TERMS AND CONDITIONS
1 Definitions
1.1 In these terms and conditions:
(a) Agreement means the Website Development, the Schedules, appendix and these terms and conditions;
(b) Intellectual Property includes all copyright, trademarks, designs, patents, domain names, concepts, know-how, trade secrets, logos and all other similar property and rights whether registered or unregistered;
(c) Schedule means the schedules to the Website Development Agreement;
(d) Services means the services described in the Schedule and appendix;
(e) Appendix means the specification documents outlining the details of the agreed services to be provided, attached to this contract.
(f) Exceed, Exceed Online, we, our refers to Exceed Online Limited
(g) Customer, client, your refers to your organisation
2 Customer Responsibilities
2.1 Product upload is the responsibility of the customer unless otherwise specified as per appendix. The customer is to link, upload all products and assign all cross sell and up sell items for each product; delays in this process will have an on flow affect and result in a later completion date.
2.2 Upon the design completion, the customer is to forward the signed design sign off form to Exceed
within 3 days of receiving it, to ensure the scheduled completion dates are adhered to.
2.3 Promptly provide, all the information, assistance and approvals that Exceed may reasonably require;
2.4 Provide a domain name for the Website and advise Exceed of that domain name upon go live sign off;
Exceed will provide you with instructions to pint the domain name to the newly created website.
2.5 All email addresses are to be created and managed by your provider.
2.6 Unsolicited email or SPAM is the responsibility of the client through the help of their internet service provider to pro-actively manage their email inbox. Exceed Online does not take responsibility nor offer ongoing support for the prevention of unsolicited email as part of this contractual agreement.
2.7 Ensure information and functionality is correct prior to signing the go live form; please note any alterations/corrections after go live sign off will be at an additional charge to the customer, at our standard hourly rate.
2.8 If a payment gateway is being implemented by Exceed on your website, you are required to set up a merchant number with your bank and forward this merchant number to Exceed one (1) week prior to go live.
2.9 Obtain, and if required pay for, any consents and licenses required by Exceed to incorporate third
party materials in the website; and follow any instructions provided by Exceed in respect of the Website and/or the Services and ensure that your employees, agents and contractors who uses the Website and the Services also meet your responsibilities under this Agreement when using the Website and/or the Services;
2.10 Keep strictly confidential any password and logon Exceed give you for access to the administration functions of the Website.
2.11 The customer to confirm that all data, images, software and other information they supply to Exceed 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;
- do not infringe the rights of any person (including intellectual property rights); 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.
3 Term
3.1 The term of the Agreement will commence on the date of signing by both parties and continue until terminated under clause 16. Exceed will, subject to clause 2, develop or modify the Website in accordance to the signed scope agreement.
4 Development /modification of Website
4.1 Following execution of the Agreement by both parties, Exceed will together with the Customer, prepare the specification for the Website in accordance with the Schedule and appendix. The customer will cooperate and give up a minimum of two hours during business hours for the completion of the specification.
4.2 Exceed shall be entitled to provide the website development / modification services from its premises and will not be required to attend the Customer’s premises.
4.3 Subject to the Customer complying with clause 2 and not unreasonably withholding approval, Exceed will ensure compliance with the description of website work in the Schedule and appendix or Exceed will refund 100% of the fees specified in the Schedule, provided that prior to any refund being made Exceed will have 30 days to remedy the website to comply with the description of the website work in the Schedule and appendix.
4.4 The Customer authorises Exceed to obtain access to the Customer’s computing facilities using the remote means of access and subject to any restrictions on access set out in the Schedule and appendix, for the purposes of providing the Customer with Services.
4.5 Exceed will not use the means of access (or any other methods of remote access) to access the facilities for any purpose other than to provide the Services. However, Exceed shall be permitted to gain remote access to the facilities for lawful purposes using any publicly available means (such as the World Wide Web), which do not require authorisation.
4.6 Exceed Online will, to its best ability build a website which will match the signed off design, however, minor variations in look and feel may exist between the signed off design and the final website due to HTML inconsistencies and low standard of browser continuity.
4.7 Exceed will take the following steps to ensure the security of the facilities (insofar as the use of systems and the means and access are concerned):
(a) ensuring that no passwords are stored in easily recognisable form on Exceed Online’s own system in circumstances where a breach of Exceed Online’s own internal security may reveal them;
(b) ensuring that only those employees and contractors of Exceed Online who are required to access the Facilities using Exceed Online’s systems and the Means of Access are able to do so;
(c) ensuring that the Facilities are not capable of being accessed by a system or user, which transits Exceed Online’s own systems, except as permitted by the Agreement.
5 Pricing and payment
5.1 The Customer will pay the amounts and/or at the rates specified in the Schedule in accordance with the timing for payment specified. All amounts must be paid in full without set-off or counterclaim and except to the extent required by law, free and clear of any deduction on account of tax or otherwise.
