1. Contractual Terms
1.1 These Terms are to be read in conjunction with any other documentation, including quotes and proposals, emails and other correspondence, outlining the provision of Services to you.
2. Provision of Services
2.1 We will provide our Services to you in accordance with the Terms as described in clause 1 above.
2.2 When we perform work for you, we shall use whatever resources we deem appropriate to complete that work for you. We will ensure that the work we do for you is carried out by competent and suitably experienced personnel in a professional manner and in accordance with current industry standards.
3.1 If possible, we will provide you with a fixed price quotation for the work to be completed. This price will be exclusive of GST. Disbursements will be specified to the extent that they can be anticipated in terms of the work being undertaken. Any quote shall be valid for 30 days from the date of the quotation unless advised to you otherwise.
3.2 If you decide not to proceed with the matter to completion after a quotation is provided, but we have we have ben instructed to carry out in the meantime, we will charge you for that work. That work will be charged at our current rates for the type of work completed.
3.3 We reserve the right to amend our quote if you do not adhere to the agreed implementation plan and/or, through your default, we are unable to complete the Services by the agreed completion date (please refer to Approval of Specifications below.)
4. Estimate of Costs
4.1 Where it is not possible to provide a quotation, we will give you an estimate if required. This price will be exclusive of GST. Disbursements will be specified to the extent that they can be anticipated in terms of the work being undertaken. Any estimate shall be valid for 30 days from the date of the estimate unless advised to you otherwise.
4.2 If you decide not to proceed with the matter to completion after a quotation is provided, but we have we have ben instructed to carry out in the meantime, we will charge you for that work. That work will be charged at our current rates for the type of work completed.
4.3 Where we become aware that the cost of the work undertaken will or is likely to exceed the estimate given we will discuss and explain the reasons for any significant cost increases that are likely to be incurred, prior to that work being undertaken. Please refer to Approval of Specifications below.
5. Approval of specifications
5.1 We will create project specification documentation in pdf or email format for larger design or development projects which will outline the functional and non functional requirements and define the financial quote or estimate of the project. You agree that you will have read and understand this specification prior to giving any approval of work to be undertaken. Any such document represents an agreement between us and you to attend to the work described by those specifications. Any additional requirements which are not contained in this specification will be considered additional billable items over and above the initial quote or estimate.
5.2 The Agreement to proceed in writing (eg email) or payment of the initial deposit confirms acceptance of the specification, the client's approval and permission to begin development.
5.3 The quote or estimate is aligned to a standard development timeline agreed with the client at specification time. Delays caused by the client will result in changes to the development timeline which may incur additional costs. Additional charges will also apply for work requested on an urgent basis.
5.4 If you wish to amend the specification after development has begun, we shall be entitled to charge you at our current rates for the amendments without the need to re quote or re-estimate unless specifically requested by you in writing to do so at the time of requesting the amendments.
5.5 Changes to the specification;
Minor alterations to the requirements outlined in the specification often need to take place.
Significant changes to requirements will potentially result in:
Resource allocation delays for new work.
Necessary changes and additions to design and development work already completed for the project.
Additional costs due to delays or necessary reworking of completed features.
It is important to request any necessary changes to the requirements of the project as soon as they arise. Not following this procedure is likely to result in increased costs and delays for your project. All alterations to the requirements will be matched against the budget of the original specification.
The company reserves the right to decide if an alteration is within or outside the original requirements outlined in the specification document.
lf an alteration falls outside of the original requirements a bill will be sent to the client.
5.6 The project is considered complete and accepted following launch and sign-off. Any changes requested to content or requirements following this time are considered new projects and will be billed for accordingly.
5.7 Work of an experimental nature prepared at the client's requests shall be considered an order and charged for accordingly.
5.8 You must advise us in writing within 30 days of completion if you believe the product or services provided do not meet the specification outlined in our agreements. If such advice is not received within that timeframe then the
6.1 We will issue you with an invoice for our Services either on an interim basis for work completed, or upon completion of the Services.
6.2 We will charge an additional charge for any alterations and additions requested to the Services. The charge for these additional services will be charged at the hourly rates advised to you with a minimum charge of thirty minute increments.
