PhotonMark Web Services Terms and Conditions

1. Parties and application

1.1 These Terms and Conditions (Terms) govern services supplied by PhotonMark Ltd, a New Zealand company (company number 6275469), trading as PhotonMark Web Services (PhotonMark, we, us or our). The customer named in a Quote, invoice, order or other written service record is the Customer (Customer, you or your).

1.2 These Terms apply to website design and development, website rebuilding and migration, hosting, website care, managed forms, domain and DNS work, business-email support, search engine optimisation, advertising and marketing support, social-profile work, online-payment integration, customer portals, databases, custom web systems and related professional or technical services (Services).

1.3 The Services are supplied primarily for business use. A Service is not included merely because it is technically possible or mentioned on PhotonMark’s website. The agreed Quote and Service Description define what PhotonMark must deliver.

2. Definitions

2.1 In these Terms, unless the context requires otherwise:

• Business Day means a day other than a Saturday, Sunday or public holiday observed in Palmerston North, New Zealand.

• Confidential Information means non-public commercial, technical, financial, security or personal information disclosed by one party to the other, but excludes information that is public other than through breach, was already lawfully known, is independently developed, or is lawfully received from another source without a duty of confidence.

• Customer Content means text, images, logos, trade marks, data, instructions, products, prices, offers, claims, policies and other material supplied, selected or approved by or for the Customer.

• Customer Data means data supplied to PhotonMark by or for the Customer, including account, project and support data. End User Data means personal information or other data submitted by or about the Customer’s website visitors, customers, staff or users.

• Deliverables means the project-specific files, configuration, reports, content or other outputs expressly listed in the Quote.

• Quote means an accepted quote, proposal, statement of work, service schedule, order confirmation or other written document that identifies the Customer, Services, fees or scope.

• Service Description means the specific scope, package, plan, inclusions, exclusions, assumptions, limits and service period recorded in the Quote or expressly incorporated into it.

• Third-Party Service means a product, platform, account, licence or service supplied by someone other than PhotonMark, including domain registries and registrars, Cloudflare, hosting infrastructure, email providers, Google, Meta, Stripe, social networks, analytics tools, software libraries, plugins and stock-media providers.

3. Formation of the agreement and authority

3.1 The agreement between PhotonMark and the Customer (Agreement) is formed when PhotonMark accepts the Customer’s order and the Customer does any of the following after receiving or being directed to these Terms: signs or electronically accepts a Quote; confirms acceptance in writing; pays a deposit or invoice; instructs PhotonMark to begin; provides access for the work to begin; or continues using a recurring Service after a renewal has been agreed.

3.2 The person accepting the Agreement for a company, partnership, trust, incorporated society or other organisation confirms that they are authorised to bind that organisation. PhotonMark may reasonably ask for evidence of authority before acting on instructions that affect ownership, billing, domains, DNS, email, advertising, payments or data.

3.3 Electronic signatures, email acceptance and electronic copies may be used. The Customer should retain the Quote and the version of these Terms identified in it.

4. Documents forming the agreement and priority

4.1 The Agreement consists of, in descending order of priority: (a) a later written variation signed or expressly accepted by both parties; (b) the Quote; (c) any service-specific schedule attached to or incorporated into the Quote; (d) these Terms; and (e) any package or plan description expressly incorporated into the Quote.

4.2 If documents conflict, the higher-priority document controls only to the extent of the conflict. A specific project provision controls a general provision.

4.3 A purchase order or other Customer document is administrative only. Terms printed on or linked from a Customer purchase order do not amend the Agreement unless PhotonMark expressly agrees to them in writing.

4.4 PhotonMark’s Privacy Policy describes how PhotonMark handles personal information for its own enquiries, customer administration, billing and support. Where PhotonMark processes End User Data solely to provide a Customer service, clause 19 also applies.

5. Term, renewal and changes to these Terms

5.1 A one-off project begins when the Agreement is formed and continues until the Services are completed or the Agreement is ended under these Terms. An ongoing Service begins on activation or the date stated in the Quote and continues for the agreed paid term.

5.2 Annual hosting and care do not renew automatically unless the Customer has separately agreed to automatic renewal or an authorised recurring payment. PhotonMark will normally issue a renewal notice at least 14 days before expiry. A displayed monthly equivalent for an annual plan does not create a monthly cancellation right.

5.3 The version of these Terms accepted for a one-off project continues to govern that project unless both parties agree otherwise in writing.

5.4 PhotonMark may update these Terms for future orders by publishing a new version. For an existing paid ongoing Service, PhotonMark will give at least 30 days’ written notice of a material change. A change that materially disadvantages the Customer will normally take effect at the next renewal, unless an earlier change is reasonably necessary to comply with law, address an urgent security risk, or reflect a mandatory Third-Party Service change. The Customer may decline the next renewal before it is due.

5.5 A clarification or administrative change that does not materially reduce the Customer’s rights may take effect on notice. No change retroactively increases fees for a current paid term.

