We may provide you with one or more Services, including:
– Website development & Hosting Solutions;
– Project Work & Consultancy
– Software Solutions
– Additional Services.
In addition to any terms and conditions specified in the relevant Terms of Reference, the Services are subject to the further terms and conditions as set out below. Where there is any conflict between the terms and conditions in the relevant Terms of Reference and these terms of service, these terms shall prevail to the extent of the inconsistency unless we have expressly stated in the Terms of Reference that the Terms of Reference is to prevail.
3.1 Software, Website & Hosting Solutions
We will provide the Software, Website & Hosting Solutions you have selected in the Terms of Reference and you will be billed the Subscription Fee applicable for the provision of those Services.
We will use all reasonable endeavours to:
provide the Website development, software and hosting solutions with skill, care and substantially in accordance with any specifications for those Services as set out in the Terms of Reference;
ensure the Website development, software and hosting solutions are available for your use from any agreed commencement date. You acknowledge that we may need to wait for certain Services to be provisioned by our Carriers and other suppliers so we will not be liable to you for any delay in the commencement of the Services to the extent that delay is caused by you or any third party (including any Carrier or other supplier).
provide you with consistent and reliable Website development, software and hosting Solutions. We use professional data centres and hosting facilities but we are dependent on services provided by our suppliers (including, but not limited to, our Carriers) and do not warrant there will be no faults or interruptions to our Website development, software and hosting solutions. When access to the Website development, software and hosting solutions is disrupted or there is a fault, we will use our reasonable endeavours to reinstate the Website development, software and hosting solutions as soon as possible after we are made aware of such interruption of fault.
We will deliver the Website development, software and hosting solutions to you in whatever way we deem to be most appropriate. We can at our sole discretion (and at any time) choose to change Carriers or any other suppliers.
We reserve the right to remove or change any Website development, software and hosting solutions we may have offered from time to time and either replace them with new Services or move you on to the most similar or suitable Website development, software and hosting solution then on offer to our clients. If we do remove or change a Website development, software and hosting solution that affects you, we will give you as much notice as is practically possible but, in any case, not less than 30 days’ notice.
3.2 Project Work
We shall agree with you upon a Terms of Reference detailing the proposed Project Work.
You agree to make information and resources available to us in a timely manner so that we can also fulfil our obligations to you under the Terms of Reference and complete the Project Work in a timely and efficient manner.
We will use our reasonable endeavours to deliver the Project Work to you substantially in accordance with the Terms of Reference.
The Terms of Reference is based upon information that you provide to us. Therefore, you must make sure that you fully brief us on all matters. If you do not, the Charges for the Project Work may change (see clause 3(ii)(f) below).
When the Terms of Reference is agreed and accepted by you (which you may do in any written form, including by signifying your acceptance by signature, by e-mail or via any online link, checkbox, or other method we make available for this purpose), it shall be deemed to be a complete statement of all of your requirements as at the date of acceptance. If your requirements should change following the acceptance of the Terms of Reference, we will then follow the process outlined in clause 3(ii)(f) below.
The scope of Project Work and the priorities associated with the different aspects of the Project Work will often continue to evolve as the project progresses, challenges are encountered and improvements are identified (“Project Variations”). This occurs due to a number of factors including (but not limited to) a refinement in your or our understanding of your expectations, a change in your objectives, unforeseen circumstances, or an extension or a reduction in the scope of the Project Work. This is a natural and expected occurrence in any project and is seldom due to the fault of any particular person. We will therefore work in a flexible and collaborative manner with you during the course of the Project Work so that you can participate and provide your feedback at appropriate stages and make necessary decisions to progress the Project Work, including making any desired Project Variations. If this happens, it may be necessary to vary the Terms of Reference or where we are undertaking Project Work on a Time & Materials basis, the Estimated Budget.
Testing and bug fixing are an integral and vital part of any Website or software development or implementation process. It is not cost-effective to develop software without any bugs whatsoever, and it is not possible to detect and fix every possible bug as part of a testing and bug fixing process. Where we are undertaking Project Work on a Time & Materials basis, we recommend reserving 20% of the Estimated Budget for initial testing and bug fixing. However, that amount may not always be adequate for a number of reasons including, for example, if, there have been Project Variations, as described in clause 3(ii)(f) above. In that case, the Estimated Budget may need to be varied accordingly to ensure adequate resources are allocated for initial bug fixing. Bugs may also continue to surface from time to time following completion of the Project Work. In all cases you will need to pay to fix these bugs if you deem it to be cost-effective and necessary to do so.
3. 3 Third Party Providers products and services
On occasion, subject always to clause 4(v)-(vii) (inclusive) below, we may recommend you to purchase products and services from Third Party Providers. Where we do so, we may, on occasion, receive a fee from the relevant Third Party Provider.
Products and services provided by Third Party Providers may be subject to the terms and conditions of those Third Party Providers. You are responsible for reading and complying with such terms and conditions.
Subject always to paragraphs (iii) and (iv) of this clause, we warrant that we will provide all our Services with the care and skill that can be expected from a competent provider of the Services.
Subject always to paragraphs (iii) and (iv) below, if we supply you with a Website, we also warrant that for 30 days from the Completion Date (“Website Warranty Period”) the Website will conform to the Terms of Reference. If this warranty is breached within the Website Warranty Period we will bring the Website into conformity with the Terms of Reference at our cost.
The warranties referred to in paragraphs (i) and (ii) above shall not apply:
to any deviation attributable to, or caused directly or indirectly by, your negligence, misuse, or any alteration and/or modification made by you and/or any third party to the Website that we have not permitted in writing; or
to the inability or failure of the Website to perform or function in conformity with the Terms of Reference where such inability or failure is attributable to, or caused directly or indirectly by, your negligence, misuse, or any alteration and/or modification made by you and/or any third party to the Website that we have not permitted in writing; or
to any open source platform, framework, or library (for example WordPress, Drupal, Magento etc) used or incorporated in the Website including any open source plugins; or
if you move the hosting of the Website from us to another hosting provider during the Website Warranty Period or at any time after the Completion Date (as applicable).
We do not warrant that any Website or Customisation will:
be completely free of defect or error (commonly referred to as ‘bugs’); or
be completely secure; or
work on all devices, screen resolutions, internet browsers and operating systems.