6.3 In addition to our charges for the Services, if work is to be carried out outside the Rotorua boundary, we will charge for our travel expenses should we be required to undertake travel in relation to the work undertaken. That travel shall be charged in accordance with the rate set out in our quote or estimate, or otherwise at a rate which is generally acceptable as appropriate for reimbursement.
6.4 All invoices are payable within seven (7) days from the date of issue (Due Date), unless we make other arrangements with you which are agreed in writing.
6.5 If you do not pay by the Due Date, then we may charge interest on all overdue accounts at the rate of 1.0% per month calculated on a daily basis from the Due Date until payment is made. This is without prejudice to any other rights or remedies available to us.
6.6 We will not charge interest on any amounts in dispute, provided we are satisfied that the dispute is not unreasonable.
6.7 All payments are non refundable unless we decide not to proceed with your project, and in which case, we will refund any deposit or advance payment made. A decision not to proceed with a project will not be sufficient reason for a refund.
6.8 You shall reimburse us for all costs, expenses or other sums reasonably incurred in exercising any right or remedy available to us consequent upon your default in paying us by the Due Date.
7. Continued Support
7.1 On the completion of the Services we will provide a reasonable level of telephone and email support related to the Services, free of charge. We do reserve the right to raise a charge for email and phone support where we feel an inappropriate level of support is being requested. We may charge for on-site support at the appropriate hourly rate. If on-site support is to incur any charges we will notify you before any work is carried out.
7.2 If the support or work arises as a direct result of our error, we will not charge you for the additional services related to correcting that error.
8. Right to Suspend Services
8.1 If you fail to pay us for any Service by the Due Date, we may suspend the provision of that and/or any other Service to you.
8.2 We will give you five working days written notice of our intention to suspend any Service, sent to your most recent postal address, or email address, held on our file.
8.3 If you do not pay us or reach agreement with us about payment within the five working days, we may suspend the provision of Services at the termination of that five working day period.
9. Right to Terminate Services or Agreement(s)
9.1 We may terminate this agreement or any related Service Agreement if an invoice issued to you remains unpaid for more than one (1) month from the Due Date.
10. Commencement of Services
10.1 We will not be liable to commence providing Services until you have signed this agreement and you have paid the deposit amount.
10.2 Unless otherwise specified, you must pay us a deposit of 25% of the quoted or estimated total cost within seven (7) working days of the signing or acceptance of this agreement.
11. Right to Communicate
11.1 From time to time, we may send information and offers to you about upgrades and other services offered by us. You agree that we may send you this information by any means including post, fax, email and mobile text messaging.
12.1 We may include a reference at the bottom of pages to any website we develop crediting the design, development and hosting to us. Websites developed by us may also be used in our marketing materials and website.
13.1 We will provide a warranty period of 30 days from the "Go Live" date in relation to any custom software development you purchase from us. We will undertake to repair free of charge to you, the customer any defects or address any issues that may occur in this time period as long as they are within the agreed product specifications.
14. Title of Goods
14.1 The title to any development or goods does not pass to you until you pay us in full. Upon payment of our invoices in full you shall receive ownership in the design work and any front-end HTML/CCS (where that code is not part of our existing template themes) provided by us. Other elements of the project will remain under sole ownership of their original owner. This includes but isn’t limited to the back end CMS software platform that powers the website and its third party components and libraries used under licence, some elements of the front-end code that is based on our internal theme frameworks.
The Customer will receive a license to use the software for the purposes of the project as outlined in this document as long as all hosting fees are paid. This software license cannot be transferred to any other hosting environment or provider. The Customer may not sub-license, rent or otherwise resell the use of the software in any way.
For the removal of any doubt, nothing in this document or any other document will confer any ownership or right in our proprietary system/platform which shall remain our intellectual property.
You agree that you or any third party, subsidiary or agent will not copy, sell, licence, the website software or parties thereof. Nor will these parties utilise confidential information supplied by us.
15. Intellectual Property, Copyrights and Trademarks
15.1 Subject to your Client Materials, which remain your property or your licensor’s property, we retain all Intellectual Property Rights in the Products and services but grant you a non-exclusive and non-transferable license for your use (solely in relation to the operation of your business). You shall only be able to use our or any third party software supplied by us, and identified as such, strictly on the terms of the licence under which it is supplied.