6. Quotes, scope and package boundaries

6.1 PhotonMark will perform the Services with reasonable care and skill, in accordance with the agreed scope. Only items expressly included in the Quote or Service Description are included in the fees.

6.2 Published prices and package descriptions are starting points and marketing information. The Quote confirms the binding scope, assumptions, page or section limits, revision rounds, features, delivery items, payment schedule and any customer-supplied material.

6.3 Where a published website package is used, it is based on PhotonMark’s standard design system. A standard page is a normal service, about, contact or similar page within that system. Unusually long pages, custom layouts, large galleries, complex forms, policy drafting, professional copywriting, booking, ecommerce, memberships, customer accounts, databases, automation and custom applications are additional unless the Quote says otherwise.

6.4 When an agreed package includes a managed enquiry form, the Quote may include one simple utility privacy page based on Customer-supplied and Customer-approved information. PhotonMark does not provide legal, accounting, tax, employment, regulatory or industry-compliance advice. Any template or drafting assistance must be reviewed by the Customer and, where appropriate, a qualified adviser.

6.5 Illustrations, concepts, demonstrations, estimates and examples do not expand the scope or guarantee a particular design, result, traffic level, revenue level or completion date unless expressly stated in the Quote.

7. Customer contact, information and cooperation

7.1 The Customer must nominate a contact authorised to give instructions and approvals. PhotonMark may rely on instructions from that person until notified otherwise in writing.

7.2 The Customer must provide, in a timely manner: accurate business and contact information; lawful Customer Content; required account access; existing provider information; approvals; consolidated feedback; and any decision reasonably needed to perform the Services.

7.3 The Customer must disclose known dependencies that may be affected by the work, including business email, subdomains, booking systems, verification records, payment links, analytics, advertising, customer portals, remote access, integrations and third-party applications.

7.4 The Customer must not send passwords, secret keys, complete payment-card information or similarly sensitive credentials through a public form or ordinary email. The parties will use a more appropriate access method where reasonably available.

7.5 PhotonMark is not responsible for delay, rework or loss caused by inaccurate, incomplete or late Customer information, approvals or access, except to the extent PhotonMark failed to exercise reasonable care after becoming aware of the issue. Any resulting additional work may be quoted.

8. Timelines, feedback, approval and project inactivity

8.1 Delivery dates are estimates unless the Quote expressly states that a date is fixed. A timeline begins only after PhotonMark has received any required payment, content, access and instructions.

8.2 PhotonMark may provide a staging link, draft, report or other review item. Unless another period is stated, the Customer should provide one consolidated response within five Business Days. Late or fragmented feedback may move the delivery schedule and may use an included revision round or incur additional charges.

8.3 PhotonMark will not normally publish a new website or make a material production change without the Customer’s written approval. Approval may be given by email. If the Quote expressly authorises a scheduled or routine change, separate approval is not required for each such change.

8.4 If the Customer does not provide a required response for 20 Business Days, PhotonMark may pause the project and reallocate scheduled time. If the Customer remains unresponsive for 60 days after written notice, PhotonMark may close the project, invoice work performed and committed costs, and require a new timeline and reasonable restart fee before resuming.

8.5 A Deliverable is accepted when the Customer approves it, instructs PhotonMark to launch or use it, or uses it in production, subject to PhotonMark’s obligation to correct qualifying defects under clause 23 and any rights that cannot be excluded by law.

9. Variations and additional work

9.1 A request that changes pages, sections, functionality, integrations, content volume, revision rounds, platform, data, delivery method, timing or other agreed assumptions is a variation.

9.2 PhotonMark will identify material out-of-scope work and, before proceeding, will normally provide an updated fixed quote, an estimate, or the applicable time-based charging basis. A variation is effective when accepted in writing, including by email.

9.3 Small fixed tasks may be charged at the published minimum charge. Longer technical work is charged at the rate and increments stated in the Quote or current Pricing page, or under a fixed quote. If a task is likely to exceed the basis initially agreed, PhotonMark will confirm the revised basis before continuing, except where immediate action is reasonably necessary to contain an urgent security incident and the Customer has authorised emergency work.

9.4 A variation may change the delivery date. Included support or edit time is not a cash credit, does not carry forward unless the plan says so, and cannot be applied to Third-Party Service charges.

10. Fees, GST, invoices and payment

10.1 Unless stated otherwise, fees are in New Zealand dollars and exclude GST. GST and approved Third-Party Service charges are shown separately on the Quote or invoice.

10.2 The Customer must pay deposits, milestone invoices, annual charges and other amounts by the due dates in the Quote or invoice. PhotonMark may require payment in advance for setup, migration, third-party purchases, advertising, hosting, care, emergency work or a defined project stage.

10.3 If the Customer disputes an invoice, it must give PhotonMark written details promptly and pay the undisputed portion by the due date. The parties will work in good faith to resolve the disputed portion. A failure to dispute by the due date does not waive a right that cannot lawfully be waived, but may limit PhotonMark’s ability to investigate old records.