5.2 If Exceed is required to attend the Customer’s premises for any reason pursuant to this Agreement, the Customer will reimburse Exceed for reasonable transport and/or accommodation expenses incurred. This does not apply to clients who have offices located on the North Shore of Auckland.
5.3 If the Customer fails to pay any invoice by the invoice due date, then without prejudice to Exceed’s rights under this Agreement, the Customer shall also, pay interest on the outstanding amount at the rate of 5% per month accumulative from the due date until the date payment is received.
5.4 Payment terms specified in the schedule define when payments are due. If payments are not made on the dates specified, non payment is then defined as being overdue. The Customer will then be subject to debt collection proceedings as defined by Exceed. The customer will be liable for all debt collection costs.
6 Consulting services
6.1 Exceed will provide consulting services to the Customer in accordance with the Schedule and Appendix.
7 Additional services
7.1 If the Customer wishes Exceed to perform any services other than the services referred in the schedule (including without limitation to provide any additional functionality) or to provide further or other products or software, then Exceed shall be entitled to quote the Customer separately for the provision of those services or the provision of those products or software. If the Customer accepts that quotation then the provisions of this Agreement will apply to the provision of those additional services, products or software.
8 Project Changes
8.1 In the event that the project requires changes which were not expected at the outset or the customer request changes to services. This could involve a price variation. If this does take place, we will endeavor to reach a mutual agreement via a written variation to the services (“Change Specification”). Any Change Specification will become part of the contract terms for thi project. If a mutual agreement cannot be reached on the variation (including the price of the variation), the Services will continue in accordance with the terms of this contract.
8.2 The process to implement the clients new scope is as follows:
(a) The project is put on hold
(b) The project is handed to an Exceed Online Director to discuss with the client
(c) An approach is defined by both the Director and the client
(d) If new pricing is required, the Director manages this directly with the client
(e) Once the new request has been signed off by the client, the project is then passed back to Exceed Projects team, the hold status is then lifted and the project is back into the queue. There is no guarantee the project will retain the same priority status when it is put back into projects.
9 Warranties
9.1 We warrant that we will provide all our Services with the care and skill that can be expected from a competent E-Business advisor and developer.
9.2 We also warrant that for 60 days from the go live date the website will conform to the web specifications. If this warranty is breached within the Warranty Period we will bring the Website into conformity at our cost. Note that this warranty does not extend to any deviations caused by your negligence, misuse or alterations or modification made by you that we have not permitted in writing.
9.3 Except as mentioned above, all conditions and warranties, express or implied, are excluded to the maximum allowed by law. In particular, we do not warrant that the Website (if any) will:
(a) be completely free of defect or error; or
(b) be completely secure; or
(c) work on all internet browsers, operating systems and screen resolutions.
9.4 Also, if we recommend that you use someone else’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 the use of any automatic credit card transaction process facility or payment gateway.
9.5 You agree that to the extent that the Services are purchased by you for the purpose of your business, the provisions of the Consumer Guarantees Act 1993 do not apply.
10 Confidentiality
10.1 Exceed will not disclose to any third party or use other than for the purposes of the Agreement any knowledge or information imparted to or obtained by it during or in connection with the fulfillment of the agreement which is of a secret or confidential nature relating to the business, equipment, processes relating to the equipment, the products, services, process or business strategies offered or employed by the Customer. This obligation of confidence will cease to apply in relation to information that Exceed is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach by Exceed of its obligations of confidence under the Agreement.
11 Intellectual Property
11.1 Exceed are developing the website for the Customer using Magento which is an open source development environment. The Customer acknowledges that Exceed are able to use the website layouts and templates developed for the Customer for Exceeds other clients where required. The customer retains the Intellectual Property in their Materials however both Exceed and the Customer acknowledge that due to the nature of open source there is no Intellectual Property in the website templates themselves.
11.2 We also understand that you are paying for the Website, and need to be able to use it. So, provided you meet your payment obligations under this Agreement then the Customer is entitled to use and modify the website as it wishes in the future without any restriction provided that all monies owing under this agreement have been paid to Exceed.
12 Liability
12.1 Notwithstanding any other provision in the Agreement, in no event will Exceed be liable to the Customer for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this Agreement (including for loss of profits, use, data, or other economic advantage), however, it arises, whether for breach of this Agreement or in tort (including negligence), and even if Exceed Online has been previously advised of the possibility of such damage.
12.2 Exceed will not be liable to the Customer for any lost profits, or reduction in business once this agreement has been fulfilled.
12.3 The Customer indemnifies Exceed Online and will keep it indemnified (on a solicitor and own client basis) from and against any claims by any third party alleging infringement by Exceed Online of any rights of that third party (including without limitation Intellectual Property rights) where the claim arises from incorporation into the Website or the Software of any material or ideas provided by the Customer.
