WebSight Architects Ltd agrees to supply Goods and Services to the Buyer upon acceptance of the following terms and conditions.
1.1 The following words shall have the meanings specified.
Buyer – the company, person, business or entity named as the Buyer on the Order Form, or any agent of the Buyer.
Contract – the agreement between Web Sight Architects Ltd (WAL) and the Buyer as set out on the Order Form (including these terms and conditions). This Contract overrides any other agreement between WAL and the Buyer, and applies to all orders made after these conditions have been sent, or otherwise brought to the notice of the Buyer.
Goods – print, graphics, design, web programming, software or multimedia in hard copy and electronic form, compact discs, preliminary, experimental and creative work, and all other instructions, manuals, documentation or other materials supplied to the Buyer or any third party at the request of the Buyer.
WAL – Web Sight Architects Ltd.
Order Form – WAL’s application or Order Form, or if there is no such form, WAL’s invoice.
Services – printing, website development, software development, multimedia, social media marketing and management, consulting and design services or other services supplied to the Buyer or any third party at the request of the Buyer.
2.1 Every quotation or estimate given by WAL; (a) Must be checked by the Buyer to determine whether its instruction have been correctly interpreted and WAL shall not be liable for any misinterpretation of those instructions; (b) Lapses if not accepted by the Buyer within 30 days of being given; (c) is subject to withdrawal or amendment at any time by WAL prior to its acceptance by the Buyer; (d) Relates to the particular specifications required by the Buyer and the Buyer will be charged for any additional work resulting from any alteration in those specifications; (e) Is conditional on an over under supply margin of 10%.
2.2 Quotations or estimates are based on printed, typewritten, common electronic format (PDF) or other good copy. The Buyer will be charged for any additional work required to produce copy in this condition.
3.1 Any experimental work ordered by the buyer will be considered an order and charged for by WAL.
3.2 Unless otherwise specified in writing, typesetting, colour separations, artwork and other intermediary material specifically required to complete an order will constitute an additional charge.
3.3 Concepts, designs, scamps, mockups, documents and recommendations submitted by WAL to the Buyer on a speculative basis shall remain the property of WAL. Unless otherwise agreed by WAL in writing, the Buyer shall not make any use of those materials or any idea obtained by those materials.
3.4 Unless otherwise specified in this Contract or by WAL in writing, all intellectual property in the Goods or Services (other than generic reusable components) vests in the Buyer upon full payment of the purchase price for those Goods or Services. Until that time all intellectual property in the Goods and Services remains with WAL.
4.1 WAL will provide proofs of Goods and Services for the Buyer’s approval, if requested. The Buyer is deemed to have accepted the final format of Goods and Services supplied by WAL once the Buyer has approved the proof, including digital format or online proofing (if any) provided by WAL. The Buyer will be charged for any author’s corrections after the first proof.
4.2 The Buyer agrees that a print production may not match a colour proof due to variances in substrates and proof preparation methods but WAL will use reasonable endeavours in this regard. Colour matching for web development is not achievable due to individual monitor colour calibrations.
5. Supply by the Buyer
5.1 The Buyer agrees that any film, plates, discs, tapes or other media devices supplied by it to WAL must be of a quality and quantity acceptable to WAL. WAL will not be liable for any deviation from a quotation or substandard work resulting from the Buyer’s provision of unacceptable items. The Buyer will be charged for any additional work required to supply commercially acceptable Goods or Services.
5.2 Unless otherwise specified in writing, where the Buyer is separately invoiced for the cost of any platemaking positive or negative film, plates, blocks, origination etc., such materials will become the property of the Buyer on payment of that invoice.
5.3 All items supplied by the Buyer to WAL shall: (a) Subject to clause 5.4 remain the property of the Buyer; (b) be sufficient to cover any spoilage (as agreed with WAL); (c) Be held at the risk of the Buyer and WAL will not be responsible for any insurance cover for such items.
5.4 WAL will be entitled to dispose of any items which are not collected by the Buyer within 12 months of delivery of the relevant Goods or the supply of the relevant Services. WAL may offset any proceeds arising from the disposal against the storage and will not be liable to the Buyer for any loss relating to such disposal.
6. Electronic Storage
6.1 Subject to clause 3.4 or unless otherwise specified by WAL in writing the Buyer shall have no right or title to any material stored by WAL by electronic means, including on disc, tape or other media device. WAL may agree, however, to duplicate or transfer electronic material stored by it to the Buyer at the Buyer’s cost.
6.2 Unless otherwise specified by the Buyer in writing, WAL shall be entitled to assume that all discs, tapes, and other forms of electronic storage supplied to WAL by the Buyer are copies of the originals.