10.4 If an amount is overdue, PhotonMark may pause new work immediately. After written notice and at least seven days to remedy, PhotonMark may suspend an affected hosted or managed Service. Earlier action may be taken where required by a provider, law or urgent security risk. The Customer remains liable for amounts already due and for reasonable external debt-recovery costs actually incurred.

10.5 PhotonMark may charge reasonable restoration or reactivation work after overdue amounts are paid. The Customer may not withhold or set off an undisputed amount except where required by law.

10.6 Payment-processing fees that a provider does not return may be deducted from a discretionary refund. This does not limit a refund or remedy required by law.

11. Third-Party Services and charges

11.1 Third-Party Services are governed by their own terms, privacy practices, eligibility rules, acceptable-use rules, availability and prices. The Customer must comply with those terms where the Third-Party Service is held or used for the Customer.

11.2 PhotonMark normally recommends that the Customer owns and pays directly for domains, email seats, advertising accounts, payment accounts, software subscriptions, licences and other business accounts. If PhotonMark purchases or administers an agreed third-party cost, the supplier amount and a disclosed handling fee may apply.

11.3 The Customer authorises PhotonMark to communicate with and make agreed configuration changes in relevant Third-Party Services. PhotonMark will use reasonable care but does not control provider outages, policy changes, account reviews, suspensions, pricing, search algorithms, advertising auctions, registry decisions or discontinued features.

11.4 PhotonMark is not liable for a Third-Party Service failure merely because PhotonMark recommended, configured or linked it. This clause does not excuse a failure by PhotonMark to exercise reasonable care in selecting, configuring or administering the Third-Party Service within the agreed scope.

11.5 If a mandatory provider change materially affects the Service, the parties will discuss a reasonable alternative, revised scope or termination of the affected part. Additional work and new provider charges are not included unless agreed.

12. Domains, DNS and business email

12.1 A Customer domain should be registered in the Customer’s legal name or an account controlled by the Customer wherever practical. Assistance with registration, renewal, transfer or DNS management does not transfer ownership to PhotonMark.

12.2 Unless the Quote says PhotonMark will manage renewal, the Customer is responsible for accurate registrant details, recovery access, renewal notices and timely payment. PhotonMark cannot guarantee that a desired domain is available or that a registry or registrar will accept, retain or transfer a registration.

12.3 DNS and nameserver changes can affect websites, email, subdomains, verification, remote services and integrations. Caching, propagation, registry and provider behaviour can also affect timing. PhotonMark will use reasonable care to record the available configuration, preserve disclosed records, make the smallest agreed change, test relevant paths and keep a reasonable rollback record where the system allows.

12.4 The Customer must identify how the business receives and sends email and disclose other important domain services before a change. PhotonMark does not promise zero interruption and is not responsible for an undisclosed dependency, a pre-existing configuration fault or a provider failure, except to the extent PhotonMark should reasonably have identified the issue within the agreed review and failed to exercise reasonable care.

12.5 Email setup, mailbox migration, historic-message transfer, deliverability repair, SPF or DKIM remediation and ongoing mail support are separate unless expressly included. No provider can guarantee that every message will be accepted, delivered, classified correctly or free from spam filtering.

12.6 If a problem is directly caused by PhotonMark’s failure to follow the agreed change plan with reasonable care, PhotonMark will use reasonable efforts to restore or correct the affected configuration. The remedies and liability limits in these Terms apply.

13. Website builds, rebuilds and migrations

13.1 PhotonMark will build the website for the content, functionality and current major browsers and reasonably current mobile devices identified or reasonably implied by the Quote. Compatibility with obsolete browsers, unusual devices, third-party extensions or future platform changes is not included unless stated.

13.2 Unless a particular accessibility standard is expressly included, PhotonMark will apply reasonable general web practices but does not warrant legal compliance with a specified accessibility standard. The Customer must identify any sector-specific, contractual or statutory accessibility requirement before the Quote is accepted.

13.3 A rebuild or migration depends on access to the existing provider, website, domain, files, database, content and licences. PhotonMark does not guarantee that all material can be extracted, that proprietary functionality can be reproduced, or that existing traffic, ranking or integrations will remain unchanged. PhotonMark will identify material known limitations where reasonably possible.

13.4 URL redirects, metadata preservation, analytics continuity, search-console changes and migration testing are included only to the extent stated in the Quote. The Customer should not cancel an existing provider until PhotonMark confirms that required access, content, domain and handover information have been obtained.

13.5 PhotonMark may take a pre-change copy or record where access and the scope permit. That copy is a migration aid, not a guarantee that every legacy system, server configuration, email or third-party integration can be restored.

13.6 The Customer is responsible for final review of names, phone numbers, addresses, services, prices, qualifications, claims, links, forms, policies and other business facts before launch.

14. Hosting, website care and service availability

14.1 PhotonMark will use reasonable efforts to provide hosting, SSL, monitoring, backups, checks and support in accordance with the agreed plan. Unless a separate service-level agreement is signed, response times are targets rather than repair or availability guarantees, and no 24/7 support is included.

