Terms and Conditions Of Trade
Part 1 General Clauses
- Web 8 shall include Web8, its successors and any person acting on behalf of and with the authority of Web8
- All Services of Web8, whether gratuitous or not, are supplied subject to these Conditions
- ‘Client’ means the person/s requesting Web8 to provide the Services as specified in any invoice, document or order, where there is more than one person requesting the Services is a reference to each person jointly and severally.
- ‘Services’ means all Services (which includes any advice or recommendations, cloud computing and hosting services, product support, email and anti-spam filtering, remote support, etc.) and Goods (including software, applications, data, graphics, images, videos other associated documentation and/or goods) provided by Web8 to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other ).
- ‘Network’ is any telecommunications network Web8 uses to deliver any and all services This includes any network Web8 interconnects to. This also includes any entity that Web8 has entered into an interconnection agreement or arrangement (directly or indirectly) used for the passing of the Client’s generated or Client’s destined communications
- ‘Confidential Information’ is any information of a confidential nature whether oral, written or in electronic form including, but not limited to
- this agreement
- a party’s Intellectual Property, operational information, know-how, trade secrets, financial and commercial affairs, contracts,
- Client information and pricing details.
- ‘Term” is the non-cancellable period of twelve (12) months (from the date of this agreement) in which the Services will be provided to the Client by Web8, unless otherwise terminated or suspended in accordance herewith. On expiry of the Term the Services, will, unless terminated on or before the date of such expiry, automatically renew until terminated pursuant hereto.
- ‘Software’ shall mean the programs and other operating information (including documentation) used by a computer, tablet and/or mobile device. Applications developed for use by end users will be accessible through the Website or cloud-based applications while the business software and user data is stored on servers based at an alternative location for security and back-up purposes.
- ‘Website’ means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
- ‘Prohibited Content’ means any content on a Website that:
- is, or could reasonably be considered to be, in breach of the broadcasting standards or any other applicable law or applicable industry code
- contains, or could reasonably be considered to contain, any misrepresentations or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful
- is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights.
- ‘Fees’ shall mean the Fees payable for the Services as agreed between Web8 and the Client in accordance with clause 5 of this contract and shall be New Zealand dollars ($NZ) unless otherwise specified.
- The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by Web8.
- These terms and conditions may only be amended with the consent of Web8. This consent must be in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Web8
- The Client shall as soon as practicable make available to Web8 all information, documents, software, hardware, and other particulars required by Web8 for the provision of Services.
- Any advice, recommendations, information, assistance or service provided by Web8 in relation to Services provided is given in good faith, is based on information provided to Web8, and Web8’s own knowledge, and experience. Whilst it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services, human error is possible under these circumstances, and Web8 shall make all effort to offer the best solution to the Client.
- The Client acknowledges and accepts that the Fee stated will remain fixed for an initial period of twelve (12) months from the date of this agreement but will then be subject to revision at the discretion of Web8 and the agreement of the Client.
- The Client acknowledges that it is their responsibility to ensure that the specifications provided to Web8 (in writing) for the supply of Services are in sufficient detail to satisfy Web8’s requirements of interpretation and understanding. Web8 shall not accept any liability for the supply of Services contrary to the Client’s intention due to insufficient or inadequate provision of detailed specifications by the Client.
- Agents or representatives of are not authorised to make any representations, statements, conditions or agreements not expressed by the manager of Web8 in writing nor is Web8 bound by any such unauthorised statements.
- Electronic signatures shall be deemed to be accepted by either party.
- These terms and conditions are meant to be read in conjunction with the terms and conditions posted on Web8’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
- The Client agrees to be bound by these terms and conditions for the Initial Term as selected by the Client on the Order or Agreement Form.
- This agreement will be automatically renew (the Renewal Term) at the end of the Initial Term for the same period as the Initial Term unless the Client provides Web8 with notice of termination of the agreement no less than thirty (30) days prior to the end of the Initial Term or the Renewal Term.
- These terms and conditions are meant to be read in conjunction with the terms and conditions posted on Web8’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
Change in Ownership
The Client shall give Web8 not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Web8 as a result of the Client’s failure to comply with this clause.
