       
       1. all monies due and payable up to the date of termination whether periodic or a fixed term, (noting applicable rates may change if the services agreement is shorter than that noted in the Proposal); and
       2. all other sums owing by the Client under this Contract directly as a result of the Default and termination of this Contract, which shall be calculated on the basis of any substantiated costs reasonably incurred by IceCream Digital, or a minimum of twenty percent (20%) of the remainder of the Price under this Contract, whichever is the lesser, where a fixed term applies (to cover such costs imposed by IceCream Digital third party suppliers that form part of, this Contract, without any margin added by IceCream Digital thereto).

21. Limitation of Liability and Indemnity
    
    1. IceCream Digital accepts no liability whatsoever for any defect, error or omission in any Services approved by the Client, and will not be responsible for any costs or losses incurred by the Client by reason of any error in the Services (including, but not limited to, offering any refund or credit).
    2. The Client agrees to indemnify IceCream Digital, it’s employees, agents and affiliates, and their employees and agents against any action, claim, loss or expense arising from the production of Goods and/or publication of the Services, cancellation of, or failure to produce the Goods and/or publish any Services, and all costs, losses and expenses suffered or incurred by IceCream Digital, its employees, agents and affiliates, and their employees and agents as a result of any breach by the Client of these terms and conditions, or any other agreement between the Client and IceCream Digital.
    3. The Client acknowledges that, due to the nature of digital display, technical difficulties may arise which could prevent the provision of the Services; and the Client, therefore, agrees to indemnify IceCream Digital against any costs or losses incurred by the Client as a result of this.

22. Privacy Policy
    
    1. All emails, documents, images or other recorded information held or used by IceCream Digital is “Personal Information” as defined and referred to in clause 22.3 and therefore considered confidential. IceCream Digital acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 2020 (“the Act”) including Part II of the OECD Guidelines as set out in the Act. IceCream Digital acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by IceCream Digital that may result in serious harm to the Client, IceCream Digital will notify the Client in accordance with the Act.  Any release of such Personal Information must be in accordance with the Act and must be approved by the Client by written consent, unless subject to an operation of law.
    2. Notwithstanding clause 22.1, privacy limitations will extend to IceCream Digital in respect of Cookies where the Client utilises IceCream Digital’s website to make enquiries. IceCream Digital agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
       
       1. IP address, browser, email client type and other similar details;
       2. tracking website usage and traffic; and
       3. reports are available to IceCream Digital when IceCream Digital sends an email to the Client, so IceCream Digital may collect and review that information (“collectively Personal Information”)
          If the Client consents to IceCream Digital’s use of Cookies on IceCream Digital’s website and later wishes to withdraw that consent, the Client may manage and control IceCream Digital’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the site. 
    3. The Client authorises IceCream Digital or IceCream Digital’s agent to:
       
       1. access, collect, retain and use any information about the Client;
          
          1. including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice for the purpose of assessing the Client’s creditworthiness; or 
          2. for the purpose of marketing products and services to the Client.
       2. disclose information about the Client, whether collected by IceCream Digital from the Client directly or obtained by IceCream Digital from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
    4. Where the Client is an individual the authorities under clause 22.3 are authorities or consents for the purposes of the Privacy Act 2020.
    5. The Client shall have the right to request (by e-mail) from IceCream Digital, a copy of the Personal Information about the Client retained by IceCream Digital and the right to request that IceCream Digital correct any incorrect Personal Information.
    6. IceCream Digital will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law. 
    7. The Client can make a privacy complaint by contacting IceCream Digital via e-mail. IceCream Digital will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Privacy Commissioner at http://www.privacy.org.nz.

23. Service of Notices
    
    1. Any written notice given under this Contract shall be deemed to have been given and received:
       
       1. by handing the notice to the other party, in person;
       2. by leaving it at the address of the other party as stated in this Contract;
       3. by sending it by registered post to the address of the other party as stated in this Contract;
       4. if sent by email to the other party’s last known email address.
    2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

24. Trusts
    
    1. If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not IceCream Digital may have notice of the Trust, the Client covenants with IceCream Digital as follows:
       
       1. the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust, the trustees and the trust fund;
       2. the Client has full and complete power and authority under the Trust or from the Trustees of the Trust as the case maybe to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust, the trustees and the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
       3. the Client will not during the term of the Contract without consent in writing of IceCream Digital (IceCream Digital will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
          
          1. the removal, replacement or retirement of the Client as trustee of the Trust;
          2. any alteration to or variation of the terms of the Trust;
          3. any advancement or distribution of capital of the Trust; or
          4. any resettlement of the trust fund or trust property.

25. Jurisdiction
    
    1. The Website (excluding any linked third party sites) is controlled by IceCream Digital from their principal business premises in New Zealand. It can be accessed from countries around the world to the extent permitted by the Website. As each country has laws that may differ from New Zealand, by accessing this Website, the Client agrees that the laws and statutes of New Zealand shall apply to any dealings, actions or claims arising out of, or in relation to, this Contract, or the Client’s use of the Website, irrespective of any conflict with any laws and statutes applicable to the Client’s country of domicile.
    2. The Client further acknowledges and agrees that the filing of a claim against IceCream Digital (if any) must be made in New Zealand in which their principal business premises is domiciled, and that any legal proceedings will be conducted in English.
    3. IceCream Digital makes no representation that Services offered through the Website are appropriate, available or suitable for use in countries outside of New Zealand, and accessing and/or utilising any Content from, or through, the Website which is illegal in your country of domicile is strictly prohibited.  

26. General
    
    1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    2. These terms and conditions and any Contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
    3. Subject to the CGA, the liability of IceCream Digital and the Client under this Contract shall be limited to the Price.
    4. IceCream Digital may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent provided the assignment does not cause detriment to the Client.
    5. The Client cannot licence or assign without the written approval of IceCream Digital.
    6. IceCream Digital may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of IceCream Digital’s sub-contractors without the authority of IceCream Digital.
    7. The Client agrees that IceCream Digital may amend their general terms and conditions for subsequent future Contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for IceCream Digital to provide Goods to the Client. 
    8. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments or embargo, including but not limited to, any Government imposed border lockdowns (including, worldwide destination ports), etc, (“Force Majeure”) or failure or outage of any telecommunications links or other connections forming part of the Internet or other event beyond the reasonable control of either party. This clause does not apply to a failure by the Client to make any payment due to IceCream Digital, following cessation of a Force Majeure.
    9. Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

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