Except as expressly stated in these terms, all conditions and warranties, express or implied, are excluded to the maximum allowed by law.
Where we have recommended that you use a Third Party Provider’s products or services in conjunction with the Services, you agree that we will have no liability (however arising) in respect of such products or services or the provision of such products and services to you. For the avoidance of doubt, this includes (for example) the use of any automatic credit card transaction process facility or payment gateway, website system or plugin or add-on, content management system or plugin or add-on, ecommerce system or plugin or add-on, accounting system or plugin or add-on, inventory management software or add-on or plugin, point of sale (POS) system or plugin or add-on, retail management system or add-on or plugin, customer relationship management (CRM) system or plugin or add-on, intranet system or plugin or add-on, document management system or plugin or add-on, or file storage system or plugin or add-on or marketing system or plugin or add-on.
It is also your responsibility to observe and comply with all relevant legislation and regulations including, but not limited to, any applicable taxation regulations and accounting principles when using any of our Services or a Third Party Provider’s products or services. In particular, and by way of examples only, when using any Third Party Provider’s accounting software, inventory management software, point of sale (POS) system, or retail management system, it is your responsibility to seek the appropriate accounting, taxation, business or financial advice from your own accountant, business or financial adviser (as the case may be). It is also your sole responsibility to determine the suitability or fitness for any particular purpose of any of our Services or any Third Party Provider’s products or services. We do not provide any accounting, taxation or financial advice, and any recommendation by us to use any of our Services or any Third Party Provider’s products or services should not be construed as the provision of accounting, tax or financial advice by us.
You agree that to the extent that the Services are purchased by you for the purpose of your business or undertaking, the provisions of the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the Fair Trading Act 1986 do not apply.
5. Your Responsibilities
It is your responsibility to:
promptly provide, all the information, assistance and approvals that we may reasonably require so that we can operate our business efficiently and profitably and fulfil our obligations to you under the Terms of Reference in a timely and efficient manner. In particular, you must respond to any request from us to:
provide any information or any additional information; or
provide your feedback on matters specified in our request; or
provide your approval to proceed to the next immediately following stage of any project; and
in each case, within the time frame stipulated in the request or, if no time frame is specified, within seven (7) days (time being of the essence); and
provide the training, instructions and direction as may be necessary to ensure Dedicated Staff can perform the lawful tasks and duties you allocate to them; and
promptly provide any further direction, information or feedback requested by Dedicated Staff; and
maintain backup data necessary to replace any of your data that is lost, damaged or corrupted from any cause; and
obtain, and if required pay for, any consents and licenses required for you or us to incorporate third party materials in the Website; and
follow any instructions provided by us in respect of the Website and/or the Services and ensure that your employees, agents and contractors who use the Website and the Services also meet your responsibilities under these terms when using the Website and/or the Services; and
use the Services at all times strictly in accordance with our Acceptable Use Policy as amended by us from time to time. Our current Acceptable Use Policy can be viewed at http://www.whitfieldconsulting.co.nz/aup; and
keep strictly confidential any password and log-on we give you for access to Our Portal, the administration functions of the Website or any of our other systems, or a Third Party Provider’s products or services.
You confirm that all data, images, video, presentations, files, documents, animations, software and other information or content you supply to us or place on your Website (“Your Materials”):
are complete and accurate and not likely to mislead or deceive or cause damage to the reputation of any person or company; and
will not cause us, in the course of providing the Services or otherwise fulfilling our obligations under the Terms of Reference, to infringe upon any person’s Intellectual Property including, but not limited to, any copyright or patent, registered design, or trademark and you agree to indemnify us against any action taken by a third party against us in respect of any such infringement; and
are not offensive, harmful, upsetting, unlawful, or otherwise objectionable. For the avoidance of doubt, this includes complying with the Film, Videos and Publications Classification Act 1993, the Harmful Digital Communications Act 2015 and any other similar legislation that you may be subject to.
In order to reduce fraud and to protect sensitive credit card information, you agree that you will not store customer credit card details and will only process credit card transactions using systems or providers that are PCI DSS compliant (visit http://www.pcisecuritystandards.org for more information) and that are authorised by us or your banking institution.
This clause applies where you have requested and require us to access and/or extract some or all of the content and/or data from your existing information assets including, but not limited to, your existing website, Google account, Microsoft account, YouTube account, Facebook account, LinkedIn account, Apple account, or any other database or account (“Existing Accounts”) and to incorporate such content and/or data into any new Website, online account, marketing campaign or database that we are building, redesigning or setting up for you. For the purpose of enabling us to carry out the foregoing tasks, you have given (or will give us) the relevant details and access rights to access your Existing Accounts. By giving us the relevant details and access rights to your Existing Accounts you warrant and undertake that:
you are the legal owner of your Existing Accounts and their contents and data, including all Intellectual Property Rights in or relating to the contents and data therein;
you have full and unfettered rights to deal with your Existing Accounts and their contents and data;
you unequivocally authorise and empower us (including our employees and contractors) to access your Existing Accounts:
to use, transfer and/or upload, in accordance with your instructions, all or part of the contents and/or data of your Existing Accounts to your website, online account or database that we are building, redesigning or setting up for you;
to use, extract and/or copy, in accordance with your instructions, all or part of the contents or data of your Existing Accounts including, without limitation, your product and service information, your company overview, your customer database, your customer orders, and your analytics and performance metrics; and
you will indemnify us against any claims, demands, proceedings (including all legal costs arising therefrom on a full indemnity basis) that may be made against us by any third party for alleged unauthorised access to your Existing Accounts, unauthorised use, extraction or copying of the contents or data of your Existing Accounts or for infringement of such third party’s Intellectual Property Rights in or relating to your Existing Accounts, their contents or data.
Our employees and/or contractors with whom you are, or will be, dealing with are critical to our business. We have invested considerable time, money and effort in recruiting and training them and they have access to Confidential Information and Intellectual Property as part of fulfilling their role in our business. In consideration of our agreement to provide you the Services, you agree, covenant and undertake that during the term of the Terms of Reference and for a period of 12 months following the termination of a Terms of Reference (for whatever reason):
you will not, whether directly or indirectly and in any capacity whatsoever, induce, or attempt to induce any of our employees or contractors to terminate their employment or contractual relationship with us, and
other than as permitted in clause 5(vi), you will not engage or employ, either directly or indirectly any person who is employed or contracted by us in relation to the supply of the Services; and
you will advise us if a person who is employed or contracted by us seeks to be employed or contracted by you; and
you agree that the restraints imposed as part of this clause are reasonable and go no further than is reasonably necessary to protect our legitimate business interests, including in relation to Confidential Information and Intellectual Property.