12.4 Exceed Online will be responsible for the backup and protection of the Software and Website as applicable in accordance with the terms and conditions under which any hosting services are provided by Exceed Online under the Agreement and if Exceed Online is not providing hosting services the Customer shall be fully responsible for such backup and protection.
13 No Poaching
13.1 The Customer undertakes that it will not for a period of two years from the expiration or termination of the Agreement entice away or endeavour to entice away any employee of Exceed Online. The Customer acknowledges that the prohibition and restriction contained in this clause are reasonable in the circumstances and necessary to protect the business of Exceed Online.
14 Agreement non-exclusive
14.1 The Customer acknowledges that Exceed Online is providing Services to the Customer on a non- exclusive basis and may provide services of the same or a similar nature as the Services to any other party. Exceed Online acknowledges the importance to the Customer of its obligations under Cl.10.1 in providing services to any other party.
15 Exclusions
15.1 Browser compatibility and support for:-
(i) IE7, IE8, Google Chrome 5.0, Firefox 3.6, Safari 5
(ii) Exceed websites will not comply to future Browser versions which are not created at the time of signing this Agreement
16 Termination
16.1 This Agreement may be terminated in the following circumstances:
(a) immediately by either party by notice in writing to the other party if the other party fails to remedy a breach of the Agreement within thirty (30) days of receipt of a notice from the non-defaulting party of such breach requiring it to do so (or 7 days in the case of failure to pay any amount due by the due date); or
(b) by either party immediately by notice in writing if the other party takes any corporate action or other steps are taken or legal proceedings are started (and are not withdrawn, discontinued or struck out within twenty-one days) for its winding up, liquidation or dissolution (other than for the purposes of reconstruction) or the appointment of an administrator, receiver, and manager, official manager, liquidator, trustee or similar office of it or of any or all of its revenues and assets (“Insolvency Event”), and such Insolvency Event remains in existence in respect of such party as the time of service of the notice.
16.2 On termination of the Agreement however occurring, all moneys unpaid by the Customer pursuant to this Agreement will immediately become due and payable. If such moneys remain unpaid for a period of seven days then (without prejudice to any other rights that Exceed Online may have for breach of the Agreement or otherwise) Exceed Online will be entitled to retake possession of and disable any software provided pursuant to this Agreement (including by remote means). PROVIDED HOWEVER that in the event that the Customer notifies Exceed Online of a bonafide dispute that moneys are owing and lodges the amount disputed with a stakeholder pending resolution of the dispute Exceed Online shall not be entitled to retake possession of or disable any software provided pursuant to this agreement (including by remote means).
17 General
17.1 Any notice required or contemplated by the Agreement shall be deemed to have been duly given if it is in writing, properly addressed and delivered personally or sent by mail or by fax to the Customer at the address or fax number and to Exceed Online either to the PO Box or fax number.
17.2 The Customer may not assign any of its obligations under the Agreement without the prior written consent of Exceed Online. Also Exceed Online may arrange for subcontractors to perform any of Exceed Online’s obligations under the Agreement.
17.3 Exceed Online will not be liable to the Customer or to any third party for any non-performance or delay in the performance of its obligations under the Agreement, if events or conditions beyond its reasonable control cause the non-performance or delay and Exceed Online gives the Customer prompt notice thereof. In no event will this provision affect Customer’s obligation to make payments under the Agreement except in respect of Services that are unable to be performed by Exceed Online, until they can be performed.
17.4 Exceed Online has the right to place a link on the Home Page of the website stating Services and Company Name, linking to the Exceed Online website. Exceed Online will guarantee the text will be positioned at the bottom of the Home Page. If the link positioning is to be placed elsewhere, written permission from the client will be required.
17.5 Exceed Online has the right to the use of the Customer’s brand to promote as a customer of Exceed Online. The Customer’s brand will be used on Exceed Online’s website and email campaigns. The Customer’s brand will not be used in any other promotion medium without written consent from the Customer.
17.6 A failure, delay, relaxation or indulgence by either party in exercising any right, power or privilege conferred on that party by the Agreement shall not operate as a waiver of the power or right. A single or partial exercise of any right, power or privilege hereunder does not preclude the further exercise of the same right or the exercise of any other right hereunder. A waiver of a breach does not operate as a waiver of any other breach.
17.7 If any part of the Agreement is held by a court of competent jurisdiction to be invalid, then:
(a) where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and
(b) in any case the offending provision must be severed from the Agreement the remainder of the Agreement shall continue in full force and effect unless such reading down or severance affects the basic nature of the Agreement.
17.8 Exceed Online will not be liable for failures or delays attributable to causes beyond its reasonable control.
17.9 The Agreement shall be governed by and must be construed in accordance with the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