14.2 Hosting and managed systems may be unavailable because of maintenance, security work, internet or power failures, provider outages, denial-of-service activity, registry or DNS issues, software defects, emergency work or events beyond reasonable control. PhotonMark will use reasonable efforts to minimise avoidable disruption.

14.3 PhotonMark may move a Service to reasonably equivalent infrastructure or change an underlying provider where needed for security, reliability, support or availability. PhotonMark will give notice of a material customer-facing change where reasonably practicable.

14.4 Backups are made and retained only at the frequency and level stated in the agreed plan. Backups are a recovery aid, not a permanent archive or substitute for the Customer retaining important original content and business records. Restoration depends on the availability and integrity of a usable backup and may be chargeable if the event is outside the included plan.

14.5 The Customer must not use or permit a Service to be used for unlawful, infringing, deceptive, abusive or harmful activity; malware; unauthorised access; attacks; spam; excessive automated traffic; or activity that threatens PhotonMark, another customer or a provider. PhotonMark may take proportionate action under clause 24.

14.6 A resource-intensive, attacked or misconfigured website may require remediation, a revised plan, rate limiting or a different platform. PhotonMark will explain material additional cost before continuing where circumstances permit.

15. Managed forms, notifications and databases

15.1 A static public website may use a separate managed form backend. Where included, the backend receives valid submissions, records them in a private database, attempts to send a notification to the agreed inbox and applies the backup and retention arrangements stated in the plan or Quote.

15.2 Unless a different system is agreed, the managed database is the delivery record if an email notification fails. Email is a notification channel and is not guaranteed. The Customer must maintain the recipient mailbox, monitor enquiries, notify PhotonMark of changed addresses or suspected failures, and remain responsible for responding to end users.

15.3 A standard managed form is not a customer relationship management system, public dashboard, permanent archive or high-sensitivity data service. Custom workflows, file uploads, health information, financial information, identity documents, children’s information or other higher-risk data require an express written scope and appropriate safeguards.

15.4 Spam filters, bots, user error, mailbox rules and provider behaviour may affect submissions or notifications. PhotonMark may use reasonable anti-spam and security measures, but does not guarantee that every unwanted submission will be blocked or every genuine submission will be accepted.

15.5 The Customer is responsible for giving website users an accurate privacy notice and collecting only information reasonably needed for the Customer’s purpose. Export, access, correction, retention and deletion are governed by the Quote, Privacy Policy and clauses 19 and 26.

16. SEO, advertising, analytics and social profiles

16.1 PhotonMark may provide technical, on-page and local search engine optimisation, Google Business Profile support, analytics, conversion tracking, landing pages, Google Ads work, social-profile setup, content support and related marketing Services where included in the Quote.

16.2 The Customer owns or controls its advertising, analytics, business-profile and social accounts wherever practical. Advertising spend, media spend, paid tools and provider charges are separate from PhotonMark’s fees unless expressly stated.

16.3 The Customer is responsible for approving budgets, locations, audiences, offers, claims, prices, terms, regulated statements and final campaign decisions. PhotonMark may refuse or pause content or a campaign that appears misleading, unlawful, ineligible or inconsistent with provider policies.

16.4 Search engines, maps, AI-assisted search systems, advertising platforms and social networks control indexing, rankings, approvals, auctions, account restrictions, delivery and reporting. PhotonMark does not guarantee rankings, Maps placement, inclusion in generated answers, traffic, leads, conversion rates, advertising cost, platform approval, review volume, sales or revenue unless a Quote contains a separate written guarantee with an objective metric, benchmark, conditions and remedy.

16.5 Analytics and conversion measurements may be incomplete or affected by consent settings, browser restrictions, ad blockers, device changes, call routing, provider modelling, deleted cookies and user behaviour. Reports are operational summaries based on available provider data, not audited financial statements.

16.6 AEO, GEO and similar terms may describe visibility in AI-assisted search. Unless the Quote says otherwise, PhotonMark treats that work as part of good technical, content and local SEO rather than a separate guaranteed-placement service.

16.7 Social-profile setup does not include ongoing posting, moderation, customer replies, crisis management or reporting unless included in writing. The Customer remains responsible for account conduct and communications with its customers.

16.8 If Customer lists, audience data or personal information are used for advertising or marketing, the Customer confirms that it has a lawful basis, any required notices or consents, and authority to provide the data and issue the instructions.

17. Stripe, online payments and custom systems

17.1 Payment, subscription, portal, account, database, dashboard and automation work is supplied only under a written scope that identifies the intended workflow, supported users, provider accounts, data, acceptance tests, hosting and ongoing maintenance responsibilities.

17.2 Unless expressly agreed otherwise, the Customer is the merchant and contracts directly with its buyers or users. The Customer is responsible for products and services sold, prices, taxes, invoices, consumer terms, privacy notices, fulfilment, cancellations, refunds, disputes, chargebacks, sanctions, licences and industry-specific compliance.

17.3 The Customer’s Stripe or other payment account and funds should remain under the Customer’s ownership and control. Payment-provider fees, reserves, holds, currency conversion, refunds, disputes and chargebacks are separate. PhotonMark is not a bank, payment processor, tax adviser or financial adviser.