Fees and Payment
- Fees shall be as indicated on any invoice provided by Web8 to the Client
- All charges invoiced for additional Services are based on Web8 Fee’s at the date of provision of the Services calculated by
- Web8 current hourly rate of $145 per hour
- Web8 quoted Fees which will be valid for the period stated in the quotation or a period of thirty (30) days.
- Web8 reserves the right to vary the Fees
- if a variation to the plan of scheduled Services, or Client specifications is requested (including, but not limited to, additional work required due to hidden or unidentifiable difficulties not evident prior to commencement of the Services, any request to investigate and/or repair any faults or defects outside Web8’s normal business hours)
- as a result of increases beyond Web8’s reasonable control in the cost of materials or labour (e.g. third-party network or Web8’s costs (e.g. third party contractors), etc..
- All Website base fixes and/or additional work to the Client’s Website will be subject to Web8’s current hourly rates. $145 per hour.
- SEO, PPC, and other digital marketing services are as per the rates and packages on the website or indicated by email and confirmed in a binding agreement for service (Contract)
- At Web8’s sole discretion, a non-refundable fifty (50%) deposit will be required, prior to commencement of the Services, unless otherwise agreed in the service agreement.
- Fees will be payable by the Client on the date/s determined by Web8, which may be:
- on provision of the Services
- by way of instalments/progress payments in accordance with an agreed payment schedule
- As Specified on the invoice.
- All page text and images are required within 6 months from receiving the test link. Should this not be achieved Web 8 reserve the right to deem the project completed with final payment due.
- Payment may be made by electronic/on-line banking,
- If any part of an invoice is in dispute then the Client shall notify Web8 in writing within three (3) business days once of receipt of the invoice, the Client may only withhold payment for that part of the invoice that is in dispute and shall pay the balance of the invoice when due.
- Unless otherwise stated the Fees do not include GST.
Provision of the Services
- At times it may be necessary to suspend service. Web8 may at any time suspend the supply of Services for the purposes of maintaining, repairing or upgrading its systems or networks or if continuing the supply of Services places Web8 general operations at risk. Web8 will use best efforts to notify the Client of any such Service suspension however at no time is under any obligation to inform the Client of such action.
- Web8 will not be liable for any loss or damage incurred by the Client as a result of service delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that Web8 is unable to provide the Services as agreed solely due to any action or inaction of the Client (including, but not limited to, where the Client fails to provide any information, specifications or materials as required for the provision of the Services) then Web8 shall be entitled to charge a reasonable fee for re-providing the Services at a later time and date.
- The failure of Web8 to deliver shall not entitle either party to treat this contract as repudiated.
Risk and Limitation of Liability
- The Client agrees that, in view of their nature, the Client’s use of the Services is at their sole risk. Web8 will endeavour to ensure that the Services are of a high quality, neither Web8 (nor any of their agents, contractors, licensees, employees or information providers involved in providing the Services) give any guarantee that the Services will be uninterrupted or free from error. Where necessary for commercial, technical or other reasons a network or service provider connected to the Services may suspend or terminate its connection to the Services.
- The Client agrees that any such suspension or termination referred to above will not constitute a breach of this agreement by Web8 and that the Services are provided on an “as is” basis without guarantee of any kind.
- The Client further agrees that Web8 will not be held liable for any costs, expenses, losses, damages or other liabilities (howsoever arising) which you may incur as a result of a suspension of the Services
- The Client acknowledges and agrees that Web8 shall not be held liable for:
- anything related to the Website, or any other Services provided
- any supplied content breaching any Acts, legislation or regulations,
- any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from illegal hacking
- any loss or damage to the Client’s software or hardware caused by any ‘updates’ provided for that software.
- Web8 will endeavour to restore the Website, files or data (at the Client’s cost), and it is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to Web8 providing the Services. The Client accepts full responsibility for the Client’s software and data and Web8 is not required to advise or remind the Client of appropriate backup procedures.
- Any third-party software is provided at the Client’s own risk and is not in any way warranted by Web8 nor shall Web8 be in any way responsible for the implementation or effects of any “patches”, “updates”, or “fixes” offered by the manufacturer of the software.
- The Client acknowledges that the Internet is separate from the Services and that use of the Internet is at their own risk and subject to any applicable Laws. Web8 has no responsibility for any goods, services, information, software, or other materials which the Client may obtain from a third party when using the Internet.