7.1 Every amount invoiced shall be paid in cleared funds to WAL, without any set off or deduction. In addition to invoicing the Buyer on completion, WAL may submit invoices for progress payments for any work carried out during periods of more than one month.
7.2 Payment schedules and agreements for website development and mulitimedia development will be paid 50% upfront and the final 50% due on practical completion of design and development to a stage where website is transferred to client for content input. Payment schedules and agreements for social media marketing and management and Google advertising and management are to be paid upfront before work commences as outlined in the Social Media Marketing Agreement.
7.3 GST, and any other taxes or levies and interest are not included in the contract price and are payable by the buyer to WAL in addition to the contract price.
7.4 Payment for website and touchscreen packages and maintenance plans shall be made in accordance with clause 7.2 unless the buyer opts for the Easy Pay Finance Plan contract.
8. Action on Breach
8.1 If the Buyer breaches its Contract with WAL, then WAL may without notice and without prejudice to other rights it may have at law or under this Contract, take all or any of the following steps: (a) Retain moneys paid and demand payment of all amounts due to WAL even if time of payment has not fallen; (b) Require security for such obligations before further supplies are made to the Buyer, including requiring the Buyer to procure the personal guarantees of its directors and shareholders; (c) Withhold deliveries of Goods or supply of Services ordered by the Buyer, or sell the Goods to a third party; (d) Charge interest for late payment on the amount invoiced at 2% per month calculated on a daily basis from the date the payment is due until full payment is actually made, compounding annually; (e) Require the Buyer to pay all expenses and legal costs incurred or suffered by WAL in collection of the overdue amount (the charging of this sum does not imply the granting of an extension of credit); (f) Terminate this contract.
9.1 The Buyer is liable for all freight and delivery costs, and transit insurances.
9.2 If the Buyer does not, or indicates that it will not, take delivery of the Goods or the supply of the Services, then the Goods and Services are deemed to have been delivered when WAL was willing to deliver them. All excess handling, storage, insurance and other charges directly or indirectly incurred by WAL as a result are payable by the Buyer in accordance with this contract.
10. Risk and Insurance
10.1 Risk in the Goods passes from WAL to the Buyer when the Goods are delivered, or deemed to have been delivered, to the Buyer or its agent pursuant to this Contract. Until property in the Goods passes to the Buyer, the Buyer shall keep the goods insured in the name of WAL and the Buyer for their respective rights and interest, and WAL shall be entitled to receive all insurance proceeds which are payable in respect of the Goods.
11.1 Despite the granting of credit, passing of risk, giving of possession, or delivery to the Buyer, both legal and equitable title in the Goods shall be retained by WAL until the full purchase price of any Goods or Services has been paid. The Buyer may sell the Goods in the ordinary course of business under normal and reasonable commercial terms before property passes to it, however, such authority may be revoked by written notice by WAL at any time. The Buyer is to account to WAL for the proceeds of any sale.
11.2 Where title has not passed from WAL to the Buyer: (a) And the Goods are not incorporated into any structure or other goods or on-sold by the Buyer, the Buyer will hold the Goods as WAL’s fiduciary agent and bailee, and must keep the Goods separate from other goods. Such Goods are to be properly stored, protected and insured so that it is clear that they are owned by WAL; (b) But the Buyer has on-sold the Goods or incorporated them into any structure or other goods before payment is made to WAL, the Buyer shall retain the proceeds of sale in a separate account and will hold those funds on trust for WAL until payment is made to WAL of all accounts owed.
12. Right to Repossess and Enter Premises
12.1 Where the Buyer owes WAL any money, the Buyer grants to WAL’s employees or agents an irrevocable right to enter any premises controlled by the Buyer or where the Goods are located and repossess the Goods. WAL may resell any repossessed Goods and retain the prcoeeds of that sale. Any shortfall in the overdue moneys is to be a debt owed by the Buyer to WAL.
12.2 WAL shall incur no liability as a result of any loss resulting from the exercise of any power of re-entry. The Buyer shall indemnify WAL, its servants and agents, for any liablity arising as a result of the repossession, and the Buyer shall pay all costs incurred by WAL.
13. Warranty from WAL
13.1 For a term of 90 days from the date of delivery or deemed delivery of the Goods or Services (Warranty Period) WAL Warrants that it will make good any defects in the Goods if the defect is discovered and a written claim received by WAL during the Warranty Period. To the extent that the Contractual Remedies Act 1979 applies to this contract, sections 6-10 inclusive of the Contractual Remedies Act 1979 are expressly excluded.