17.4 Where suitable, PhotonMark may use provider-hosted checkout or billing pages so the payment provider receives card details. PhotonMark does not normally store complete payment-card details. The Quote must identify any different architecture and any additional compliance responsibility.

17.5 The Customer must complete reasonable acceptance testing using test data before a production launch and must protect production credentials. A new feature, provider change, regulatory change, security update or ongoing support requirement after acceptance is additional unless included in a maintenance plan.

17.6 PhotonMark may decline a payment or custom-system project involving illegal, prohibited, highly regulated or unusually high-risk goods, services or data. No system is guaranteed to be free from all defects, attacks or provider outages.

18. Customer Content, legal compliance and acceptable use

18.1 The Customer retains responsibility for Customer Content and final business decisions. The Customer warrants that it has all rights, licences, permissions and approvals needed for PhotonMark to use the Customer Content and follow the Customer’s lawful instructions.

18.2 Customer Content and use of the Services must be accurate where it states facts, genuinely held where it states opinions, and must not be misleading, defamatory, unlawful, infringing, discriminatory, threatening, malicious, deceptive, privacy-invasive or harmful. It must not promote illegal activity, impersonate another person, distribute malware, facilitate unauthorised access or send unlawful spam.

18.3 The Customer must review and approve factual claims, qualifications, safety statements, prices, offers, comparative claims, reviews, testimonials and regulated content before publication. PhotonMark may rely on that approval but may refuse, remove or require correction of material that reasonably appears unlawful or likely to expose PhotonMark or a provider to material risk.

18.4 Unless expressly included, the Customer is responsible for obtaining appropriate legal, privacy, cookie, ecommerce, refund, employment, health, financial, advertising and industry-specific policies or advice. PhotonMark may provide technical implementation but does not warrant that Customer Content or a Customer business process complies with all applicable law.

18.5 The Customer grants PhotonMark a non-exclusive licence to copy, adapt, host, transmit and otherwise use Customer Content only as reasonably needed to perform, support and demonstrate drafts of the Services.

19. Privacy and End User Data

19.1 Each party must comply with the Privacy Act 2020 and other privacy law that applies to it. PhotonMark’s Privacy Policy applies to personal information PhotonMark collects for its own enquiries, customer relationship, billing, security and support.

19.2 To the extent PhotonMark stores or processes End User Data solely on the Customer’s behalf, PhotonMark will: use it only to provide, secure, maintain and support the agreed Customer Service; limit access to people and providers who need it for that purpose; apply reasonable technical and organisational safeguards; and not sell it or use it for unrelated advertising.

19.3 The Customer remains responsible for its End User Data and for giving required privacy notices, identifying lawful purposes, collecting no more than is reasonably necessary, responding to individuals, making lawful disclosures and deciding whether a breach is notifiable. PhotonMark will provide reasonable assistance within the Service and may charge for substantial work outside the ordinary scope.

19.4 PhotonMark may use reputable subprocessors and service providers, including providers located outside New Zealand, where reasonably needed to deliver the Service. PhotonMark will take reasonable steps appropriate to the information and service to require relevant confidentiality, security and data-use protections.

19.5 The Customer must not use a standard form or standard hosting plan for sensitive or high-risk personal information unless the data type, purpose, safeguards, access, retention and incident responsibilities are expressly agreed in writing.

19.6 If PhotonMark becomes aware of a confirmed security incident materially affecting End User Data processed for the Customer, PhotonMark will notify the Customer without undue delay and provide reasonably available information and cooperation. Unless the Quote states otherwise, the Customer is responsible for statutory notifications to affected individuals and the Office of the Privacy Commissioner, with PhotonMark providing reasonable assistance.

19.7 End User Data is retained, exported and deleted according to the Quote, applicable plan, Privacy Policy and clause 26. Backup copies may remain until they expire through the ordinary protected rotation.

20. Security, credentials and incidents

20.1 Each party must take reasonable security precautions for systems and credentials under its control. The Customer must keep recovery details current, restrict administrator access, use multi-factor authentication where available, remove access for former staff and notify PhotonMark promptly of suspected compromise.

20.2 PhotonMark may create, receive or temporarily use credentials only as reasonably required for the agreed work. PhotonMark will not knowingly request complete payment-card details and will use a safer access process for sensitive credentials where reasonably available.

20.3 Security measures reduce risk but cannot guarantee that a website, account, email system, network, form or Third-Party Service will be free from attack, malware, vulnerability, unauthorised access, data loss or delay.

20.4 A party becoming aware of a material security incident affecting the other party’s systems or data must notify the other without undue delay, preserve relevant information, take reasonable containment steps and cooperate on a proportionate response. Neither party may make a public statement on behalf of the other without authority, except where required by law.

20.5 Emergency containment, forensic investigation, recovery, credential rotation or remediation that is not caused by PhotonMark’s breach of the Agreement is additional work unless included in a specific security plan.

21. Confidentiality

21.1 Each party must keep the other party’s Confidential Information confidential, use it only for the Agreement, and protect it with at least reasonable care.