- In the event the Client requests to change to another website development or website hosting company, such request must be provided in writing and only upon receipt of full payment of monies owed to Web8 shall then release of the website content (including but not limited to logins and passwords) will occur. Web8 accepts no liability should the website not look nor operates correctly post the transfer when the website was operational prior to the change.
Changes to Approved Copy
During the course of various marketing and optimisation services Web 8 may be required to change website content. Copy of the amended content will be provided for approval prior to updating the website. Any time required to make changes to the approved copy after website optimisation has been completed shall be charged at the discretion of Web8, this charge based on Web8’s hourly rate of $145 per hour.
Content and Materials left with Web8
- Any content including images, video and text material supplied to Web8 by the Client shall be at the Client’s risk and if lost, destroyed or damaged the Client will not be entitled to make any claim against Web8.
- Where property and materials are left with Web8 without specific instructions, Web8 shall be free to dispose of at the discretion of Web8
The Client hereby disclaims any right to rescind, or cancel any contract with Web8 or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by Web8 and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgment.
Defects, Errors & Omissions
Any alleged fault, defect, shortage in quantity, errors, omissions or failure to comply with the description or quote of the Services which the Client detects must be reported to Web8 as soon as is practically possible. Any emails or telephone messages which are received outside Web8’s normal business hours will be processed the following business day. The Client shall afford Web8 an opportunity to inspect the Services within a reasonable time following such notification if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage. For defective Services, which Web8 has agreed in writing are defective Web8’s liability is limited to either (at Web8’s discretion) rectifying the Services or re-providing the Services, provided that the Client has agreed to.
Digital Marketing Services
- This includes but is not limited to Search Engine Optimisation, Pay Per Click Advertising, Social Media Advertising and other services.
- Web8 shall use their knowledge and experience to gain the best results possible.
- There is no guarantee to
- the quality of visitor
- the position / page rank
- volume of visits to the Website.
- Number or quality of leads generated
- These are marketing services and the client accepts that results are variable and not guaranteed
- Any Goods not manufactured by Web8, the warranty shall be the current warranty provided by the manufacturer of the Goods. Web8 shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
- Consumer Guarantees Act 1993. If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by Web8 to the Client.
- Both parties agree that, they 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, including terms, conditions and pricing of the services delivered. This clause shall survive termination or cancellation of this agreement.
- The Client will use every endeavor to protect passwords and other details, including but not limited to usernames and passwords.
- If the Client owes Web8 any money the Client shall indemnify Web8 from and against all costs and disbursements incurred by Web8 in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and Web8’s collection agency costs, and bank dishonour fees.
- If the Client is in breach of any obligation (including those relating to payment) Web8 may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Web8 will not be liable to the Client for any loss or damage the Client suffers because Web8 has exercised its rights under this clause.
- If payment is not received within 5 working days of the due date Web8 reserves the right to suspend services. A reactivation fee may be charged at the discretion of Web8
- If the Client cancels delivery of the Goods the Client shall be liable for any loss incurred by Web8 (including, but not limited to, any loss of profits) up to the time of cancellation.
- In the event of the client cancelling the contract any deposit paid will be used to offset any losses and the client is liable for the balance payable.
- Web 8 reserves the right to cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time by giving the client written notice. Ongiving such notice Web8 will repay to the client any fees paid. Web8 shall not be liable for any loss or damage whatsoever arising from such cancellation
Disputes And Remedies
- Both parties agree to use their best efforts to resolve any dispute which may arise under this agreement through good faith negotiations. Including but not limited to Electronic or in person meetings at the senior levels.
- Any dispute which cannot be settled by negotiation between the parties or their respective representatives shall be submitted to mediation before commencing any litigation. Either party may initiate mediation by giving written notice to the other party.
- The parties shall continue to perform their obligations under the agreement as far as possible as if no dispute had arisen pending the final settlement of any matter referred to mediation.
- These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.
- Web8 shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Web8 of these terms and conditions.
- Web8 reserves the right to change these terms and conditions at any time. That change will take effect from the date on which Web8 notifies the Client of such change.
- In the event of any breach of this contract by Web8 the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Fees of the Goods.
- If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- The failure by Web8 to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision,nor shall it affect Web8’s right to subsequently enforce that provision. Included but not limited to any offers of ex-gratia payments or work.
