BY WORKING WITH FEARLESS KIWI LIMITED AND/OR VISITING FEARLESS.KIWI, YOU ARE CONSENTING TO OUR TERMS AND CONDITIONS.
The terms “we,” “us,” and “our” refer to Fearless Kiwi Limited. The term the “Site” refers to fearless.kiwi. The terms “user,” “you,” and “your” refer to site visitors, customers, and any other users of the site. We provide strategic, creative, technology, consulting services and digital services, courses and products (the “Service”).
Use of fearless.kiwi, including all materials presented herein and all online services provided by Fearless Kiwi Limited, is subject to the following Terms and Conditions. These Terms and Conditions apply to all site visitors, customers, and all other users of the site and our business. By using the Site or Service, you agree to these Terms and Conditions, without modification, and acknowledge reading them.
USE OF THE SITE AND SERVICE
To engage our services and/or access or use the Site, you must be 18 years of age or older and have the requisite power and authority to enter into these Terms and Conditions. Children under the age of 18 are prohibited from using our Services and the Site.
Information provided on the Site and in the Service related to Strategy, Creative and Technology solutions and other information are subject to change. Fearless Kiwi Limited makes no representation or warranty that the information provided, regardless of its source (the “Content”), is accurate, complete, reliable, current, or error-free. Fearless Kiwi Limited disclaims all liability for any inaccuracy, error, or incompleteness in the Content.
The services which we are to provide for you are outlined in the appropriate section of our Site or in our digital quote, and are accepted by you before we commence any work and/or provide any files to you.
In order to use the Service, you may be required to provide information about yourself including your name, email address, username and password, and other personal information. You agree that any registration information you give to Fearless Kiwi Limited will always be accurate, correct, and up to date.
You must not impersonate someone else or provide account information or an email address other than your own. Your account must not be used for any illegal or unauthorised purpose. You must not, in the use of the Service, violate any laws in your jurisdiction.
You may use the Site and Service for lawful purposes only. You agree to be financially responsible for all purchases made by you or someone acting on your behalf through the Site. You agree to use the Site and to purchase services or products through the Site for legitimate purposes only. You shall not post or transmit through the Site any material which violates or infringes the rights of others, or which is threatening, abusive, defamatory, libellous, invasive of privacy or publicity rights, vulgar, obscene, profane, or otherwise objectionable, contains injurious formulas, recipes, or instructions, which encourages conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any law.
REFUSAL OF SERVICE
The Services are offered subject to our acceptance of your order or requests. We reserve the right to refuse service to any order, person or entity, without the obligation to assign reason for doing so. No order is deemed accepted by us until our fees have been approved and/or payment has been processed. We may at any time change or discontinue any aspect or feature of the Site or Service, subject to us fulfilling our previous responsibilities to you based on acceptance of your payment.
We will email you to confirm the placement of your order and with details concerning product delivery. In the event that there is an error in this email confirmation, it is your responsibility to inform us as soon as possible.
The fees which we will charge or the manner in which they will be arrived at, are set out in our quote and/or letter of engagement.
If our quote and/or letter of engagement specifies a fixed fee, we will charge this for the agreed scope of our services. Work which falls outside that scope will be charged on an hourly rate basis. We will advise you as soon as reasonably practicable if it becomes necessary for us to provide services outside the agreed scope and if requested, give you an estimate of the likely amount of the further costs.
Where our fees are calculated on an hourly basis, these rates are available on request. Differences in those rates reflect the experience and specialisation of our professional staff. Hourly rates are regularly reviewed and may be amended from time to time without reference to you. Time spent is recorded in 6 minute units, with time rounded up to the next unit of 6 minutes.
Disbursements and expenses:
Payments may have to be made to other people for work to be done, for example, proofing fees, search fees, support fees, agency fees, service fees and similar payments (called disbursements). We cannot pay these amounts on your behalf unless we first receive payment from you. We reserve the right to ask you either for the specific amount or for an approximate amount to cover these expenses. This will ensure that we are not out of pocket.
If we instruct any other person, we reserve the right to require payment of that person’s estimated fees beforehand and you authorise us to make payment to that person from the money paid into our bank account. By instructing that person, we are obligated to pay that person’s fees and accordingly we require protection for payment. We may require you to enter into a payment arrangement directly with that party.
We charge an additional office expense fee calculated at 5% of our fee to cover photocopying, phone calls, in-house printing, postage and other incidental office expenses, unless stated otherwise.
GST (if any):
GST is payable by you on our fees and charges.
We may send interim invoices to you, usually monthly and on the completion of the matter or termination of our engagement. We may also send you an invoice when we incur a significant expense.
Invoices are payable within 20 days of the date of the invoice, unless alternative arrangements have been made with us. We may require interest to be paid on any amount which is overdue. Interest will be calculated at the rate of 12% per month. All costs in relation to the collection of overdue accounts will be added to your account.
