Terms and Conditions
1. INTRODUCTION & ACCEPTANCE
- These terms apply to services provided in relation to Website Development, Mobile app development custom software/application development, Website support, Digital Marketing (Services) on a project basis that we Tandem NZ Limited, the “Agency” provide to you, the “Client”, anytime, whether now or in the future. If we provide you with Services then 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 services agreement in a timely and efficient manner. The services agreement 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 cost of the service provided may be impacted.
- It is not necessary for any Client to have signed an acceptance of these terms and conditions for them to apply. If a Client accepts a quote then the Client will be deemed to have satisfied themselves as to the terms applying and have accepted these terms and conditions in full. Please read these terms and conditions carefully. Any purchase or use of our services implies that you have read and accepted our terms and conditions.
- We warrant that we will provide all our Services with the care and skill that can be expected from a competent website developer. If we supply you with a Website, we also warrant that for 30 days from the Completion Date (“Warranty Period”) the Website will conform to the scope. If this warranty is breached within the Warranty Period we will bring the Website into conformity with the scope at our cost.
- The warranties referred to 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 scope 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 web content-management platform or framework (for example Umbraco, WordPress, Drupal) used or incorporated in the Website including any open source plugins; or
- We do not warrant that the Website 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 unless specified in the scope of works.
- Also, if we recommend 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, accounting software, inventory management software, point of sale (POS) system, retail management system, customer relationship management (CRM) system, intranet, document management system or file storage system.
- We make every effort to ensure websites are designed to be viewed by the majority of visitors. Websites are designed to work with the most popular current browsers (e.g. Firefox, Edge, Google Chrome, Opera etc.). Client agrees that the Agency cannot guarantee correct functionality with all browser software across different operating systems. We cannot accept responsibility for web pages which do not display acceptably in new versions of browsers released after the website have been designed and handed over to the Client. As such, we reserve the right to quote for any work involved in changing the website design or website code for it to work with updated browser software.
- We cannot accept responsibility for any alterations caused by a third party occurring to the Client’s pages once installed. Such alterations include, but are not limited to additions, modifications or deletions.
3. 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 services agreement in a timely and efficient manner. In particular, you must respond to any request from us 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 keep strictly confidential any password and log-on we give you for access to the administrative functions of the Website.
- For the purpose of carrying out the tasks described in the foregoing, you have given (or will give us) the relevant details and access rights to access your information assets. By giving us the relevant details and access rights to your existing information assets you warrant and undertake that:
- you are the legal owner of your existing information assets and their contents and data, including all Intellectual Property Rights in or relating to the contents and data;
- you have full and unfettered rights to deal with your existing information assets and their contents and data;
- you unequivocally authorise and empower us (including our employees and contractors) to access your existing information assets.
- 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 information assets, unauthorised use, extraction or copying of the contents or data of your existing information assets or for infringement of such third party’s Intellectual Property Rights in or relating to your existing information assets contents or data.
- To remain efficient we must ensure that work we have programmed is carried out at the scheduled time. On occasions, we may have to reject offers for other work and enquiries to ensure that your work is completed at the time arranged. We ask that you provide all the required information in advance. On any occasion where progress cannot be made with your website because we have not been given the required information in the agreed time frame, and we are delayed as result, we reserve the right to impose a surcharge of up to 25%. If you agree to provide us with the required information and subsequently fail to do so we reserve the right to close the project and the balance in full remaining becomes payable immediately.
- Our employees and/or contractors with whom you are, or will be, dealing with are very valuable to us. We have invested considerable time, money and effort in recruiting, training and upskilling them. In consideration of our agreement to provide you with the Services, you agree, covenant and undertake that 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 his or her employment or contractual relationship with us. If you breach your agreement, covenant and undertaking in this clause, then:
- we may immediately terminate the project and any amounts owing by you to us under the projects and these terms must be paid immediately, and we will be regarded as wholly discharged from any further obligations or performance under the projects or these terms; and
- on demand in writing by us, you shall indemnify us and pay us in respect of each of such employees or contractors, as agreed liquidated damages, a sum equivalent to the total remuneration or compensation (including, but not limited to any allowances, bonuses, overtime pay or permitted disbursements), exclusive of any tax or GST, paid by us to such employee or contractor for the last three calendar months immediately prior to the date of the termination of his or her employment or contractual relationship with us. The amount demanded shall be deemed to be a debt due from you to us and you must pay that debt in full, without any deduction or set-off, within 10 days from the date of the demand. If you fail to pay the debt, then, we will be entitled to apply to the court for summary judgment against you in respect of the debt together with all legal costs (on a full indemnity basis) and any disbursements incurred by us in respect of the application. For the purposes of such summary judgment application, this clause shall be evidence of and shall be deemed, an unequivocal admission by you of the debt (including any legal costs and disbursements).
4. PROJECT CHANGES
- The scope of a website or IT project and the priorities associated with the different aspects of the project will often continue to evolve as the project progresses, problems are encountered and refinements are identified (“Project Variations/Change Requests”). 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, an unforeseen circumstance, or an extension or a reduction in the scope of the project. This is a natural and expected occurrence in any website or IT project and is not due to the fault of any particular person. Our team will, therefore, work in a flexible and collaborative manner with you during the course of the project so that you can participate and provide your feedback and make necessary decisions to progress the project. If this happens, it may be necessary to vary the services provided and associated project budget.
5. 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 and any Content Materials, we and our suppliers own all Intellectual Property in the Project (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 the Website or elements (in source and object code) which implement visual features or the layouts of the Website (including, but not limited to, the Content Materials) (collectively, “Tandem’s IP”) except as otherwise outlined.