In the event that you wish to directly engage (whether as an employee, independent contractor or otherwise) any Dedicated Staff who have worked for you at any time during the previous twelve-months, we may permit you to do so (in our sole and absolute discretion):
Subject to the relevant Dedicated Staff providing their informed consent to such an arrangement; and
on your payment to us of a break fee equivalent to three (3) months of the Charges payable for the relevant Dedicated Staff whom you wish to engage directly or as otherwise agreed between us.
6 Intellectual Property
We need to be able to use our code (including, but not limited to, any Customisation code), website interfaces, layouts and templates for more than one client. Therefore, except for any Intellectual Property in Your Materials, any Content Materials and any IP Produced by Dedicated Staff whilst providing the Dedicated Staff Solutions to you, we and our suppliers own:
all Intellectual Property in the Website (including, but not limited to, any code, the user and administration interfaces, measurement, administration and tracking tools); and
all new Intellectual Property (if any) developed or created by us, our agents, employees and contractors in connection with the Services including, but not limited to, elements (in source and object code) which form part of the generic functionality of any Website or marketing campaign or elements (in source and object code) which implement visual features or the layouts of the Website or marketing campaign (including, but not limited to, the Content Materials) (collectively, “Our IP”).
Provided you meet your payment obligations for the Project Work you are granted a personal, non-exclusive, non-transferable license to use Our IP for the term of and in the manner anticipated in the Terms of Reference. We warrant that we have the right to grant you a licence to use the Services in the manner anticipated in the Terms of Reference. However, unless we have expressly agreed otherwise in writing, no license is given for you to use Our IP to develop any products or software that will be sold by you or anyone else.
Provided you meet your payment obligations for the Services:
subject to clause 6(v) below, you are granted all Intellectual Property rights (including copyright) in the Content Materials provided as part of the Content Services except where the Content Materials are owned by third parties and licensed to us in which case we will endeavour to obtain the necessary sublicence or consent for you to use such Content Materials in the manner anticipated in the Terms of Reference.
you are granted all Intellectual Property rights (including copyright) in any IP created by Dedicated Staff in the course of them providing the Dedicated Staff Solutions to you.
The Website or Customisation (if any) may include open source computer software or components from open source software that is made available under a licence that complies with the Open Source Definition: http://opensource.org/osd (“Open Source Software”). We provide the Open Source Software to you on the terms set out in the licence for the relevant Open Source Software.
We expressly disclaim any warranty or other assurance to you regarding the Open Source Software.
To the maximum extent permitted by law, we will not be liable to you, or any third party, in any way whatsoever for any:
loss, damage to or corruption of information or data from any cause; or
breach of security except to the extent attributable to our gross negligence; or
loss of profits or revenue; or
incidental, indirect, special or consequential loss or damage; or
change (adverse or otherwise whatsoever) to your Website or web page rankings as a result of certain actions taken by a search engine as further explained in paragraph (ii) below.
Search Engine Optimisation (“SEO”) is a process of applying various techniques to improve the ranking (or visibility) of a website or web page in a search engine’s unpaid, organic results. Different search engines use different formulas for ranking a website or a web page and, from time to time, a search engine may change the formulas it uses for that purpose. We have no control whatsoever over the search engine or the changes a search engine may make to its formulas. When a search engine changes its formulas for ranking websites or web pages, your rankings with that particular search engine may be positively or negatively impacted. You acknowledge and agree that where you have purchased SEO services from us or from a Third Party Provider (whether or not recommended by us) we will not be held responsible for any changes (adverse or otherwise whatsoever) in your rankings as a result of changes made by a search engine to its formulas for ranking a website or a webpage.
You and we each agree that it is beneficial for any issues, disputes or Claims that may arise between us to be raised and dealt with promptly. It is therefore agreed that:
a party with a Claim against the other (“Claimant”) will provide written notice of that Claim to the other party as soon as reasonably practicable upon becoming aware of the Claim and in any event:
a Claim relating to defective Services must be notified no later than 90 days (time being of the essence) after the delivery of those Services; and
any other Claim must be notified no later than 90 days (time being of the essence) after date on which the Claimant became aware or ought reasonably to have been aware of the Claim, whichever is the earlier.
a party shall have no liability to the other in respect of a Claim not notified by the Claimant in accordance with clause 7(iii)(a); and
in any event, no arbitration, legal proceedings or other action, regardless of form, arising out of a Claim may be brought by either party more than 12 months after the date of the act or omission giving rise to the Claim (or, if more than one, the last of such acts or omissions).
In any event, our maximum aggregate liability to you arising out of any claim for loss and/or damages (for any cause whatsoever) will under no circumstances exceed an amount equal to the total Charges paid by you under the relevant Terms of Reference in the six (6) month period immediately preceding the event giving rise to liability.
The limitations and exclusions of liability in this clause 7 shall apply however liability arises, whether in contract, tort (including negligence), breach of statutory duty or otherwise.
Sometimes we will not be able to fulfil our responsibilities for whatever reason. If such a situation should arise, then clauses 7(i), 7(iii), 7(iv) and 7(v) will apply.
You agree that we should not be exposed to your business and operational risks and so you:
agree that we will not be liable for the results you achieve (or fail to achieve) from your use of the Services, including any loss of profits, costs or damages related to products or services that you sell or are unable to sell; and
to indemnify us against any claims, damages, liabilities, costs and expenses whatsoever and howsoever arising out of the conduct of your business, including your use of the Services and the Website.
If you are not satisfied with the Services, you may notify us in writing accordingly within 90 days of delivery of the Services (time being of the essence). If you so notify us and we agree the Services do not meet the requirements of the relevant Terms of Reference or any applicable warranties in clause 4, we may at our election and within a reasonable time:
re-perform or re-deliver the relevant Services or engage a Third-Party Provider to do so; or
provide replacement Services that in our reasonable opinion deliver an equivalent function or outcome for you; or
refund the Charges for the relevant defective Services; and
if we do not agree the Services are defective, either party may thereafter (but subject to the time limitations in clause 7(iii)) refer the matter to the dispute resolution process in clause 14; and
subject to any other rights at law that cannot be excluded and your rights in clauses 11 and clause 14, this clause is your sole and exclusive remedy in relation to the Services.