21.2 A party may disclose Confidential Information to its personnel, subcontractors, insurers, funders and professional advisers who need it for the Agreement and are subject to appropriate confidentiality duties, or where disclosure is required by law, a court or regulator.

21.3 Where legally permitted, a party required to disclose the other’s Confidential Information will give reasonable advance notice and disclose only what is required.

21.4 On request or at the end of the Agreement, a party will return or delete Confidential Information where reasonably practicable, subject to backups, legitimate business records, legal obligations, dispute records and ordinary retention policies.

21.5 This clause continues for five years after the relevant disclosure, and indefinitely for trade secrets, credentials and personal information while they remain confidential or protected by law.

22. Intellectual property and portfolio use

22.1 Customer Content remains the property of the Customer or its licensors. PhotonMark does not obtain ownership merely by receiving or using it for the Services.

22.2 Once all invoices relating to a project are paid, the Customer receives a perpetual, worldwide, royalty-free licence to use, copy, host, modify and transfer the project-specific website files and Deliverables supplied for that Customer, subject to this clause and any third-party licence. A Quote may expressly assign specified project-specific rights instead.

22.3 PhotonMark retains ownership of its pre-existing and independently developed templates, design systems, software, libraries, tools, methods, workflows, know-how, generic components, server configuration and shared or managed backend services. To the extent any such material is embedded in an exported Deliverable, PhotonMark grants the Customer the licence reasonably needed to use that Deliverable for the Customer’s business, but not to sell the PhotonMark component as a standalone product.

22.4 Fonts, stock media, open-source software, plugins, APIs, provider components and other third-party material remain subject to their respective licences and may impose transfer, attribution, usage, account or payment conditions.

22.5 Source code for a custom system, deployment tooling, database infrastructure, internal administration tools and live managed services are included in a handover only if the Quote expressly says so.

22.6 PhotonMark will not publicly identify the Customer as a client, reproduce non-public Customer Content, or use the project as a portfolio case study without permission. Permission may be limited or withdrawn. Following withdrawal, PhotonMark will stop future online use within a reasonable time, but is not required to recall material already lawfully printed or distributed.

22.7 Before full payment, the Customer may review drafts but has no right to deploy or commercially use unpaid Deliverables except with PhotonMark’s written consent.

23. Quality, defects and warranties

23.1 PhotonMark warrants that it will perform the Services with reasonable care and skill and that project-specific Deliverables will materially conform to the accepted Quote at delivery.

23.2 The Customer should report a reproducible error or omission against the agreed scope within 20 Business Days after launch or delivery, with enough information for PhotonMark to investigate. PhotonMark will correct a qualifying defect within a reasonable time at no additional service fee.

23.3 A change of preference, new requirement, Customer Content correction, third-party change, browser or device change, provider outage, Customer or third-party modification, unsupported legacy environment, misuse or issue outside the accepted scope is not a qualifying defect and may be quoted separately.

23.4 Except for express commitments and rights that cannot be excluded, PhotonMark does not warrant that a Service will be uninterrupted, entirely error-free, immune from attack, compatible with every future system, accepted by a provider, or achieve a particular commercial, search, advertising or customer outcome.

23.5 Where reasonably possible, PhotonMark may first re-perform, repair, replace or provide a workaround for a defective Service before another monetary remedy is considered. This does not limit a remedy that must be provided by law.

24. Suspension and protective action

24.1 PhotonMark may suspend or restrict an affected Service where reasonably necessary because of: overdue payment after the notice in clause 10; a material security risk; unlawful or prohibited use; actual or threatened harm to systems, data, providers or other customers; a provider, registry, court or regulatory requirement; or a material breach that the Customer has not remedied after notice.

24.2 PhotonMark will, where reasonably practicable, give notice, explain the reason, limit action to what is proportionate, and allow a reasonable opportunity to remedy. Immediate action may be taken where delay would create material legal, security or operational risk.

24.3 PhotonMark will use reasonable efforts to restore the Service after the cause is remedied and amounts due are paid. Reasonable investigation, clean-up, reactivation or provider charges may be billed where the suspension arose from the Customer’s breach, systems, content or instructions.

24.4 Suspension does not cancel fees for an agreed fixed or annual term where the cause is attributable to the Customer. PhotonMark will not intentionally hold a Customer-owned domain as security for an unrelated disputed fee, but may withhold unpaid project Deliverables to the extent permitted by law.

25. Cancellation and termination

25.1 Before work begins, the Customer may request cancellation. If the request is made within three days of purchase and PhotonMark has not started work, activated hosting, configured a provider, registered or renewed a domain, or incurred a committed cost, PhotonMark will refund the amount less any non-recoverable payment-processing fees. This is additional to any remedy required by law.

25.2 The Customer may cancel a project at any time by written notice, but must pay for work reasonably performed to the cancellation date, completed stages, non-cancellable commitments, approved Third-Party Services and reasonable handover work. A deposit may be applied to those amounts; any balance is invoiced or refunded.