15.2 Other than as allowed under the Copyright Act 1994 and the conditions therein, you agree that you will not in any way sell, reproduce, adapt, distribute, transmit, publish or create derivative works from any part of the Client Website developed by us without our prior written consent (including but not limited to underlying code elements, or any part of the website design or layout).
15.3 You warrant that all Client Materials or instructions given to us will not cause us to infringe any patent, registered design, trademark or copyright in the execution of the Agreement and you agree to indemnify us against any action taken by a third party against us in respect of any such infringement.
15.4 We shall not be liable to any third party for using material provided by you that is subsequently shown to infringe the copyright and intellectual property rights of that third party. You shall be responsible to ensure that any material provided to us is either free for use (i.e. not subject to any patent, copyright or restriction), or that you have the right to use that material. You shall indemnify us to the extent permissible against any claims if it transpires that the material is, or was not, free for use.
16. Applicable Law
16.1 These terms and the relationship between us shall be governed by the laws of New Zealand and you agree to submit to the exclusive jurisdiction of the New Zealand Courts.
17. Exclusion of Liability
17.1 We shall not be liable for any special or consequential loss or damage of any kind resulting from the provision of Services, and for the purposes of this agreement, ‘consequential loss’ shall include without limitation, loss of use of product, loss of income or profits, and costs and expenses arising from, or as a result of, delays in delivery or any failure to deliver the Services.
18. Limitation of Liability
18.1 Our liability in respect of any claim for loss, damage or injury of any kind howsoever arising shall not in any event exceed the price of the Services supplied by us, which gives rise to such claim, or the actual loss or damage suffered, whichever is the lesser.
19. Acknowledgement of Terms
19.1 Unless you formally advise otherwise, your continued instruction will be deemed to be acceptance by you of this agreement. Nevertheless, to avoid any misunderstanding, you will be asked to read these Terms before signing any agreement with us.
20. Internet Services
20.1 We can provide you with a range of Internet products and services, including: web hosting, domain registration, and server hosting.
20.2 If you elect to subscribe to any of these Services, the following terms will apply;
Hosting and Support
You acknowledge that our hosting is provided by external suppliers and we can not guarantee the performance of those suppliers in terms of server availability for hosting. However we do have appropriate redundancies in place which are at or better than industry standard to maintain continuity of service for you.
Industry standard of Web hosting availability is defined as the ability to retrieve the HTTP headers from the hosting server, calculated on a monthly basis. The company monitors the server availability as a whole, not that of individual sites. Denial of service attacks or other types of attacks directed toward the web server resulting in or contributing to downtime will not be included in web hosting availability calculations.
Hosting charges cover hosting space, bandwidth, and data back up required for the customer's product. All hosting is provided by external by hosting suppliers.
Hosting charges do not cover any service, support, or maintenance required by you in order to ensure that your product continues to perform as required unless that service, support, or maintenance is required as a result of a deficiency in the work or service provided by us.
Hosting charges do not cover any recovery, repair, or service required on your product which is not the result of any deficiency in the work or services provided by us. We can not prevent an invasive attack on the customer's product by external parties, or guarantee that any ISP can prevent damage to your product. We shall only be liable to cover the cost of any recovery, repair, or service where that is the result of any deficiency in the work or services provided by us.
You agree that we may provide all reasonable support or service required to ensure the customer's product remains operational and secure without receiving prior approval of the cost.
We agree that any services provided in this regard will be communicated in writing to the customer within 48 hours of having been performed.
21. Cancellation of Services
21.1 You must give us at least 30 days notice of cancellation of web hosting and contracted maintenance services.
21.2 Notice must be given in writing on your business or company letterhead, and either signed by the account holder (the contact person listed in our records) or a company director.
21.3 You must settle any outstanding debts before your account is closed, otherwise your account will continue to renew.
22. Our Responsibilities
22.1 We agree to:
Provide high performance Internet services to you;
Be available during business hours by telephone for support and inquiries;
Be available by email at all times for support and inquiries;
Correct all problems as soon as we reasonably can do so;
Respond as soon as we can to emergency support requests;
Bill you correctly for the services you require;
Keep all software and systems up-to-date, secure and ??? and up to or better than industry standard.