- Provided you meet your payment obligations for the Consulting, Administration and Implementation Services, 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 sub-licence or consent for you to use such Content Materials in the manner anticipated in the Scope.
- The Project 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.
- In the course of providing the Services to you, we may implement various measurement, tracking and optimisation tools and methodologies to assist us to collect, measure, track, analyse, assess, report on, or optimise, your website (whether created by us or others), any social networking services utilised by you including (without limitation) Facebook, Linkedin and Twitter, and any other online marketing or e-business initiatives that may be in place from time to time. The data generated including (without limitation) the analyses, assessments and reports are our Intellectual Property and our Confidential Information and will be owned by us and/or Tandem IP Limited, but we will not share that data with any third party (other than our parent company or its subsidiaries, or their respective successors in title).
- Where you are providing design or code, the IP that relates to that design or code is solely retained by yourself. We recognise we have no claim over any work not created by us and our employees.
- All Agency services may be used for lawful purposes only. You agree to indemnify and hold the Agency harmless from any claims resulting from your use of our service that damages you or any other party.
- 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 Quote/Scope of works in the 12 month period immediately preceding the event giving rise to liability.
- The limitations and exclusions of liability in this clause shall apply however liability arises, whether in contract, tort (including negligence), breach of statutory duty or otherwise.
- 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 not 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.
- If you are not satisfied with the Services, your sole and exclusive remedy is to terminate the services agreement.
- You do hereby agree to assume personal responsibility to Agency in the event of default of payment or noncompliance by you or the Client. The responsibility of the individual guarantors shall accrue for all obligations due to Agency under this Note and the applicable laws.
- We have the following pricing structures:
- Fixed Price: Where a fixed price is given, the service, package or product will be charged based on a fixed predetermined amount as detailed in the services agreement (“Fixed Price”).
- Time and Materials: Where an Estimated Budget is given in the Scope or has been varied by virtue, 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. You will be charged for all the actual hours of work performed at our hourly rate, any direct expenses incurred, and the cost of any materials and any special equipment that may be required for the project (“Time and Materials”). Payment of the price whether Fixed Price or Time and Materials may be on Due Date Payment Terms or On Account Payment Terms.
- Additional expenses: Client agrees to reimburse the Agency for any additional expenses necessary for the completion of the work. Examples would be the purchase of special fonts, stock photography etc.
8. PAYMENT TERMS
- Due Date Payment Terms: You agree to pay the Charges for: Consulting, Administration and Implementation Services as and when they fall due, time being strictly of the essence; and all Software and Hosting Services monthly in arrears from the Completion Date.
- Unless otherwise specified above, you agree to pay all invoices by the specified due date of the invoice (time being strictly of the essence). 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.
- Accounts that remain unpaid thirty (30) days after the date of the invoice will be assessed a service charge in the amount of the higher of one and one-half percent (1.5%) or $60 per month of the total amount due.
- If you do not pay the Charges on time we may, at our option do any or all of the following:
- terminate the relevant Scope in accordance;
- 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 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.
- Accounts unpaid thirty (30) days after the date of invoice will be considered in default. If the Client in default maintains any information or files on the Agency systems then the Agency will, at its discretion, remove all such material from its web space. The Agency is not responsible for any loss of data incurred due to the removal of the service. Removal of such material does not relieve the Client of the obligation to pay any outstanding charges assessed to the Client’s account. Clients with accounts in default agree to pay the Agency reasonable expenses, including legal fees and costs for collection by third-party agencies, incurred by the Agency in enforcing these Terms and Conditions.
9. ABANDONED PROJECTS
- If your project goes on hold or has stalled (“Stoppage”) because:
- you have failed to fulfil your obligations; or
- you have requested us to stop work on your project; or
- we have been unable, despite 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, since the last of our unsuccessful attempts to contact you or communicate with you, then, you will be treated as having abandoned your project (“Abandoned Project”)
- If a project has been delayed or abandoned due to your not fulfilling your obligations such as, but not limited to, communication or payment terms, then restarting the project will be at our discretion.
- Each party will keep all information about the services agreement, the Services, the Website and other information that is confidential to the other party (”Confidential Information”) confidential and will not disclose this information to a third party without the consent of the other party. Each party shall ensure that its employees, subcontractors, professional advisors and agents abide by these obligations of confidentiality.
- Unless we agree otherwise in writing, we will each use any Confidential Information belonging to the other party only for the purposes of fulfilling our obligations to each other under the services agreement and as permitted in these terms.
- You may choose to terminate the services agreement before the completion of your project. When you confirm the cancellation of the services agreement (whether online or by signing a hardcopy version or otherwise), you commit to purchasing and paying us for the body of work described in the scope that has been completed.
- 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 Tandem NZ and/or any of our approved suppliers; and
- list you on our marketing materials, including on our website; and
- from time to time, we may send you emails with articles and information about our organisation and products and services that we think may be of interest to you
13. THIRD PARTY SERVICES & PRODUCTS
- On occasion, we may recommend you to purchase products and services from Third Party Providers. Where we do so, we may receive commissions from the Third Party Providers for recommending their products or services to you.
14. VARIATION TO 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.
- In the event any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired and the Agreement shall not be void for this reason alone. Such invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the parties underlying the invalid.
- These terms and any contract to which they apply (including, but not limited to, the services agreement) shall be governed by the laws of New Zealand and are subject to the exclusive jurisdiction of the Courts of New Zealand.