Terms and conditions of trade for Internet Specialists (NZ) Ltd t/a Web Tonic
1. Please read the following terms and conditions of trade.
2.1 “Seller” shall mean Internet Specialists (NZ) Ltd Web Tonic it’s successors and assigns or any person acting on behalf of and with the authority of Internet Specialists (NZ) Ltd trading as Web Tonic
2.2 “Buyer” shall mean the Buyer (or any person acting on behalf of and with the authority of the Buyer) as described on any quotation, work authorisation or other form as provided by the Seller to the Buyer.
2.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Buyer on a principal debtor basis.
2.4 “Materials” shall mean all data, graphics, pictures, trademarks, software and other materials to be incorporated in the Buyer’s web site (including, but not limited to), user data created by the operation of the Buyer’s web site;
2.5 “Price” shall mean the cost of the Services as agreed between the Seller and the Buyer subject to clause 5 of this contract.
2.6 “Prohibited Content” means any content on a Web Site that:
(a) is, or could reasonably be considered to be, in breach of any statute or any applicable law or applicable industry code; or
(b) 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; or
(c) is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights.
2.7 “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or recommendations.
2.8 “Web Site” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
2.9 “Web Server” shall mean any Web Server owned by the Seller or any third party servers that are leased by the Seller for the purposes of hosting the Buyers web solution.
3. Acceptance of Terms
3.1 Any instructions received by the Seller from the Buyer for the supply of Goods or Services and/or the Buyer’s acceptance of Services supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are binding and can only be amended with the written consent of the Seller.
3.4 The Buyer undertakes to give the Seller at least fourteen (14) days notice of any change in the Buyer’s name, address and/or any other change in the Buyer’s details.
4. Price And Payment
4.1 At the Seller’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by the Seller to the Buyer in respect of Services supplied; or
(b) the Seller’s quoted Price (subject to clause 4.2) which shall be binding upon the Seller provided that the Buyer shall accept the Seller’s quotation in writing within thirty (30) days.
4.2 The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation.
4.3 The Sellers quoted price (subject to clause 4.2) for Web Hosting shall be paid in advance by 6 monthly increments, for a period of no less than 12 months at the price stated on the sellers quote and or invoice.
4.4 The Seller may submit a detailed payment claim at intervals not less than one month for Services performed up to the end of each month. The value of Services so performed shall include the value of any variations, whether or not the value of such variations has been finally agreed between the parties.
4.5 At the Seller’s sole discretion a deposit may be required.
4.6 At the Seller’s sole discretion;
(a) payment shall be due on delivery of the Services, or
(b) payment shall be due before delivery of the Services, or
(c) payment for approved Buyers shall be made by instalments in accordance with the Seller’s payment schedule, or
(d) payment for approved Buyer’s shall be due twenty (20) days following the end of the month in which a statement is posted to the Buyer’s address or address for notices.
4.7 Time for payment for the Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.8 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Buyer and the Seller.
4.9 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price
5. Delivery Of Services
5.1 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.2 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Services (or any of them) promptly or at all.
6.1 If the Seller retains property in the Services nonetheless, all risk for the Services passes to the Buyer on delivery.
7. Errors and Omissions
7.1 The Buyer shall inspect the Services on delivery and shall within seven (7) days of delivery notify the Seller of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Services within a reasonable time following delivery if the Buyer believes the Services are defective in any way. If the Buyer 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.
7.2 For defective Services, which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Services or repairing the Services provided that the Buyer has complied with the provisions of clause
8. Buyer’s Disclaimer
8.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Buyer acknowledges that he buys the Services relying solely upon his own skill and judgement.
9. Consumer Guarantees Act 1993
9.1 If the Buyer is acquiring Goods for the purposes of a trade or business, the Buyer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by the Seller to the Buyer.
10. Buyer’s Acknowledgement
10.1 The Buyer acknowledges and understands that they are leasing the systems with the right to license these solutions and systems indefinitely while all accounts are paid and the Seller remains administrators of the Buyer’s web site. All content and material created by the Seller remains the property the Seller including, but not limited to;
(a) source code of all images and design; and
(b) systems and service processes unique to the Seller; and
(c) web site code that forms part of the Seller’s system which remains the intellectual property of the Seller and cannot be purchased outright by the Buyer.
11. Intellectual Property
11.1 Notwithstanding anything herein, the Intellectual Property Rights in the Seller’s Materials and the Seller’s Routines do not vest in the Buyer and there is no assignment of the Intellectual Property Rights in the Seller’s Materials or the Seller’s Routines to the Buyer. The Seller hereby grants to the Buyer an irrevocable, non-exclusive and non-transferable licence to use and reproduce the Seller’s Materials and Seller’s Routines for the purposes of this agreement only.
11.2 The Buyer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Buyers order.
11.3 Where the Seller has provided photographic or graphical (digital or otherwise) images for the Buyer, at the Sellers sole discretion any such images may be subject to ongoing licence payments for use of such images. The period of any such licence is determined by the Seller from time to time.
11.4 All unique graphics created by the Seller are licensed to the Buyer indefinitely for use on the web site only and may be subject to branding or release fees if required for use in other marketing or services not provided by the Seller.
12. Default & Consequences Of Non Payment
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.0% per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
12.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.
12.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Services to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller has exercised its rights under this clause.
12.4 If any account remains overdue after thirty (30) days then an amount of the greater of $20.00 or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for administration fees which sum shall become immediately due and payable.
12.5 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer.
