Terms and Conditions
The contract between DEVITISE and the client shall consist of the quotation with its specifications and these terms and conditions. It may not be necessary to have a signature for the contract to commence, verbal communication, email communication or other exchange making it clear that the work specified is required to be carried out shall constitute commencement of the contract and a contractual Agreement between the client and DEVITISE shall exist based on the quotation with its specifications and these terms and conditions. DEVITISE cannot always guarantee to start work immediately on a commission but will arrange a date with the client as to when work can commence. An anticipated finishing date will be agreed and DEVITISE will do its best to adhere to that but cannot guarantee to do so in the light of circumstances outside its control. Where in the instance that a time scale has been agreed, DEVITISE will not be responsible for any consequential losses to the client if the deadline is not met.
SUPPLY OF CONTENT BY CLIENT
The client undertakes to inform us prior to commencement of the project if there is content to be supplied by the client. If, during the development, if the client does not supply the content required in order to complete the commission within the anticipated time frame, DEVITISE will invoice up to the full amount quoted. When the content is supplied there may be additional time costs involved due to the overrun of the project, which impinges on the ability of DEVITISE to service other clients.
Copyright All material, both text and images, supplied by the client and used in the construction of the client’s project, will remain the client’s property. All such material will be assumed to be the property of the client and free to use without fear of breach of copyright laws. The client shall indemnify DEVITISE against all and any claims arising from the use of materials of any sort provided by the client or obtained under the direction of the client from third parties such as graphic designers.
The copyright for all material provided by DEVITISE, such as HTML code, graphics, photographs and text, will remain the property of DEVITISE until such time as payment has been made in full. They will then become the property of the client with copyright shared between the client and DEVITISE this allows either party expeditiously to pursue any copyright infringement. Should the client wish to retain exclusive copyright this shall be arranged but the copyright of DEVITISE shall only be assigned if done so expressly and in writing to the client. Background programming, databases, CGI or Java Scripts produced by DEVITISE remain the intellectual property of DEVITISE unless otherwise expressly agreed in writing. Copyright of any background programming, databases, CGI or Java Scripts remain the property of DEVITISE for the duration of the website’s existence and shall not be assigned, modified or reused without the express written permission of DEVITISE. No portion of the coding can be copied, duplicated or redistributed in any form electronic or otherwise unless a licensing agreement has been reached.
TESTIMONIAL, REFERENCE AND LINKS
DEVITISE retains the right to display graphics and other Web design elements as examples of their work in their respective portfolios. DEVITISE retain the right to refer other prospective clients to your website as testimonial or reference material. Search Engine Submission and Results DEVITISE will submit a client’s website to the major search engines. Further work based on keyword key word trend analysis, search engine optimization based specifically around your organisation and its ‘competition’ is best carried out by specialist contractors.
Payment terms are strictly 30 days unless otherwise agreed. Whilst any payment due under the Agreement remains outstanding, DEVITISE shall be entitled at its sole and absolute discretion to withhold provision of any goods or services it would otherwise be obliged to provide under the Agreement. DEVITISE expects payment by electronic bank transfer or cash within 30 days of the date on the invoice. Payment is to be made in New Zealand dollars. Late payments are subject to a 10% monthly finance charge.
Where DEVITISE undertakes to maintain or update a client’s website a system of communication will be established that meets the needs of both the client and of DEVITISE to carry out the maintenance to a service level agreed. Payment for maintenance is usually by monthly fees paid in advance and is reviewed and renewable annually. Where the client cancels a maintenance contract with less than one-month’ notice, there will be a charge of two months’ fees. Where DEVITISE cancels a maintenance contract other than for a reason set out in Cancellation and Termination below, a refund of the fees appropriate to that part of the month remaining will be made. In instances where the client does not come to a web site management agreement it is the sole responsibility of the client to manage the site. DEVITISE will no longer be responsible for the site upon completion unless an alternative agreement has been reached. If errors are reported after more than thirty days, the time and costs involved in making such changes will be charged to the client.