You acknowledge that our Carriers and other Third Party Providers do not by virtue of these terms have any contractual relationship with you and are not directly providing you with any Services.
To the maximum extent permitted by law, all liability of our Carriers and other Third Party Providers in connection with the supply of services to us that we use to supply the Services to you is excluded and you agree not to bring any claim against them, their related companies (as that term is defined in the Companies Act 1993) or personnel arising out of or in connection with any Services.
8. Pricing Structures and Payment Terms
We have the following pricing structures:
Fixed Price: Where a fixed price is given, the Services will be charged based as a fixed predetermined amount as detailed in the Terms of Reference (“Fixed Price”).
Time & Materials: Where an Estimated Budget is given in the Terms of Reference or has been varied by virtue of clause 3(ii)(f), the Estimated Budget (whether original or as varied) is just an estimate and is dependent on the resources utilised and the time expended by us in delivering the Services to you. You will be charged for all the actual hours of work performed at the hourly rates specified in the Terms of Reference or otherwise at our usual hourly rates, any direct expenses incurred, and the cost of any materials and any special equipment that may be required for the project (“Time & Materials”).
Success Fees: Where success fees are payable, the Terms of Reference will detail the success fee or the method for calculation of such fee and when the success fees apply (“Success Fees”). Unless otherwise specified in the Terms of Reference, any Success Fees will be calculated on the GST or VAT exclusive value of sales made and transactions processed through your Website and be payable monthly in arrears.
Payment of the Charges whether Fixed Price, Time & Materials or Success Fees may be on Due Date Payment Terms or On Account Payment Terms.
Due Date Payment Terms: You agree to pay the Charges for the Services as and when they fall due, time being strictly of the essence.
On Account Payment Terms: If we have agreed that you may pay the Charges for Services on a monthly basis over a period of time, we will invoice you for the Charges each month for a period not less than the Minimum Term specified in the Terms of Reference.
You acknowledge and agree:
that such payment arrangement is to assist you with your cashflow, financial forecasting and budgeting by smoothing out your payments over a period of time and is not necessarily tied to when work is performed. Due to this, the timing of work against payments will vary, month by month, depending on your needs and requirements, prerequisites associated with delivering different Services to you, and the availability of the relevant human resources. The work performed will sometimes occur in arrears and sometimes in advance of when payments occur;
that each month during the Minimum Term you will pay the monthly payment specified in the Terms of Reference (time being strictly of the essence);
that if you default on any payment due under the payment arrangement (time being strictly of the essence), then, all monthly payments corresponding to the remainder of the Minimum Term shall become immediately due and payable;
that if you terminate the Terms of Reference prior to the expiry of the Minimum Term, then, all monthly payments corresponding to the remainder of the Minimum Term shall become immediately due and payable.
Rebate Purchase Arrangements
This clause applies only where you, or you and any other companies related to or associated with you, have purchased a certain volume of Services under a Terms of Reference and we determine that such purchase may generate economic or logistical savings or advantages for the both of us by reason of the efficiencies arising from, or relating to, undertaking an assured volume of work from you, or, where applicable, you and any other companies related to or associated with you. In recognition of those benefits and your contribution as such, we may, in our sole discretion, elect to enter into a rebate purchase arrangement with you whereby you pay a Special Price or a Special Hourly Rate for some or all of the Services that you have agreed to purchase under that Terms of Reference (“Rebate Purchase Arrangement”). When we enter into such a Rebate Purchase Arrangement it is on the strict understanding and condition that the Rebate Purchase Arrangement applies only to the Services purchased under that Terms of Reference and no other, and that we will be entitled to cancel the Rebate Purchase Arrangement immediately if:
for any reason whatsoever, you or any company related or associated with you, reduce (by volume or by dollar amount) your or their purchase of the Services under that or any other Terms of Reference for any reason whatsoever including, without limitation, cancellation of a Terms of Reference; or
you fail to pay promptly on the due date (time being of the essence) any Charges payable under that or any other Terms of Reference; or
that or any other Terms of Reference between us and you or any company related or associated with you is terminated in accordance with clause 11.
If we cancel the Rebate Purchase Arrangement in accordance with clause 8(iii)(a), then:
you will not be entitled to have the benefit of the Special Price or the Special Rate;
you agree to compensate us (without any deduction or set-off) for:
an amount equal to the total Rebate received by you for the Services which have been rendered up to the date of cancellation of the Rebate Purchase Arrangement;
direct and reasonable costs incurred by us to mitigate our losses as a result of your failure to fulfil your commitment to purchase a specific agreed quantity of our Services; and
any other direct and reasonable losses (including, but not limited to, overheads and loss of revenue) incurred by us and arising from planning, procuring, allocating and reserving our time and resources for the purpose of providing the Services;
any further Services provided by us after the date of cancellation will be charged to you at our standard list price or our standard hourly rate (as the case may be);
if applicable, we may exercise our rights under clause 8(vi).
All Charges are expressed in the currency specified in the Terms of Reference and payment must be made in that currency unless expressly stated otherwise in the Terms of Reference. All Charges are exclusive of all taxes and duties, such as GST or VAT, and such taxes and duties (if any) shall be paid in the same currency specified in the Terms of Reference.
Unless otherwise specified, you agree to pay all invoices within 7 days of the invoice date (time being strictly of the essence) utilising the payment option(s) we provide in your jurisdiction. You shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to you by us nor to withhold payment of any invoice because part of that invoice is in dispute.
If you do not pay the Charges on time we may, at our option do any or all of the following:
suspend or restrict your use of the Services;
terminate the relevant Terms of Reference in accordance with clause 11;
refer your account to our debt collection agency;
charge you all collection costs incurred by us, and you agree to indemnify us from and against all costs and disbursements incurred by us in recovering the unpaid Charges (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, our collection agency costs, and bank dishonour fees);
charge you default interest from the date when payment became due, until the actual date of payment of all amounts owing (including default interest), at a rate of two percent (2%) per calendar month (which shall at our sole discretion compound monthly at such a rate) after as well as before any judgment;
set-off any amounts due from you against any moneys due from us or held in our account to your credit.
and, for the avoidance of doubt, if we have agreed to allow you to pay the Charges by instalments and you defaulted on the payment of an instalment when due, time being strictly of the essence, then, the whole of the Charges then outstanding and remaining unpaid shall become immediately due and payable, without any demand or other formalities of any kind on our part, and we may exercise any and all of our rights as set out in (a) to (f), inclusive, above.