22. Your Responsibilities
22.2 You agree to:
Provide us with correct contact details, and to keep them up-to-date;
Keep your account current, and not let invoices fall overdue;
22.3 Where we have agreed to provide website design and/or development services to you, you agree that you will:
- Provide all Client Materials as required;
- Provide any other information, ideas or suggestions which are to be expressly considered by you in designing and/or developing your Website; and
- Ensure that we are given such information as assistance as we reasonably require to enable us to design and/or develop your Website in an appropriate format and a timely manner;
- Where we provide website hosting services to you, you will, at your sole cost and expense, except to the extent that we have been contracted to provide those services, develop and maintain your Website);
- Provide your Materials to us in such form as reasonably prescribed by us from time to time, and grant us a non-exclusive, world-wide irrevocable licence to use your Materials for the purposes and duration of hosting your Website;
- Do all things reasonably necessary to enable us to host your Website;
- Ensure that the Materials you supply to us or any of the organisations involved in proving our services to you do not contain: Prohibited Content; a link to any Website that contains Prohibited Content; any viruses, Trojan horses, worms, time bombs or any other software program or routine designed for or capable of interfering with the operation of any of any of the servers used by us, or organisations used by us in providing our services to you,
- You must not do, or permit any other person to do, or deny to do anything that prevents or hinders us from providing our services to you to any other person.
- You will procure all necessary authorisations, licences and consents to enable us to have access to your Website in order to provide the Services required
22.3 We may prohibit the publication of the following content on our servers (including pictures, links, and text):
Any material that infringes any copyright, trademark, patent, common law, or rights of others;
- Any material that is or may be defamatory;
- Any material that is or may be offensive;
- Distribution lists to be used via unsolicited electronic mail or other mass electronic mailings;
- File archives of music, videos, images, without permission Bill you correctly for the services you
- IRC clients, bots, servers.
22.4 We may also prohibit the use of our servers for:
- Very high-trafficked websites, without permission;
- Offering free e-mail or webmail services to the public.
22.5 We will not screen the material you require publishing to our servers. Any material you require published is considered to be publicly accessible.
22.6 If you publish prohibited material you will be responsible for the traffic charges relating to all downloads of that material.
23. Other Matters
23.1 We are not liable for the protection or privacy of electronic mail or other information transferred through the Internet or any other network provider.
We do not make claim that you will receive continual and uninterrupted web hosting service during the term of this agreement. In no event shall we be liable to you for any damages resulting from or related to any failure or delay to provide service under this agreement if such delays or failures are due to strikes, riots, fire, inclement weather, acts of God, theft or vandalism or other causes beyond our control.
Email hosting services are provided via a third party and use of those services will be governed by the third party’s terms and conditions. Our current provider is 1stdomains.co.nz and their terms can be viewed on their website.
24.1 Where we have accepted a claim from you, we reserve the right, in our discretion, to either replace or correct the Products or Services. If we reasonably believe that the Products or Services cannot be replaced or corrected, we may credit the portion of the Price applicable to those Products and Services as satisfaction of the claim.
24.2 Our total liability for any loss arising from any defect or non-compliance of the Products and Services or any other breach by us of our obligations under the Agreement and these Terms and Conditions will not in any circumstances exceed the Price, unless there is written agreement otherwise.
24.3 We will not be liable for:
Any consequential indirect or special damage or loss of any kind; or
Any loss caused by your servants, agents or any other persons whatsoever.
24.4 You will indemnify us against any claim by your servants, agents or other persons in respect of any loss arising from any defect in or non-compliance of the Products and Services or in respect to any other matter whatsoever.
24.5 No warranty, condition or guarantee either express or implied is given by us as to the quality, state or condition of any Products or Services or as to their appearance, content or fitness for any particular purpose.
24.6 You acknowledge that, subject only to any representations or warranties expressly recorded in the Agreement, you have entered into the Agreement reliant solely upon your own enquiries, skill and judgement and not upon any representations, or warranties by us unless they have been agreed in writing between us.
25.1 Property in and ownership of the Products or services shall remain our property until all money you owe to us (whether under the Agreement or otherwise) has been paid in full.
