Web Site Development\Design Terms and Conditions
TheVirtual Limited will endeavour to operate in a fair and reasonable manner at all times and it is part of our ethos to ensure we maintain a great relationship with our clients. It is, however, important to have certain contractual aspects agreed in order to protect both parties.
By undertaking a Web site design project with TheVirtual you (The Client) are agreeing to the following terms and conditions.
Relationship of the Parties
The parties intend that an independent contractor relationship will be created by this contract, and that no partnership, joint venture or employee/employer relationship is intended or implied.
The project will be run according to the TheVirtual’s Web Site Project Process.
If TheVirtual has produced a specification document for the project then we will endeavour to work within the time frames scheduled, provided you supply us with:
Copy, information, logos, designs, graphic and related materials to be incorporated into the web solution by the scheduled data collection delivery date
Pay the 20% deposit prior to the Project Specification
During the Web Site Development Cycle, TheVirtual may at intervals place versions of the client's web site on one of TheVirtual demonstration servers in order that the client may view and comment upon the web site's progress, and approve design concepts and prototypes.
When both TheVirtual and the client agree that the web site meets the criteria agreed during the projecting process, TheVirtual will invoice the client for the remainder of the amount due for the project.
TheVirtual cannot always guarantee to start work immediately on a project but will agree to a date with the client as to when work can commence and be completed.
The Client may conduct the acceptance tests on the deliverables as soon as possible after installation to ensure that they perform in accordance with the proposal. If a deliverable does not pass the acceptance test, we will correct the failure. The Client may then repeat the acceptance test. Such processes shall continue until the relevant deliverable passes the acceptance test.
All material including text, images and code supplied by the client and used in the construction of the client’s website, will remain the client’s property. All such material will be assumed to be the property of the client and free to use without fear of breach of copyright laws.
The copyright for any material provided by TheVirtual Limited, such as HTML code, graphics, photographs and text, but excluding software code, will remain the property of TheVirtual until such time as payment has been made in full whereupon they will become the property of the client.
The client will be given access to the source code and may take the code to another developer for purposes of maintaining or extending upon the system.
The parties acknowledge that TheVirtual may accept jobs from other clients to develop Web solutions with the same or similar functionality to the web solution, and that TheVirtual may replicate and reuse techniques, structures and modules of program code used in the creation of the web solution.
Confidentiality and Nondisclosure
TheVirtual agrees to hold confidential or proprietary information or trade secrets ("confidential information") in trust and confidence and agrees that it shall be used only for the purposes of the web site project, shall not be used for any other purpose, or disclosed to any third party.
No copies will be made or retained of any written information or prototypes supplied without the permission of The Client.
At the conclusion of any discussions, or upon demand by The Client, all confidential information, including prototypes, written notes, photographs, sketches, models, memoranda or notes taken shall be returned to The Client.
Confidential information shall not be disclosed to any employee, consultant or third party unless they agree to execute and be bound by the terms of this Agreement, and have been approved by TheVirtual and The Client.
This Agreement and its validity, construction and effect shall be governed by the laws of New Zealand.
All prices are quoted exclusive of GST. GST is payable by New Zealand residents, this cost does not apply to overseas orders.
Terms of Payment
An invoice for 1/5 of the price for the project will be provided on acceptance of the proposal. This invoice must be paid prior to the commencement of the project.
Once the project is complete and approved by the client the final balance will be invoiced at the end of the month. Payment for this invoice shall be made on the 20th of the month following the date of issue of the invoice unless otherwise arranged.
Late Payment – If we haven’t received payment for your website development within 15 days after the due date, your website will be switched off until payment is received. Unpaid accounts will incur late payment fees and collection costs.
Maintenance and Enhancements
TheVirtual provides maintenance and enhancements services for its clients; however any maintenance or updates are outside the scope of the design project. When updates are required TheVirtual will provide time and materials based quotes for this work.
Validity of the Agreement
Either party may terminate the agreement on 7 working days' written notice to the other party.
TheVirtual reserves the right to cease immediately without liability to provide the service and to terminate this agreement if The Client should go into liquidation or bankruptcy, or if The Client fails to meet any obligation in accordance with this agreement.
In addition, TheVirtual will immediately provide the client with all work completed as part of the Agreement should TheVirtual enter a liquidation or bankruptcy process, or should the Agreement be terminated.
If at any point during the Web site Development Cycle a client wishes to cancel, they may do so but will be invoiced an amount that TheVirtual judges to be proportional to the amount of work completed on the project. If the amount of work completed is judged by either party to be less than 20% the project, no invoice will be issued, but the 20% deposit shall not be refundable.
Assignment and Delegation
We may subcontract the performance of any of our responsibilities under this contract to another party with the clients consent but will maintain our right and responsibilities to the client.
TheVirtual takes full liability for all work that is subcontracted to another party by TheVirtual Limited. If subcontractors are used and their cost to TheVirtual increase above what has been agreed by the client, the client has the right to refuse payment of the higher amount.
The Client may assign or transfer any of your rights and responsibilities under this contract to another party with consent of TheVirtual Limited.
The Client agrees that TheVirtual will not be liable for any indirect or consequential damages, including but not limited to, loss of profits or for any claim made on the client by any other party, even though TheVirtual may have been notified of such damage or claims.
We shall not be liable to The Client for any loss or damage directly or indirectly arising out of or in connection with any delay in delivery of the goods or failure to perform its obligations under this agreement where such delay is caused directly or indirectly by an act of God, armed conflict, labour dispute, civil commotion, intervention of a government, inability to obtain labour, materials or manufacturing facilities, accidents, interruptions of, or delay in, transportation or any other cause beyond our control.
The Client agrees to defend, indemnify and hold us harmless from and against any and all claims, losses, liabilities and expenses (including attorneys' fees) related to or arising out of the services provided by us to you under this agreement, including without limitation claims made by third parties (including your customers) related to any false advertising claims, liability claims for products or services sold by you, claims for patent, copyright or trademark infringement, claims due to disruption or malfunction of services provided hereunder, or for any content submitted by you for publication by us.
If, despite the other provisions of this agreement, TheVirtual is found to be liable to The Client then its liability for any single event or series of related events is limited to the Fees.
Due to the public nature of the Internet, all material submitted by The Client for publication will be considered publicly accessible. TheVirtual does not screen in advance customer material submitted to TheVirtual for publication. TheVirtual's publication of material submitted by customers does not create any express or implied approval by TheVirtual of such material, nor does it indicate that such material complies with the terms of this agreement.
The Consumer Guarantees Act 1993 may apply to any services we provide to you if you acquire these services for personal, domestic or household use. If this act applies, all rights you may have under it apply in addition to the rights you may have in this agreement. Nothing in this agreement will limit or exclude your rights under this act.
Where you acquire or hold yourself out as acquiring our services for the purpose of a business, then you agree that the provisions of the Consumers Guarantee Act 1993 will not apply to our service or the provision of any other services to you.
This agreement shall be deemed to be an agreement made in New Zealand and shall be subject to, governed by and interpreted in accordance with the laws of New Zealand.
Failure by any party to enforce any right or obligation with respect to any matter arising in connection with this contract shall not constitute a waiver as to that matter or any other matter either then or in the future. Any waiver of any right or obligation under this contract shall only be of any force and effect if such waiver is in writing and is expressly stated to be a waiver of a specified right or obligation under this contract.