If the provision of Services to you is put on hold or has stalled (“Stoppage”) because:
you have failed to fulfil your obligations under clause 5(i)(a) despite our request for you to do so; or
you have requested us to cease providing the Services or stop work on your project; or
we have been unable, despite at least three (3) repeated attempts, to contact you or communicate with you at your last known email address or phone number; and
in each case, the Stoppage continues for more than three (3) consecutive months from the date we or you (as applicable) made the relevant request or, in case of (c) above, since the last of our unsuccessful attempts to contact you or communicate with you, then, you will be treated as having abandoned the relevant Terms of Reference for those Services (“Abandoned Project”) and clause 8(viii) shall apply.
In the case of an Abandoned Project or an Early Termination (see clause 11(v)(a)) the following shall apply:
in addition to any amounts that you may already owe us, you will pay, without set-off or deduction and on receipt of our invoice, the Early Termination Charges as a genuine agreed pre-estimate of the costs and losses sustained by us as result of the Abandoned Project;
we shall be entitled to set-off and deduct any of such invoiced amount from any moneys that may be due from us to you or held in your account to your credit as may be sufficient to pay the invoiced amount in whole or in part, including (but not limited to) any deposit, advance payment, pre-billed time, prepaid time or time invoiced in advance whether as part of a payment plan, Rebate Purchase Arrangement or otherwise; and
you will not be entitled to a refund of any of the monies already paid by you towards the relevant Services; and
subject to clause 11(viii), but without derogating from any of the foregoing provisions above, we will be wholly discharged from any further obligations or performance under the Terms of Reference or these terms for the Abandoned Project.
The Early Termination Charges specified above are payable because:
when you authorise us to proceed with a Terms of Reference, you commit to purchasing and paying us for the Services described in that Terms of Reference; and
as a result of that commitment by you, and acting in good faith and in reliance of that commitment, we have then scheduled and planned the implementation of those Services and mobilised and committed our time and resources to the delivery of the Services to you to the exclusion of other client projects; and
when you abandon the Terms of Reference as specified above, the consequences for us and our staff are significant as the body of work that we had scheduled to undertake and complete is now not being undertaken anymore; and
even if we may have only delivered a small portion of the Services specified in the Terms of Reference to you at the time that you abandon your project, our costs are disproportionately incurred, in that a disproportionately large part of the costs of the delivery of any Services are incurred in the early stages of the project, including (but are not limited to);
upfront costs incurred before the Terms of Reference was finalised in scoping your requirements, research and analysis of your needs, potential project challenges, and appropriate solutions and recommendations; and
costs for planning the delivery and implementation of your project and scheduling and mobilising the appropriate human resources; and
actual costs of providing the Services; and
the agreed Charges for your Terms of Reference is designed to cover (without limitation) all of the above costs; and
The Abandoned Project will not only cause us to sustain loss in respect of the costs described in paragraph (4) above, but also further costs and losses including (but not limited to) costs and disbursements incurred by us for unsuccessfully following up with you, repeatedly, regarding our request(s), costs for rescheduling the delivery of Services to you to later date(s), costs and losses associated with idle or under-utilised human resources and equipment that we may not be able to redeploy, costs associated with severance payments, loss (including revenue loss) arising from the commitment of our time and resources to your project to the exclusion of work for other clients, costs associated with sourcing and scheduling replacement work to mitigate our losses arising from your Abandoned Project, and costs and expenses associated with finalising the Abandoned Project such as clerical, accounting, legal and other similar costs.
If you have pre-paid for any Services (“Prepaid Time”), you must redeem the Prepaid Time no later than twelve (12) months from the date of purchase (“Expiry Date”). Any time redeemed will be deducted from the current balance standing to your credit. On the Expiry Date any unredeemed time will no longer be redeemable and any moneys paid in respect of the unredeemed Prepaid Time will forfeited and will not be refundable.
If you have more than one project with us and one project (Project A) has a funding surplus or Prepaid Time and any other project of yours (Project B, C, D etc) has a funding shortfall, you agree, and you hereby authorise us to use and apply any of the surplus funds or the Prepaid Time held by us in respect of Project A to carry out the necessary works to complete any other project of yours (Project B, C, D etc), to the intent that the funds paid by you for Project A and any other project of yours shall be treated as if they have been paid for a combined project. You agree that any rights of set-off that you may have against any of the surplus funds or Prepaid Time held by us in respect of Project A are hereby waived irrevocably and you shall not be entitled to be refunded any of the surplus funds or Prepaid Time so applied.
9. Confidential Information
Each party will keep all information about the Terms of Reference, the Services, the Website and other information that is confidential to the other party (”Confidential Information”) confidential and will not use or disclose this information to a third party other than:
with the prior written consent of the other party;
for the purposes of fulfilling our obligations to each other under the Terms of Reference;
as may be otherwise permitted in these terms; and
as required by law and then only to the minimum extent required.
Each party shall ensure that its employees, subcontractors, professional advisors and agents abide by these obligations of confidentiality.
Confidential Information does not include information that is generally known and available without a party having breached its obligations under this clause; or is, or has been, independently and lawfully acquired or developed without the benefit or use of the other party’s Confidential Information.
10. Suspension of Services
We may suspend the provision of the Services to you:
if you do not meet all of your responsibilities under the relevant Terms of Reference or these terms, provided we give you seven days’ prior notice of such suspension and at the end of that seven day period you still have not fulfilled your required responsibilities.
if a Carrier or other Third Party Provider supplying services to us suspends or interrupts its service to us and that suspension or interruption adversely affects our ability to provide the Services to you.
in an emergency, where required by law or whenever we, any Carrier other Third Party Provider, or any other appropriate person considers that it is necessary or reasonable to protect persons, systems or other property.