25.2 Any samples, illustrations, descriptive material or specifications made available by us including without limitation designs and estimates of performance are indicative only unless specifically stated otherwise.
25.3 All samples and documents containing such illustrative or descriptive material shall remain our exclusive property and must not be copied, loaned or transferred by you.
26. Consumer Guarantees Act and Fair Trading Act
Where the Consumer Guarantees Act 1993 and/or the Fair Trading Act 1986 apply nothing in these terms and conditions shall contract out of or limit the application of those Acts.
Where you are "in trade" within the meaning of the Fair Trading Act 1986 or the Consumer Guarantees Act 1993 (as the case may be), we agree to contract out of the Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14 of the Fair Trading Act 1986.
Where you are in trade and we have agreed to contract out of the Consumer Guarantees Act 1993 and relevant provisions of the Fair Trading Act 1986, we acknowledge ands accept that the effectiveness of contracting out of those Acts is subject to compliance with the statutory tests including that it is fair and reasonable that we be bound by those terms.
Where we are supplying goods and services to the you other than for business purposes the provisions of the Consumer Guarantees Act 1993 and the full provisions of the Fair Trading Act 1986 will apply.
27. Information and Privacy Act
For the purpose of completing the work required by us you authorises us to:
collect all information we may require from any third parties and authorise those third parties to release that information to us; and
to hold all information given by you or any third parties to us; and
to use that information, including giving information to any other person to facilitate collection of debts from the Client.
The information will be collected, held and used on the condition that:
it will be held securely at us; and
it will be accessible to any of our employees and agents who need access to it for the efficient running of the work required or our business; and
You may request access to and correction of it at any time.
We will comply with all applicable privacy legislation and codes and any other law relevant to its possession and use of the Client Materials and ensure that all Client Materials in our possession and control are kept secure and protected against misuse, loss or unauthorised access.
You acknowledge that Client Materials may be hosted by a third party, and we are not liable for any privacy breaches, misuse, loss or unauthorised access that occurs as a result of any act or omission of that third party, provided that we have taken all reasonable steps to enforce the obligations of that third party under any contract or other agreement between us and the third party.
Notwithstanding anything else in the Agreement, where there is a loss of any Client Material in our possession and control, our liability is limited to recovery of the most recent available back-up under our control.
28. Delivery & Risk
Notwithstanding that we may retain Intellectual Property Rights and property in the Products, all risk in the Products passes to the Client on Delivery.
We reserve the right to review and amend these Terms and Conditions at any time. Any change will take effect from the date on which we notify you of the change.
If any provision of the Agreement is, or becomes, unenforceable, illegal or invalid for any reason, the Agreement will remain in full force apart from such provision which will be deemed deleted.
The Agreement will be governed by, and construed in accordance with, the laws of New Zealand and the we agree that our arrangements are subject to the exclusive jurisdiction of the courts of New Zealand.
All our rights will remain in full force despite any delay in enforcement. We will not be deemed to have waived any condition unless that waiver is in writing and signed by us. Any waiver will apply only to the particular matter in respect of which it is given.
Neither party will be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of the relevant party, provided that this clause will not excuse a party from any obligation to make payment when due under the Agreement.
We are entitled at any time to assign our rights under the Agreement. The assignee will be entitled to claim full rights of set off or counter claim against you, your charge holders or successors in respect of the Agreement or part of the Agreement which is assigned. You are not entitled to assign its rights under the Agreement without our prior written consent.
We agree that the Agreement constitutes the entire agreement, understanding and arrangement (express and implied) between us in respect of the matters contained in the Agreement, to the exclusion of all other agreements, arrangements, understandings or representations, whether express or implied, and therefore supersedes any prior agreements, arrangements, understandings and representations between the parties in respect of such matters of any nature.
30. Dispute Resolution
We agree that following the failure of both parties to meet a mutual resolution in a dispute that they must initiate a binding mediation with an independent mediator.
Regardless of the place of signing of any agreement, we agree that for purposes of venue, any contract or agreement is entered into in Rotorua, New Zealand, and any dispute will be litigated or arbitrated in Rotorua, New Zealand, unless mutually agreed in writing otherwise.