13.2 The warranty in clause 13.1 shall not apply in the following circumstances: (a) While the Buyer is in breach of the Contract; (b) Where WAL is not given reasonable opportunity and facilities to investigate the claim (WAL may, at the Buyers cost, require the Buyer to return the relevant Goods to it for examination or, where the Goods have been incorporated into another item, inspect the Goods on site); (c) Where the defects result from fair wear and tear, accident or improper use, storage, maintenance, installation or operation by the Buyer or the Buyer’s agent, of the Goods or any other items in relation to which any Services have been supplied; (d) Where the defects result from any attempt to repair any of the Goods by persons not authorised by WAL to effect those repairs.
13.3 Subject to clause 13.1 to the maximum extent permitted by law, all warranties, descriptions, representations or conditions as to fitness, suitability for a purpose, merchantability or otherwise, whether expressed or implied by law, trade custom or otherwise are expressly excluded.
14. Consumer Guarantees Act/Fair Trading Act
14.1 The Buyer confirms that it is not a consumer for the purposes of the Consumer Guarantees Act 1993 and is acquiring the Goods and Services for Business purposes. The Buyer shall not do anything, or omit to do anything, the result of which may give rise to liability for WAL under the Consumer Guarantees Act 1993, the Fair Trading Act 1986 or otherwise, and shall indemnify WAL for any such liability and all costs and expenses in respect to any claim.
15.1 Without limiting the generality of any other clause in this Contract, WAL may, without notice and without prejudice to other rights WAL may have at law or under this Contract, terminate this Contract if the Buyer: (a) Becomes, threatens or resolves to become, or is in jeopardy of becoming, subject to any form of insolvency administration; (b) Being a partnership, is dissolved, threatens or resolves to dissolve, or is in jeopardy of dissolving; (c) Being a natural person, dies, ceases, or threatens to cease, to conduct its business in the normal manner.
15.2 Upon termination of this Contract, clause 8.1 applies.
16. Privacy Act 1993
16.1 The Buyer authorises WAL to collect at any time and from any person or body personal information concerning the Buyer (Personal Information). Personal Information will be collected by WAL for processing the Buyer’s application for a credit account and operating that account, including, without limitation, determining the creditworthiness of the Buyer, conducting WAL’s business, responding to any requests WAL may receive about the Buyer’s creditworthiness, and notifying any credit agency to maintain its accounting records.
16.2 The Buyer acknowledges and agrees that the Personal Information may be held or used by WAL, or disclosed by WAL to any person or body, for any of the above purposes. Under the Privacy Act 1993, the Buyer may have access to, and request the correction of Personal Information.
17.1 The Buyer acknowledges that WAL’s performance of this agreement requires it to make judgements which may be affected by factors, which cannot be precisely assessed, and that it must make value judgements relying on information which the Buyer and other organisations supply to it. Therefore, it is agreed that neither WAL nor any of its agents or personnel will be liable (whether in tort (including negligence), contract, equity or otherwise) for any loss or damage whatsoever to the Buyer or any other person, arising from WAL’s provision of services and materials, other than as a direct result of any gross negligence, bad faith or wilful default by WAL or any of its agents or personnel, in which case WAL’s liability shall be limited (subject as set out below) to the direct and foreseeable consequences of such negligence, bad faith or wilful default and shall not extend to any indirect or consequential losses, or loss of profits or anticipated savings.
17.2 In addition, WAL will not be liable in contract, tort (including negligence), equity or otherwise, for any loss or damage whatsoever relating to any failure of equipment, software or systems to be “year 2000 compliant.” For the purposes of this clause, “year 2000 compliant” means able to use, process, recognise, communicate, compare, sequence and calculate accurately any date data (including leap years) from, during, into and between (both forwards and backwards) the 20th and 21st centuries.
17.3 WAL’s total aggregate liability in respect of all claims, whether in contract, tort (including negligence), equity or otherwise, under or in respect of this agreement and/or the services or materials supplied by WAL, shall not exceed the amount of the charges payable under this agreement for the three most recent months, prior to the event giving rise to such liability, during which services were provided.
17.4 The Buyer acknowledges that if the use of third party software is required, that WAL is not liable for any issues or problems arising from the use of, or updates of the third party software. Any subsequent work arising from such issues will be charged at a standard hourly rate of $140 per hour.
18. Warranty from Buyer
18.1 The Buyer warrants that: (a) It has not relied upon any representation made by WAL which is not expressly stated in this Contract or upon any descriptions, illustrations or specifications contained in any document, including publicity material, produced by WAL; (b) In manufacturing or dealing with any Goods or supplying any Services according to the specifications of the Buyer WAL shall not infringe any patent, registration or unregistered trade mark, design, copyright or other intellectual property rights (IP Rights) of any third party; (c) WAL will not be required to print any material which is defamatory or illegal in any respect.