We may, without any prior notice to you, remove material from or block access to your Website or the Website development, software and hosting Solutions where:
we have received a notice of infringement under section 92C of the Copyright Act 1994 or any similar legislation in any other jurisdiction; or
the removal or denial of access is in compliance with the requirements of the Harmful Digital Communications Act 2015, any similar legislation in any other jurisdiction or is in compliance with any order issued under or pursuant to such legislation.
You agree that we shall have no liability to you in respect of any loss (including loss of profit), cost or damage suffered or incurred by you as a result of such action. If there is a dispute between you and a third party regarding your Website or the contents of your Website, or any other aspect of the Website development, software and hosting Solutions you acknowledge that it is your responsibility to resolve such dispute with the third party and you agree to indemnify us against all claims, proceedings or actions by such third party against us including costs (legal or otherwise) that we may incur in defending such claims, proceedings or actions on a full indemnity basis.
Unless we otherwise agree, the Charges will continue to apply where we have suspended the Services or blocked access to your Website, Customisation or the Website development, software and hosting Solutions or otherwise removed any alleged infringing material pursuant to this clause.
Termination of Website development, software and hosting solutions by you
Subject at all times to any minimum term associated with any Website development, software and hosting Solutions, you may otherwise terminate the Website development, software and hosting Solutions (whether these are included in a Terms of Reference or otherwise), at any time after the expiry of such minimum term, by giving us one (1) month’s written notice of termination.
Termination of Website development, software and hosting solutions by us
We may terminate the Website development, software and hosting solutions (whether these are included in a Terms of Reference or otherwise), at any time, by giving you at least three (3) month’s written notice of termination.
Termination of Dedicated Staff Solutions
In addition to the rights of termination available in the circumstances outlined in clause 3(iii)(g), within the first three (3) months of the commencement of the Dedicated Staff Solutions, either of us may terminate the Dedicated Staff Solutions with one (1) month’s written notice. Following the conclusion of this initial period, either of us may terminate the Dedicated Staff Solutions with three (3) months written notice.
Upon termination by you or by us (as applicable) of the Website development, software and hosting Solutions or Dedicated Staff Solutions pursuant to clause 11(i), 11(ii) or 11(iii):
any amounts owing by you to us for Website development, software and hosting Solutions and/or Dedicated Staff Solutions must be paid immediately; and
subject to clause 11(viii) and without derogating from the foregoing provision in (a) above, we will be regarded as wholly discharged from any further obligations or performance for Website development, software and hosting Solutions and/or Dedicated Staff Solutions (as applicable) with effect from and on the date of termination.
we may continue (in our sole and absolute discretion) to employ, contract, or in any other way engage with the Dedicated Staff including redeploying such Dedicated Staff for the delivery of the Dedicated Staff Solutions to another client.
Early Termination of Project Work for convenience
You may terminate a Terms of Reference for Project Work for convenience at any time before the completion of your project by notice to us in writing (“Early Termination”). If you give notice of Early Termination, the relevant Terms of Reference will be treated as being an Abandoned Project and the Early Termination Fees and the other provisions in clause 8(viii) shall apply.
We may terminate a Terms of Reference for Project Work without cause by notice in writing to you at any time. If we terminate under this clause we will promptly repay to you all of the Charges you have paid to us under that Terms of Reference up to the date of termination for the relevant Project Work (and for the avoidance of doubt excluding any Charges for Services not associated with that Project Work and subject to clause 11(viii):
we shall be wholly discharged from any further obligations under the Terms of Reference or these terms; and
you agree the repayment to you of all the Charges you have paid to us under that Terms of Reference up to the date of termination shall be in full and final settlement of all claims and rights you have in relation to our termination of the Terms of Reference.
Termination by you for breach
You may terminate the Terms of Reference at any time if:
we are placed in voluntary administration, receivership or liquidation; or if
we have breached a term of the Terms of Reference or these terms and failed to remedy such breach after being given written notice by you emailing the details of such breach to email@example.com and allowing at least 30 days for us to remedy the breach; and
upon termination by you pursuant to this clause:
we will immediately cease providing the Services, or, if the Services have already been suspended we will not provide any further Services (as described in the Terms of Reference); and
we will invoice you, and you will immediately pay without set-off or deduction the amount invoiced on receipt of the invoice, for any Charges incurred but not yet invoiced as at the date of termination; and
we shall be entitled to set-off and deduct any invoiced amount from any moneys that may be due from us to you or held in your account to your credit as may be sufficient to pay the invoiced amount in whole or in part, including (but not limited to) any deposit, advance payment, pre-billed time, Prepaid Time or time invoiced in advance whether as part of a payment plan, Rebate Purchase Arrangement or otherwise; and
subject to clause 11(viii), but without derogating from any of the foregoing provisions above, we will be wholly discharged from any further obligations or performance under the Terms of Reference or these terms.
Termination by us for breach
We may terminate the Terms of Reference at any time if:
you are in breach of clauses 5(i)(a), 5(v),and 8(v) (or any of them); or
you, being a natural person, become bankrupt or die; or
you are placed in voluntary administration, receivership, liquidation or are subject to any other analogous form of insolvency administration; or
in our reasonable opinion, you are using the Services for any unlawful, abusive or fraudulent purpose; or
you abuse, harass or threaten (including, but not limited to, threats of abuse or retribution or using any form of cyber-bullying) verbally or in writing any of our employees, contractors, agents, directors or officers (and for the avoidance of doubt, including our Dedicated Staff); or
you commit a material breach of the Terms of Reference or these terms or any other agreement between us, when the breach is not reasonably capable of being remedied; or
you have breached a term of the Terms of Reference or these terms and failed to remedy such breach after being given written notice at your last known email address and allowing at least 30 days for you to remedy the breach; and
upon termination by us pursuant to this clause:
we will immediately cease providing the Services, or, if the Services have already been suspended, we will not provide any further Services; and
in addition to any amounts that you already owe us, you must pay the Early Termination Charges and the other provisions of clause 8(viii) shall apply
Effect of Termination
Termination or cancellation of a Terms of Reference shall not relieve either party from any right, liability, or claim that has accrued on or before the date of termination or cancellation. The provisions of clauses 4(iv), 4(v), 5, 6, 7, 8, 9, 11, 12 and 14 of these terms will survive termination or cancellation of a Terms of Reference.