DOMAIN NAME RESEARCH AND REGISTRATION
Where the client requests DEVITISE research and register a domain name the domain name will always be the property and in the control of the client. If, for whatever reason, this is not possible then the client will be informed of the fact. All fees and costs incurred will be payable by the client.
WEBSITE HOSTING SERVICES
Hosting services – where your website is stored on a server for delivery to website visitors – and email services are provided under a contract between the client and the chosen hosting and email provider (Internet Service Provider (ISP)) and will be bound by the terms and conditions of that ISP. DEVITISE makes no commission on such recommendations or services and in recommending an ISP does so in good faith and cannot under any circumstances be held responsible or liable for any shortcomings or losses incurred as part of that contract.
Where the operation of the website or other services provided by DEVITISE involves the collection and administration of personal data the client is deemed to be the Data Controller and as such is responsible for notification under the terms of the Data Protection Acts and related regulations. DEVITISE can arrange the required notification and the current fee for Notification and time and other costs will be payable by the client. The client shall indemnify DEVITISE against any actions, costs and liabilities arising from the use in good faith by DEVITISE of personal data provided by the client or through the client’s website / promotional material.
Where Project involves e-commerce functionality, the client must ensure that suitable arrangements are in place to maximize security levels with regard to financial and personal information relating to the users of the website and other services. This may necessitate the use of secure electronic protocols, authentication certificates, encryption et cetera and may require the provision of secure server facilities and/or the use of a credit card clearing service. Where a service is provided relating to e-commerce whereby visitors to the client’s website can order goods or services through the website – whether through direct or indirect payment the client undertakes to ensure that all transactions are carried out legally and fairly, that the security of personal information and of financial information is maintained and that the collection and control of that data meets the requirements of the Data Protection Acts and regulations.
The client is solely responsible for complying with any laws, taxes, and tariffs applicable in any way to the website or any other services contemplated, and will hold harmless, protect, and defend DEVITISE and its sub-contractors from any claim, suit, penalty, tax, fine, or tariff arising from the website or other services provided. Sub-Contracting If necessary DEVITISE reserves the right, and the client hereby agrees, to allow the use of sub-contractors or agents to work on any aspect of the design or website.
If for any reason whatsoever DEVITISE is unable to provide an agreed product or service in accordance with these terms and conditions our liability shall be limited in its entirety to a proportional refund of any fees paid by you for the service or product. The entire risk as to the quality and performance of the website or other services is with the client. In no event will DEVITISE be liable to the client or any third party for any damages, including, but not limited to, service interruptions caused by acts of god, the hosting service or any other circumstances beyond the control of DEVITISE, any lost profits, lost savings or other incidental, consequential, punitive, or special damages arising out of the operation of or inability to operate the website or other services, failure of any service provider, of any telecommunications carrier, of the Internet backbone, of any Internet servers, your or your site visitors’ computer or Internet software, even if DEVITISE has been advised of the possibility of such damages. Quotations and Tenders are valid for thirty days from the date on the tender or quotation. All prices quoted may be subject to change after this period.
ADVICE AND CONSULTANCY
Any advice given in respect of software, hardware, programming, design, purchasing, hosting, training, upgrading, installing or any other advice, suggestion, recommendation or otherwise of any product or service provided by us or by a third party, whether introduced by us directly or indirectly is accepted by you as an opinion and as such you agree that prior to acting on any of the aforementioned that you will first obtain professional advice. You further agree to indemnify us of all liability with regard to any decision or action performed by you that may or may not be a direct or indirect result of any contact or dealing with us. Our consultancy service and general advice is, by its nature, subjective. It is up to you whether you decide to follow our ideas and suggestions. It is not possible and we do not guarantee that any of those ideas and suggestions will increase traffic to your site, improve your ratings with search engines or boost sales.
Endeavour to provide appropriate training as agreed and on terms agreed. The outcomes of training personnel in whatever activities agreed are not readily quantifiable and as such we cannot accept liability for any training we provide not meeting the client’s or the trainee’s expectations.