- Web8 may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
- Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
Part 2 WEBSITE HOSTING
Where Web8 hosts websites, Web8 use third party servers and cannot guarantee or support data transfer speed, disk space, document upload speed and transfer, Website uptime and email uptime as this is then all handled by an external source.
Web8 will, at its sole cost and expense:
- Install and host the Client’s content (including Website) on Web8’s recommended approved third party’s webserver
- Ensure that from the go live date
- sufficient capacity is maintained on Web8’s webserver to enable users access to the Website in a timely manner
- the Website is accessible to users in accordance with the agreed service levels (subject to reasonable downtime for server maintenance which has been notified to the Client prior to the commencement of the downtime or Maintenance in accordance
- provide the Client with reasonable access to the Website to perform maintenance services. Including log in and password.
- Use all reasonable efforts to prevent unauthorized access to the website.
- Web8 will make best efforts to ensure that the Client receives continual and interrupted iServices during the term of this agreement. In no event though, shall Web8 be liable to the Client for damages resulting from or in relation to any failure or delay of Web8 to provide Services under this agreement if such delays or failures are due to circumstances beyond our control. Such a failure or delay shall not constitute a default under this agreement.
- Provide the content to Web8, in such form as reasonably prescribed by Web8 from time to time, and hereby grants Web8 a non-exclusive, worldwide, irrevocable licence to use such content for the purposes of hosting the Website
- Do all things reasonably necessary to enable Web8 to host the Website on Web8’s webserver
- Ensure that the content supplied to Web8 do not contain
- Prohibited Content
- a link to any Website that contains Prohibited Content
- any viruses, trojan horses, worms, time bombs or any other software program or routine designed for or capable of interfering with the operation of the Hosting Services.
- Web8 reserves the right to withdraw the Services at any time, subject to fourteen (14) days written notice to the Client. Web8 shall not be liable for any consequential loss or damages incurred by the Client due to termination of the Services.
- Web8 reserves the right to immediately terminate the Services, without notice or liability to Web8 when the Client has participated in
- deployment of adult, hate or gambling websites
- participation in undirected bulk email delivery
- any sites promoting or participating in illegal activities.
- The contract may be terminated upon the expiration of the minimum term by way of the Client serving upon Web8 written notice not less than thirty (30) days and not more than three (3) months prior to the renewal date.
- After the expiration of the initial term, the contract shall continue for an additional period equivalent to the initial contract period.
- Any special offer or discount made in the initial term, that special offer or discount shall only be available for the initial term.
Part 3 Website Development and Design
On confirmation of the agreement Web8 will
- Design and build the website in accordance with the instructions received from the client and contained within the service agreement and scope of work, if applicable.
- If required negotiate and procure third party agreements on behalf of the Client.
- If required acquire the internet domain name on behalf of the client. The client Client agrees to reimburse Web8 all associated costs in obtaining and maintaining a domain name on behalf of the client
- Will carry out the instructions of the client and where said instructions exceed the specified work advise the client of additional costs.
- Work with the client to achieve the design outcomes as specified and advise if any changes are outside the scope of the agreement as soon as possible.
- On confirmation from the client Web 8 will make the site live on our servers.
- For a period of 14 days after the go live date allow the client to 2 revisions for corrections and reasonable alterations. This is included in the original fee doe building the site. At the end of this period the contract is deemed to be completed.
- Proof Reading. Whilst every care is taken by Web8 to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading. Web8 shall be under no liability whatever for any errors not corrected by the Client in the final proof reading.
- On receipt of final payment release the website to the client including unique log ins to the administration panel. This gives full access to the Clients Website to make changes. The client is responsible for any changes made by the client or anyone using their log ins. Web8 have no liability or responsibility for these changes. Which may include but not limited to
- pages, functionally, boxes, text, page layouts
- info/code deletions
- any changes that cause the Website to not function or look as originally designed by Web8.
It is expected that the client works with Web8 as a collaboration
- The Client will, provide the required content including text, images and other media to be used in the website. Some of this may be done by Web8 at their discretion and will be outlined in the agreement
- Provide other information, ideas or suggestions which are to be expressly considered by Web8 in developing the Website
- Ensure all content and data supplied to Web8 is accurate and valid.
- Ensure they have the rights to publish any content provided and indemnify Web8 against any breaches of copywrite.