We may ask you to pre-pay amounts to us, or to provide security for our fees and expenses.
Although you may expect to be reimbursed by a third party for our fees and expenses, and although our invoices may at your request or with your approval be directed to a third party, you will nonetheless remain responsible for payment to us if the third party fails to pay us.
You may terminate our retainer at any time with 30 days notice.
We may terminate our retainer with 30 days notice.
If our retainer is terminated you must pay us all fees due up to the date of the termination and all expenses incurred up to that date.
CANCELLATIONS, REFUNDS & RETURNS
See our Refunds & Cancellation policy.
RETENTION OF FILES, DOCUMENTS, RECORDS AND INFORMATION
We will keep a record of all important documents which we receive or create on your behalf on the following basis:
We may keep a record electronically and destroy originals. Wherever possible we will return the originals of all other documents to you.
At any time, we may dispose of documents which are duplicates, or which are trivial (such as emails which do not contain substantive information), or documents which belong to us.
We are not obliged to retain documents or copies where you have requested that we provide them to you, or to another person, and we have done so. However, we are entitled to retain copies for our own records if we wish to do so.
We will provide to you on request copies or originals (at our option) of all documents to which you are entitled under the Privacy Act 1993 or any other law. We may charge you our reasonable costs for doing this.
Where we hold documents that belong to a third party, you will need to provide us with that party’s written authority to uplift to obtain a copy of that document.
Unless you instruct us in writing otherwise, you authorise and consent to us (without further reference to you) destroying (or deleting in the case of electronic records) all documents held by us seven (7) years after our engagement ends, or earlier if we have converted those documents to an electronic format (other than any documents that we hold in safe custody for you or are otherwise obliged by law to retain for longer). We may retain documents for longer at our option.
We own copyright in all documents or work we create in the course of performing the services, but grant you a non-exclusive licence to use and copy the documents as you see fit for your own personal or commercial use. However, you may not permit any third party to copy, adapt or use the documents without our written permission.
We endeavour to describe and display the Service as accurately as possible. While we try to be as clear as possible in explaining the Service, please do not accept that the Site is accurate, current, or error-free. From time to time we may correct errors in pricing and descriptions. We reserve the right to refuse or cancel any order with an incorrect price listing.
MATERIAL YOU SUBMIT DIRECTLY TO US AND/OR TO THE SITE
You shall not upload, post or otherwise make available on the Site any artwork, photos, or other materials (collectively “Materials”) protected by copyright, trademark, or other proprietary right without the express written permission of the owner of the copyright, trademark, or other proprietary right, and the burden of determining that any Materials are not so protected rests entirely with you. You shall be liable for any damage resulting from any infringement of copyrights, trademarks, or other proprietary rights, or any other harm resulting from such a submission. For all Materials submitted by you to the Site, you automatically represent or warrant that you have the authority to use and distribute the Materials, and that the use or display of the Materials will not violate any laws, rules, regulations, or rights of third parties.
INTELLECTUAL PROPERTY RIGHTS TO YOUR MATERIALS
We claim no intellectual property rights over the material you supply to Fearless Kiwi Limited. You retain copyright and any other rights you may rightfully hold in any content that you submit through the Site or Service. Content you submit to Fearless Kiwi Limited remains yours to the extent that you have any legal claims therein. You agree to hold Fearless Kiwi Limited harmless from and against all claims, liabilities, and expenses arising out of any potential or actual copyright or trademark misappropriation or infringement claimed against you. By posting material to us and/or on the Site, you grant us a worldwide, non-exclusive, irrevocable license to use the material for promotional, business development, and marketing purposes.
OUR INTELLECTUAL PROPERTY
The Site and Service contain intellectual property owned by Fearless Kiwi Limited, including trademarks, copyrights, proprietary information, and other intellectual property. You may not modify, publish, transmit, participate in the transfer or sale of, create derivative works from, distribute, display, reproduce or perform, or in any way exploit in any format whatsoever any of the Site or Service Content or intellectual property, in whole or in part, without our prior written consent. We reserve the right to immediately remove you from the Service, without refund, if you are caught violating this intellectual property policy.
We will hold in confidence all information concerning you or your affairs that we acquire during the course of acting for you. We will not disclose any of this information to any other person except:
(a) To the extent necessary or desirable to enable us to carry out your instructions; or
(b) To the extent required by law.
Confidential information concerning you will as far as practicable be made available only to those within our firm who are providing our services for you.
CONFLICTS OF INTEREST
We have procedures in place to identify and respond to conflicts of interest. If a conflict of interest arises we will advise you of this.
DUTY OF CARE
Our duty of care is to you and not to any other person. Before any other person may rely on our advice, we must expressly agree to this.