You agree that we may:
include a reference on the bottom of the homepage (or equivalent) of the Website, crediting the design, development and hosting of the Website to us and/or any of our Third Party Providers; and
list you on our marketing materials, including on our website; and
list you on any relevant directory website unless you advise us otherwise; and
from time to time, we may send you e-mails or other types of communication with articles and information about our organisation and products and services that we think may be of interest to you. You may elect not to receive such communications at any time by following the unsubscribe process included with the communication or by contacting our support team on firstname.lastname@example.org.
13. Variation of Terms
We may amend or replace these terms from time to time. The amended or replacement terms (“Amended Terms”) will then apply to the Services. We will post the Amended Terms on our website and we will communicate these changes to you via email or by notifying you via Our Portal or the administration section of your Website (if any). If you object to the Amended Terms, you must notify us by emailing email@example.com. You will be taken to have accepted the Amended Terms if you make a further request of us to provide Services to you or if you continue to make use of our Services and do not give us any notice to the contrary. If you are in any doubt as to the current terms of trade that apply to the Services please visit our website https://www.whitfieldconsulting.co.nz/tos or contact our support team on firstname.lastname@example.org.
The following principles apply to any dispute or difference arising out of or in connection with these terms, a Terms or Reference or the Services (“dispute”):
each party shall use all reasonable efforts in good faith:
to resolve any dispute; and
subject to the express rights of a party in these terms, to minimise the impact of any dispute.
the dispute shall be confidential between the parties and their respective legal advisors, except as otherwise provided in this clause or to the extent a dispute is required to be disclosed by court order or any enactment or rule of law.
Any dispute shall be raised and resolved in accordance with this clause. No party may commence or maintain any action or proceedings in any court, tribunal or otherwise regarding a dispute without:
First giving a notice of dispute under clause 14(iii); and
complying with and completing the dispute resolution process under this clause, except where that party is seeking urgent interlocutory relief in relation to confidential information or intellectual property.
Notice of dispute
A party must, as soon as reasonably practicable, give the other party notice (“Dispute Notice”) of any dispute. Prior to issuing a Dispute Notice and triggering the formal dispute resolution process in this clause, the parties will consult in good faith for a minimum of seven days to see if they can resolve the matter giving rise to the dispute themselves.
Internal dispute resolution
Following issue of a Dispute Notice, the parties will consult in good faith for a minimum of twenty-one days to see if they can resolve the matter giving rise to the dispute themselves, including at least one meeting (whether in person or via audio-visual means of communication), between the parties’ nominated representatives within fourteen days of issue of the Dispute Notice.
If the parties fail to resolve the dispute in accordance with clause 14(iv) within 21 days of issue of the Dispute Notice, unless the parties agree to a mediation of the dispute (which mediation shall be conducted in accordance with the mediation rules of the New Zealand Dispute Resolution Centre), either party may thereafter (but subject to clause 7(iii)(b) give notice to the other party requiring the dispute to be referred to and finally resolved by arbitration in accordance with the arbitration rules of the New Zealand Dispute Resolution Centre. The parties shall:
Promptly each pay one-half of the preliminary costs of the arbitration as set out in the arbitration rules of the New Zealand Dispute Resolution Centre; and
in consultation with the New Zealand Dispute Resolution Centre, endeavour to agree on the arbitrator to be appointed within ten days of the referral to arbitration but acknowledge that the decision on the appointment of the arbitrator shall ultimately be made by the New Zealand Dispute Resolution Centre. To the extent reasonably possible, the arbitrator should be a professional with significant experience in the resolution of disputes involving information technology contracts.
You agree that the Terms of Reference and these terms comprise the entire agreement between you and us in respect of the Website and the Services and, unless expressly stated in the Terms of Reference, all prior agreements, warranties, representations, written, verbal or otherwise, are excluded and superseded. By accepting the Terms of Reference, you also confirm and acknowledge that you have not been induced to purchase the Website and/or the Services by any representation whether verbal, written or otherwise, made by or on behalf of us which is not expressly set out in the Terms of Reference.
You agree that we are free to offer and provide services, that are the same or similar to the Services provided to you under a Terms of Reference, to other persons and companies.
The failure by us to enforce any provision of these terms shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision. If any provision of these terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
If any of your contact details change, you agree to promptly provide us with your new contact details. We will send you notices and other communications to the last known contact details you have given to us.
You warrant that you have the power to enter into each Terms of Reference forming part of this agreement and have obtained all necessary authorisation to allow you do so, that you are not insolvent and that this agreement creates binding and valid legal obligations on you.
You may not assign any rights or obligations under these terms without our prior written consent. We may assign any rights under these terms without obtaining your prior approval. We may also sub-contract any of our obligations under these terms, but in so doing, will not be relieved of any liability to you under these terms.
We may decline your application for the Services (and/or any request for further Services) at our discretion and we do not have to disclose our credit criteria or the reasons for our decision.
Nothing in these terms shall be construed as creating a relationship in the nature of principal and agent, partnership, joint ventures or employer and employee between:
you and us or any of our personnel; or
you and the Dedicated Staff.
If a court of competent jurisdiction determines that any provision of these terms is illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
These terms and any contract to which they apply (including, but not limited to, the Terms of Reference) shall be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the Courts of New Zealand.
“Agents” means either your or our (as the context dictates) employees, contractors and/or anyone else authorised to act on your or our behalf.
“Abandoned Project” has the meaning given to it in clause 8(vii).
“Acceptable Use Policy” means our current policy on what is and is not an acceptable use of the Services as amended by us from time to time. Our Acceptable use Policy can be found at http://www.whitfieldconsulting.co.nz/aup.
“Additional Services” means any additional services (not being Website development, software and hosting Solutions, Dedicated Staff Solutions, Project Work or Third Party Provider products or services) that we agree to provide to you, and, for the avoidance of doubt, Additional Services include any of the tools associated with Our Portal that are not Software, Telecommunication or Hosting Solutions or Third Party Provider products and services.
“Amended Terms” has the meaning given to it in clause 13.
“Carriers” means any entity with whom we have entered into an agreement or arrangement (directly or indirectly) providing for the passing of customer generated or customer destined internet traffic between us and that entity.
“Charges” means the fees and charges payable by you to us under a Terms of Reference for the Services set out in the Terms of Reference, and shall include any amount payable in respect of any Project Variations.