25.3 Hosting, care and other fixed-term Services are paid for the agreed term and are not normally refundable merely because the Customer changes its mind, changes provider, delays feedback or no longer needs the Service. The Customer may prevent renewal by declining it before the due date.

25.4 Either party may terminate an affected Service for a material breach if the breach is not remedied within seven Business Days after written notice, or a longer reasonable period stated in the notice where the breach cannot reasonably be remedied in seven days but corrective action has begun.

25.5 PhotonMark may terminate or suspend immediately for serious unlawful activity, intentional security abuse, fraud, insolvency, threats or abuse directed at personnel, or a breach that cannot reasonably be remedied, subject to applicable law.

25.6 PhotonMark may discontinue an ongoing Service for convenience on at least 30 days’ notice. If the Customer is not in default, PhotonMark will refund or credit unused full prepaid months of the discontinued Service and provide the reasonable handover described in clause 26.

25.7 Termination does not affect accrued rights, payment obligations or clauses intended to survive, including confidentiality, intellectual property, privacy, indemnities, liability, disputes and general provisions.

26. Handover, exports and deletion

26.1 When a paid Service ends, the Customer should request any available project-file or End User Data export within 30 days. Subject to full payment, licences, security and the agreed scope, PhotonMark will provide a reasonable export of included project-specific website files, available standard form data and reasonable handover information.

26.2 A handover does not include PhotonMark’s internal tools, shared backend, deployment system, source code, server image, provider account, database infrastructure or third-party material unless expressly included in the Quote.

26.3 Live managed form data is scheduled for deletion after the handover period. Backup copies expire through the ordinary protected rotation, ordinarily within 90 days, unless a different retention period is agreed or legal, tax, security, fraud-prevention or dispute obligations require longer retention.

26.4 PhotonMark does not guarantee that an archive, database or server configuration remains available after the handover period. If an archive still exists and can be safely restored, later investigation, export or restoration may be charged.

26.5 The Customer is responsible for arranging a replacement provider, updating billing and recovery contacts, extracting business records and meeting any legal retention obligation. PhotonMark will reasonably cooperate with an authorised transfer and may quote substantial migration or transition work.

27. Third-party claims and intellectual-property remedy

27.1 The Customer indemnifies PhotonMark against a third-party claim and the reasonable loss, liability and external legal cost finally incurred in relation to that claim, to the extent caused by: Customer Content that infringes another person’s rights; a product, service, statement, offer or business activity of the Customer; the Customer’s unlawful instruction or use of the Service; or the Customer’s material breach of clauses 16 to 20.

27.2 PhotonMark must notify the Customer promptly of a claim under clause 27.1, provide reasonable cooperation at the Customer’s cost, and not admit liability or settle the claim in a way that imposes a non-monetary obligation on the Customer without the Customer’s consent, not to be unreasonably withheld. The Customer may control the defence with competent advisers, subject to keeping PhotonMark reasonably informed.

27.3 PhotonMark will not knowingly include in a project-specific Deliverable material that infringes a third party’s intellectual property rights. If a third party makes a substantiated claim arising solely from PhotonMark-created project-specific material, PhotonMark may, at its option and expense: obtain the necessary right; modify or replace the affected material without materially reducing agreed functionality; or refund the fee reasonably attributable to the unusable affected material. This clause does not apply to Customer Content, third-party material selected or required by the Customer, or a modification not made by PhotonMark.

27.4 This clause is subject to clause 28, except to the extent a liability cannot lawfully be limited or arises from fraud or wilful misconduct.

28. Liability

28.1 Nothing in the Agreement excludes or limits liability for fraud, wilful misconduct, death or personal injury caused by negligence, or any liability or remedy that cannot lawfully be excluded or limited.

28.2 Subject to clause 28.1, neither party is liable to the other for indirect, consequential, exemplary or punitive loss, or for loss of profit, revenue, anticipated savings, opportunity, goodwill or business interruption, whether arising in contract, tort (including negligence), equity, statute or otherwise. This exclusion does not prevent recovery of an amount expressly payable under the Agreement or reasonable direct costs of restoring data where the loss was caused by a failure to perform an expressly agreed backup or restore obligation with reasonable care.

28.3 Subject to clause 28.1, PhotonMark’s total aggregate liability arising out of or in connection with: (a) a one-off project is limited to the total fees paid or payable for that project; and (b) an ongoing Service is limited to the fees paid or payable for the affected ongoing Service during the 12 months immediately before the event giving rise to the claim, or during the current agreed term if the Service has existed for less than 12 months. A Quote may state a different cap for a higher-risk Service.

28.4 PhotonMark is not liable for a Third-Party Service, Customer Content, Customer instruction, pre-existing fault, undisclosed dependency, unauthorised Customer or third-party change, or event beyond PhotonMark’s reasonable control, except to the extent the loss was caused by PhotonMark’s failure to exercise reasonable care within the agreed scope.

28.5 Liability is reduced to the extent the other party caused or contributed to the loss, failed to take reasonable mitigation steps, or failed to maintain a copy, access method or control that the Agreement made that party responsible for.