We may at any time amend these Terms and Conditions. Such amendments are effective immediately upon notice to you by us posting the new Terms and Conditions on this Site. Any use of the Site or Service by you a!er being notified means you accept these amendments. We reserve the right to update any portion of our Site and Service, including these Terms and Conditions, at any time. We will post the most recent versions to the Site and list the effective dates on the pages of our Terms and Conditions.
LIMITATION OF LIABILITY
YOU AGREE THAT UNDER NO CIRCUMSTANCES SHALL WE BE DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR ANY OTHER DAMAGES ARISING OUT OF YOUR USE OF THE SITE OR SERVICE. ADDITIONALLY, FEARLESS KIWI LIMITED, AND ITS OFFICERS AND EMPLOYEES, IS NOT LIABLE FOR DAMAGES IN CONNECTION WITH (I) FAILURE, PERFORMANCE, ERROR, OMISSION, DENIAL OF ATTACK, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, OR LINE OR SYSTEM FAILURE; (II) LOSS OF REVENUE, ANTICIPATED PROFITS, BUSINESS, SAVINGS, GOODWILL OR DATA; AND (III) THIRD PARTY THEFT OF, DESTRUCTION OF, UNAUTHORISED ACCESS TO, ALTERATION OF, OR USE OF YOUR INFORMATION OR PROPERTY, REGARDLESS OF OUR NEGLIGENCE, GROSS NEGLIGENCE, FAILURE OF AN ESSENTIAL PURPOSE AND WHETHER SUCH LIABILITY ARISES IN NEGLIGENCE, CONTRACT, TORT, OR ANY OTHER THEORY OF LEGAL LIABILITY. THE FOREGOING APPLIES EVEN IF FEARLESS BRNDS LIMITED HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN THE DAMAGES. IN THOSE COUNTRIES OR STATES THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR THE DAMAGES, OUR LIABILITY IS LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL FEARLESS KIWI LIMITED'S CUMULATIVE LIABILITY TO YOU EXCEED THE TOTAL PURCHASE PRICE OF THE SERVICE YOU HAVE PURCHASED FROM FEARLESS KIWI LIMITED, AND IF NO PURCHASE HAS BEEN MADE BY YOU FEARLESS KIWI LIMITED'S CUMULATIVE LIABILITY TO YOU SHALL NOT EXCEED $100.
THIRD PARTY RESOURCES
The Site and the Service contain links to third party websites and resources. You acknowledge and agree that we are not responsible or liable for the availability, accuracy, content, or policies of third party websites or resources. Links to such websites or resources do not imply any endorsement by or affiliation with Fearless Kiwi Limited. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
You shall indemnify and hold us harmless from and against any and all losses, damages, settlements, liabilities, costs, charges, assessments, and expenses, as well as third party claims and causes of action, including, without limitation, attorney’s fees, arising out of any breach by you of any of these Terms and Conditions, or any use by you of the Site or Service. You shall provide us with such assistance, without charge, as we may request in connection with any such defence, including, without limitation, providing us with such information, documents, records, and reasonable access to you, as we deem necessary. You shall not settle any third party claim or waive any defence without our prior written consent.
EFFECT OF HEADINGS
The subject headings of the paragraphs and subparagraphs of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions.
ENTIRE AGREEMENT; WAIVER
This Agreement constitutes the entire agreement between you and Fearless Kiwi Limited pertaining to the Site and Service and supersedes all prior and contemporaneous agreements, representations, and understandings between us. No waiver of any of the provisions of this Agreement by Fearless Kiwi Limited shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by Fearless Kiwi Limited.
All notices, requests, demands, and other communications under this Agreement shall be via electronic mail to [email protected]
GOVERNING LAW; VENUE; MEDIATION
This Agreement shall be construed in accordance with, and governed by, the laws of England as applied to contracts that are executed and performed entirely in England. The exclusive venue for any arbitration or court proceeding based on or arising out of this Agreement shall be in England courts. The parties agree to attempt to resolve any dispute, claim, or controversy arising out of or relating to this Agreement by mediation. The parties further agree that their respective good faith participation in mediation is a condition precedent to pursuing any other available legal or equitable remedy, including litigation, arbitration, or other dispute resolution procedures.
RECOVERY OF LITIGATION EXPENSES
If any legal action or any arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorney’s fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.
If any term, provision, covenant, or condition of this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.
These Terms apply to any current engagement and also to any future engagement, whether or not we send you another copy of them.
We are entitled to change these Terms from time to time, in which case we will send you another amended Terms.
Our relationship with you is governed by United Kingdom law.
These Terms and Conditions bind and inure to the benefit of the parties’ successors and assigns. These Terms and Conditions are not assignable, delegable, sub-licenceable, or otherwise transferable by you. Any assignment, delegation, or sublicense by you is invalid.
10 September 2021