Right to Assign This Agreement is personal to you and you may not assign it without our prior express written consent. Should you transfer ownership of the website as part of a transfer of ownership of a business then the new owners will need to come to a new Agreement with DEVITISE. Communication DEVITISE’s preferred method of communication is by email and messaging apps such as WhatsApp and Viber. Invoices and quotes will be sent by email and shall form a legal document just as in accordance with the Electronics Transactions Act 2002.
CANCELLATION AND TERMINATION
DEVITISE may, by written notice, terminate the Agreement immediately if any of the following events are to occur:
– You fail to pay the invoice.
– You commit a breach of the terms of the Agreement.
Should DEVITISE decide to terminate the Agreement between immediately upon the occurrence of one of the above circumstances, we reserve the right to exercise any other rights, which we may have against you. We reserve the right to remove from the Internet any website or other service which we display on your behalf.
Should we terminate the Agreement upon the occurrence of one of the above circumstances, we will not refund to you any monies paid by you to us. If at any point during the development a client wishes to cancel, they may do so but will be invoiced up to the full amount quoted based on the degree to which the work has been completed and on the extent to which time has been allocated to the project that cannot be effectively used to generate revenue that would be otherwise lost.
If a maintenance agreement is terminated for any of the reasons mentioned above a fee equivalent to three months’ charges will be payable. In the event that DEVITISE terminates a maintenance contract for any other reason, a refund equivalent to the unused portion of the current payment period will be the maximum liability.
WAIVER AND INTERPRETATION
Should DEVITISE waive any of these terms on an individual basis, this shall not affect the validity of remaining clauses or commit DEVITISE to waive the same clause on any other occasion. These terms and conditions shall prevail over all terms and conditions of your customary practice or any previous course of dealings. Any variation to these terms and conditions shall be inapplicable unless agreed between ourselves before we commence any work on your behalf. Work, services or products are only supplied in strict accordance with these terms and conditions.
The provision of work, services or products by us is only undertaken on the understanding that you have read and accept these terms and conditions in full. By agreeing to these terms and conditions your statutory rights are not affected. This contract shall be subject to New Zealand Law. In the event that DEVITISE is not entitled to rely on a term or terms in this contract, then DEVITISE may also be allowed to cancel all rights and obligations under this contract, or to hold all other clauses as valid entirely at their sole discretion. No terms or conditions endorsed upon, delivered with or contained in the client’s purchase order, confirmation of order, specification or other document will form part of the contract simply as a result of such document being referred to in the contract. The client must ensure that the terms of its order and any applicable specification are complete and accurate.
In connection with the Client Order, each party may receive or have access to commercially or personally valuable technical and non-technical confidential or proprietary information (“Confidential Information”) of the other party. Confidential Information includes all information, whether oral or written, relating to the business of a party that is not generally known or available to others, including, without limitation, source code and documentation for software, trade secrets, customer lists, pricing strategies, marketing and business plans, information concerning a party’s vendors, and a party’s contemplated plans, strategies and prospects. Each party acknowledges and agrees that any Confidential Information received or obtained from the other party will be the sole and exclusive property of the other party and may not be used, disseminated or disclosed except as may be necessary to perform the obligations required under this Agreement or as may be required by law.
Notice Any notice, approval, request, authorization, direction or other communication in connection with this Agreement and the Client must be made to DEVITISE. Relationship of the Parties The relationship of the parties in connection with this Agreement and the Client Order is that of an independent contractor relationship, and no partnership, joint venture or employee/employer relationship is intended.
Neither party shall be deemed in default of this Agreement or the Client Order to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, or any other cause beyond the reasonable control of such party; provided, that the party whose performance is affected by any such event gives the other party written notice thereof within ten (10) business days of such event or occurrence.
Miscellaneous (a) In the event that any provision of this Agreement or the Client conflicts with the law under which this Agreement is to be construed, or if any such provision is held invalid by a court with jurisdiction over the parties to this Agreement, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement shall remain in full force and effect. (b) This Agreement may be modified by DEVITISE at any time by publication through its website or by sending each Client an email to the address listed on the Client Order, except that such changes shall not effect Client Orders that have already been accepted. (c) This Agreement and the Client Order may be executed in counterparts, each of which shall be deemed an original and both of which when taken together shall be deemed to constitute the same instrument