28.6 The limits and exclusions in this clause reflect the scope, fees, customer control of business accounts, availability of insurance and allocation of responsibility under the Agreement. The parties may agree a higher liability cap and corresponding fee in a Quote before work begins.

29. Consumer law and rights that cannot be excluded

29.1 Nothing in the Agreement limits the Fair Trading Act 1986 or any other right, guarantee, obligation or remedy that cannot lawfully be excluded, restricted or modified.

29.2 Where the Customer acquires the Services in trade for the purposes of a business, the parties agree in writing, to the maximum extent permitted by section 43 of the Consumer Guarantees Act 1993, that the Consumer Guarantees Act does not apply to the Agreement. The parties agree that contracting out is fair and reasonable because the Services are acquired for business use, the scope and price are recorded in writing, the Customer can ask questions and negotiate project-specific terms, and the Customer may obtain independent advice.

29.3 Clause 29.2 does not apply where the statutory requirements for contracting out are not met. If the Customer is legally a consumer or a protected statutory right applies, the Agreement must be read subject to that right and any inconsistent limitation is read down only to the minimum extent necessary.

30. Events beyond reasonable control

30.1 Neither party is liable for delay or failure caused by an event beyond its reasonable control, including natural disaster, fire, flood, epidemic, war, civil disturbance, government action, labour disruption, major internet or power failure, cyberattack not caused by that party’s failure to take reasonable precautions, registry or provider outage, or failure of an essential supplier (Force Majeure Event). Payment obligations for Services already supplied are not excused.

30.2 The affected party must notify the other as soon as reasonably practicable, take reasonable steps to reduce the effect and resume performance when able.

30.3 If a Force Majeure Event prevents a material part of a paid ongoing Service for more than 30 consecutive days, either party may terminate the affected part on written notice. PhotonMark will refund or credit unused full prepaid months for the terminated affected Service, less non-recoverable committed third-party costs.

31. Complaints and dispute resolution

31.1 A party should notify the other promptly of a complaint or dispute and provide reasonable details and supporting information. The parties will first try in good faith to resolve it through their usual project contacts.

31.2 If unresolved within 10 Business Days after a written dispute notice, either party may ask an authorised senior representative of each party to meet remotely or in person and attempt resolution.

31.3 If the dispute remains unresolved, the parties will consider mediation through an agreed New Zealand mediator before commencing court proceedings. Unless otherwise agreed, mediation costs are shared equally and each party bears its own adviser costs.

31.4 Nothing prevents a party seeking urgent interim relief, protecting intellectual property or security, recovering an undisputed debt, making a statutory complaint, or using the Disputes Tribunal where it has jurisdiction. The Customer must pay undisputed invoice amounts while a dispute is being resolved.

31.5 The Agreement is governed by New Zealand law. The parties submit to the non-exclusive jurisdiction of the courts of New Zealand.

32. Notices

32.1 A notice under the Agreement must be in writing and may be sent by email to the most recent service or billing address supplied by the receiving party. Notices to PhotonMark must be sent to support@photonmark.com unless PhotonMark gives another notice address.

32.2 An email notice is treated as received on the next Business Day after sending unless the sender receives an error or non-delivery notice. A security incident, suspension or urgent operational notice may also be communicated by phone or through a relevant provider account, but should be confirmed in writing where reasonably practicable.

32.3 Each party must keep its contact, billing and authorised-person details current.

33. Subcontracting, assignment and general provisions

33.1 PhotonMark may use employees, contractors, professional advisers and Third-Party Services to perform the Services. PhotonMark remains responsible for its contractual obligations, subject to the terms applying to Third-Party Services.

33.2 PhotonMark may assign the Agreement as part of a genuine sale, transfer or reorganisation of its business on written notice, provided the assignment does not materially reduce the Customer’s rights. The Customer may assign the whole Agreement as part of a genuine sale or transfer of its business with PhotonMark’s prior written consent, which will not be unreasonably withheld where the assignee accepts the Agreement and pays outstanding amounts.

33.3 The Agreement is the entire agreement about its subject matter and replaces prior discussions, proposals and representations, except for fraud and any document expressly incorporated under clause 4.

33.4 A waiver is effective only in writing and only for the specific matter waived. Delay or failure to enforce a right is not a waiver.

33.5 If a provision is unlawful or unenforceable, it is read down to the minimum extent necessary or severed, and the remainder continues.

33.6 The parties are independent contractors. The Agreement does not create a partnership, employment, fiduciary, franchise or agency relationship, and neither party may bind the other except as expressly authorised.

33.7 No person other than PhotonMark and the Customer has a right to enforce the Agreement, except a permitted assignee.

33.8 Headings aid reading and do not affect interpretation. The words including and includes do not limit what follows. A reference to writing includes email. Singular includes plural and vice versa.

33.9 Clauses concerning payment, confidentiality, privacy, intellectual property, handover, indemnity, liability, disputes and provisions intended by their nature to continue survive completion or termination.

34. Contact

34.1 Questions about these Terms, a Quote or a Service may be sent to support@photonmark.com.