“Claim” includes any loss, damage or other cause of action arising under or in connection with the Services or a Terms of Reference, whether based on an action or claim in contract, equity, negligence, tort or otherwise.
“Confidential Information” has the meaning given to it in clause 9(i).
“Content Material” means all written copy, illustrations, diagrams, photographs, animations, 3D models, video or other materials provided to you as part of the Content Services but excluding elements (in source and object code) which form part of the generic functionality of the Website or elements (in source and object code) which implement visual features or the layouts of the Website and (including, but not limited to) the Content Materials.
“Content Services” means any copywriting, illustration, photography, video production, or other services to provide Content Material as set out in a Terms of Reference.
“Customisation” means a customisation required by you as described in the Customisation Plan.
“Customisation Plan” means the plan developed by us in conjunction with you for a Customisation.
“Dedicated Staff” means any part-time or full-time personnel made available by us to you.
“Dedicated Staff Charges” means the monthly charges payable by you for the Dedicated Staff Solutions as specified in the relevant Terms of Reference and includes a labour recovery charge, a monthly service fee and reimbursement for any other out-of-pocket expenses incurred by us on your behalf in relation to the provision of the Dedicated Staff Solutions.
“Dedicated Staff Solutions” means the Services relating to the sourcing, resourcing and provision of Dedicated Staff.
“Due Date Payment Terms” means the payment terms described in clause 8(ii)(a).
“Early Termination” has the meaning given to it in clause 11(v).
“Early Termination Charges” means the charges to be paid by you as a genuine agreed pre-estimate of the costs and losses we will likely incur in dealing with either an Early Termination by you (as detailed in clauses 11(v)(a)) or an Abandoned Project (as detailed in clause 8(vii)) or a termination for breach (as detailed in clause 11(vii)) (whichever shall be applicable), and shall include the full purchase price described in the Terms of Reference (less any amounts previously invoiced) including any amount designated for Time & Materials (whether or not the invoiced Time & Materials was provided), and any expenses, disbursements and charges incurred by us up to the date of termination, less our estimated profit margin of 12%. For the avoidance of doubt, the deduction of the 12% estimated profit margin shall not apply to amounts previously invoiced, or amounts owing for work already completed prior to the termination or abandonment (as applicable).
“Estimated Budget” means the estimated budget for any Services to be provided by us to you on a Time & Materials basis.
“Expiry Date” has the meaning given to it in clause 8(ix).
“Fixed Price” has the meaning given to it in clause 8(i)(a)(1).
“Intellectual Property” means all intellectual property as defined in article 2 of the Convention Establishing the World Intellectual Property Organisation of 1967 and, without limitation, includes any discovery, invention, novel or original designs (whether or not registrable as designs or patents), any trade marks or trade names or goodwill rights associated with such marks, applications for any of the foregoing, the copyright in any copyright works including, but not limited to, any software, drawings, plans, specifications, designs, know-how and trade secrets owned or used, secret process or improvement in procedure
“IP by Dedicated Staff” means any Intellectual Property produced or created by Dedicated Staff in the course of providing the Dedicated Staff Solutions to you.
“Minimum Term” means any fixed minimum term as set out in the Terms of Reference which may apply where you are paying the Charges using On Account Payment Terms.
“On Account Payment Terms” means the payment terms described in clause 8(ii)(b).
“Open Source Software” has the meaning given to it in clause 6(iv).
“Order Form” means our order form (in whatever form that may take) signed or completed (as applicable) by you or on your behalf, which specifies the Services you require from us and which shall include any Services ordered or approved by you via Our Portal.
“Our IP” has the meaning given to it in clause 6(i).
“Our Portal” means the web-based interface or application provided by us that may be used by you and our other clients to order Services, access our software tools or other Third Party Provider’s products or services, pay our Charges or otherwise interact with us.
“Prepaid Time” has the meaning given to it in clause 8(ix).
“Project Variations” has the meaning given to it in clause 3(ii)(f).
“Project Work” means website design and development, software and application design and development, chatbot design and development, consulting, administration, implementation and marketing services as more fully described in the relevant Proposal or Order Form and includes consulting, design, computer programming, Content Services, administration, training and marketing services.
“Proposal” means the proposal accepted by you or on your behalf, in respect of the Services, and includes any changes to it which were made at your request.
“Rebate” means the amount to be deducted from our standard list price or standard hourly rate as part of a Rebate Purchase Arrangement.
“Rebate Purchase Arrangement” means the arrangement referred to in clause 8(iii).
“Services” means the Website development, software and hosting Solutions, the Project Work, the Dedicated Staff Solutions, the Additional Services and the Third Party Providers products and services as described in clause 3
“Website development, software and hosting solutions” means the provision of software as a service, broadband, telephone (including voice over IP), mobile phone, domain name, email hosting, SSL certificates, website hosting, chatbots, web application hosting and any other similar software, telecommunication or hosting service offered by us as set out in the Terms of Reference.
“Special Hourly Rate” means the hourly rate payable by you as set out in the Terms of Reference after deducting the Rebate and “Special Rate” has a corresponding meaning.
“Special Price” means the price payable by you as set out in the Terms of Reference after deducting the Rebate.
“Stoppage” has the meaning given to it in clause 8(vii).
“Subscription Fee” means the periodic fee payable by you to us for the Website development, software and hosting Solutions which you may request from time to time.
“Success Fees” has the meaning given to it in clause 8(i)(a)(3).
“Terms of Reference” means:
(a) the Proposal (if any); and
(b) any Estimated Budget; and
(c) the Order Form (if any); and
(e) any Project Variations; and
(f) the specifications for any Website or Customisation which forms part of the Services (if any); and
(g) the Website Plan or Customisation Plan (if any).
“Third Party Provider” means any provider of products or services forming part of the Services other than us.
“Time & Materials” has the meaning given to it in clause 8(i)(a)(2).
“Website Warranty Period” has the meaning given to it in clause 4(ii).
“we” or “us” means Whitfield Consulting Limited and “our” has a corresponding meaning.
“Website” means the website we create for you as part of the Project Work.
“Website Plan” means the website plan prepared by us in conjunction with you in respect of the Website.
“you” means the client under the Terms of Reference and “your” has a corresponding meaning.
“Your Materials” has the meaning given to it in clause 5(ii).63