19.1 The Buyer agrees to indemnify, and keep indemnified, WAL against any action, claim, demand, liability, damages, costs (including legal costs) or expenses arising out of or in connection with: (a) Any alleged infringement of any IP Rights of any third party, or any alleged production of illegal or defamatory material, resulting from WAL manufacturing or dealing with any Goods, or supplying any Services according to the specifications of the Buyer; (b) Any claims by the Buyer’s customers, agents, servants or contractors or any other person whatsoever in respect of any damage, injury or loss; (c) Any breach by the Buyer of its obligations under this Contract; (d) Any wilful, unlawful or negligent act or omission by the Buyer; (e) Loss or corruption of data or damage (whether of WAL or any third party) caused by any computer virus supplied (knowingly or unknowingly) by or on behalf of the Buyer.
20.1 Both the Buyer and WAL agree that, unless with the prior written consent of the other or unless required by law, each party will not use or disclose to any third party (other than for the purpose of performing this agreement) any information confidential to the other party. The provisions of this clause shall survive termination or expiry of this agreement and is only on agreement with the Buyer the date the information is to be disclosed for the above purposes.
20.2 WAL may disclose in confidence to other clients/potential clients, details of the work performed under this agreement in order to demonstrate WAL’s technical experience in this field of work.
20.2 This disclosure will include only such details as WAL reasonably considers necessary for this purpose and will not include any confidential client data.
21. Solicitation of Staff
21.1 Without the prior written permission of the other, neither the Buyer or WAL shall solicit for employment (directly or indirectly), engage or contract any party who is employed or contracted by the other party or who has been so employed or contracted within the past three months.
22. Intellectual Property Rights
22.1 Title to, copyright and ownership in all software, documentation and other materials prepared for in connection with the performance of this assignment will pass to the Buyer upon payment, pursuant to the terms of this Contract.
22.2 Upon completion of the work and termination of the Contract, the Buyer shall retain the intellectual property rights to all software, documentation and materials developed in the performance of this assignment.
22.3 The Buyer acknowledges that any use of third party software WAL requires to provide Goods remains the intellectual property of the third party.
23.1 The Buyer and WAL shall use their best endeavours to resolve any dispute arising out of or in connection with this agreement between themselves. Failing such resolution, they will try to settle the dispute by mediation.
23.2 Either party may initiate mediation (in terms of the LEADR New Zealand Incorporated standard mediation agreement) by giving written notice to the other party. If the parties cannot agree on a mediator within seven days after such initiation, then the mediator shall be appointed by the then President of the New Zealand Law Society.
23.3 If the dispute is not resolved within 20 days after the mediator is appointed, then the parties shall (unless otherwise agreed in writing) refer the dispute to arbitration under the Arbitration Act 1996 (excluding clauses 4 and 5 of the Second Schedule).
23.4 The parties shall continue to perform their obligations under this agreement as if no dispute had arisen pending settlement of any such dispute.
24. Website Usage Rates
24.1 The Buyer acknowledges that if their website data usage should exceed the allocated megabyte limit as agreed to in the Hosting Plan, a $12.50 per 25mb charge will apply.
25.1 WAL will not be responsible for any loss or corruption of data stored in, or used with, the goods, damage or loss (including consequential loss) caused by any computer virus however contracted, or damage, loss of data or errors occurred when files are converted.
25.2 Any dispute or difference between WAL and the Buyer regarding this Contract or its termination which cannot be settled amicably and in good faith shall, at the instance of either party, be referred for mediation to an accredited mediator appointed by the chairman for the time being of the New Zealand branch of LEADR (Lawyers Engaged in Alternative Dispute Resolution). Each party agrees to diligently and in good faith co-operate and participate in the mediation process. The cost of the mediator shall be shared equally between WAL and the Buyer or as the mediator sees fit.
25.3 Failure or delay to exercise a right under this Contract shall not operate as a waiver of that right. Waiver of any default or breach of this Contract shall not be interpreted as a waiver of any subsequent breach. No Waiver by WAL is effective unless it is in writing signed by WAL.
25.4 No variation to the Contract shall be valid unless signed by an authorised officer of WAL.
25.5 The Buyer may not assign this Contract without WAL’s prior written consent.
25.6 This Contract is governed by New Zealand law. The parties submit to the exclusive jurisdiction of the Courts of New Zealand.
25.7 WAL shall not be liable for any errors or omissions resulting from a misinterpretation of any verbal instructions given by the Buyer at any time.