13. Security And Charge
13.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) where the Buyer and/or the Guarantor (if any) is the owner of realty, land or any other asset capable of being caveated, both the Buyer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Buyer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Buyer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14.1 The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Buyer. On giving such notice the Seller shall repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
14.2 In the event that the Buyer cancels delivery of Services the Buyer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
15. Privacy Act 1993
15.1 The Buyer and the Guarantor/s (if separate to the Buyer) authorises the Seller to:
(a) collect, retain and use any information about the Buyer, for the purpose of assessing the Buyer’s creditworthiness or marketing products and services to the Buyer; and
(b) disclose information about the Buyer, whether collected by the Seller from the Buyer directly or obtained by the Seller from any other source, to any other credit
provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Buyer.
15.2 Where the Buyer and/or Guarantors are an individual the authorities under clause 15.1 are authorities or consents for the purposes of the Privacy Act 1993.
15.3 The Buyer and/or Guarantors shall have the right to request the Seller for a copy of the information about the Buyer and/or Guarantors retained by the Seller and the right to request the Seller to correct any incorrect information about the Buyer and/or Guarantors held by the Seller.
Our Commitment To Respecting Your Privacy:
Web Tonic (webtonic.co.nz) is committed to protecting your privacy and to complying with the National Privacy Principles of New Zealand. To better protect your privacy we provide this notice explaining our online information practices. To make this notice easy to find, we make it available on all of our website pages.
Information We Collect:
Web Tonic (webtonic.co.nz) collects your personal information to assist us in conducting business with our clients and individuals. The primary reasons for storing this information are that it helps us to provide services, information and resources. In addition, the data we gather helps us to improve our website and the way in which we do business.
When visiting this site, the following information about site visitors may be logged for statistical purposes:
• Your IP address.
• Your top level domain name (eg. .com, .gov, .au, .uk etc.)
• The date and time of the visit to the site.
• The pages accessed.
• The pages at which you entered and exited our website.
• Referring website.
• The type of browser used.
• Length of stay.
• Any errors you encountered while accessing our website.
The above information will only be used for the purpose stated and will not be disclosed further without your consent.
We will only record your e-mail address if you send us a message. It will only be used for the purpose for which you have provided it and will not be added to a mailing list, unless you request otherwise. Your e-mail address and any information that you provide about yourself are used only to complete your enquiry and facilitate the services offered by Web Tonic (webtonic.co.nz). We do not share this information with outside parties except to the extent necessary to answer your enquiry or unless required by law.
You may choose to set your computer to warn you each time a cookie is sent or you may turn off all cookies. This is achieved by changing your browser settings or by using a third-party privacy software. However, if you turn cookies off, some of our website’s functionalities may become unavailable to you.
External Site Links:
Web Tonic (webtonic.co.nz) takes reasonable steps to protect your personal information from loss, misuse, improper disclosure, or unauthorised destruction. We apply generally accepted standards of technology and operational security to keep personal information secure.
Please be aware that the Internet is an insecure medium and that there are inherent risks in transmitting information across the Internet. Information submitted via e-mail may be at risk of being intercepted, read or modified and hence, we are unable to guarantee security.
16.1 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.
16.2 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.
16.3 The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
16.4 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
16.5 The Buyer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Buyer by the Seller.
16.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
16.7 The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Buyer of such change.
16.8 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) were omitted from the Contractual Remedies Act 1979.
16.9 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.
16.10 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.
PART II: WEB SITE HOSTING
17. The Seller
17.1 The Seller will, at its sole cost and expense:
(a) install the Buyer Materials on the Seller’s Web Server;
(b) host the Buyer Web Site on the Seller’s Web Server;
(c) ensure that from the Live Date:
(i) sufficient capacity is maintained on the Seller’s Web Server to enable Users access to the Buyer Web Site in a timely manner;
(ii) the Buyer Web Site is accessible to Users in accordance with the Service Levels (subject to reasonable downtime for server maintenance which has been notified to the Buyer prior to the commencement of the downtime or Web Site Maintenance in accordance with Clause 17.1 (d));
(d) provide the Buyer with reasonable web solution access to perform content management.
18. The Seller Will Not
18.1 The Seller will not:
(a) alter or amend, or permit any person to alter or amend the Buyer’s Web Site without the written consent of the Buyer unless;
(i) the web solution contains unacceptable material; or
(ii) poses a security threat (including, but not limited to viruses, Trojans, malware, adware, or phishing), or
(iii) such alteration or amendment is part of a standard update or upgrade;
(b) post or display on the Buyer’s Web Site any advertisement, sponsorship or promotion without the written consent of the Buyer unless the web solution provided is subscription based (e.g. directory listing) or the Buyer has a leased web solution,.
(c) use any User Data for marketing, referral or other purposes except as expressly authorised by this agreement;
(d) sub-licence, rent, time-share, lease, lend or grant any rights to use the Buyer’s Web Site; or
(e) assign, transfer or authorise anyone else to exercise the rights in any licence granted pursuant to this agreement.
18.2 The Seller cannot guarantee one hundred percent availability of the Web Server and accepts no responsibility or liability for the Buyers Web Site being un-operational due to the Web Server being unavailable.
19. The Buyer Will
19.1 The Buyer will, at its sole cost and expense:
(a) develop and maintain the Buyer’s Web Site;
(b) provide the Buyer’s Materials to the Seller, in such form as reasonably prescribed by the Seller from time to time, and hereby grants the Seller a non-exclusive, irrevocable licence to use the Buyer’s Materials for the purposes of hosting the Buyer’s Web Site;
(c) do all things reasonably necessary to enable the Seller to host the Buyer’s Web Site on the Seller Web Server;
(d) ensure that the Buyer’s Materials supplied to the Seller do not contain:
(i) Prohibited Content;
(ii) a Link to any Web Site that contains Prohibited Content; or
(iii) 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.
19.2 The buyer will enter into an agreement with the seller to giving the seller exclusive right to host the buyers website for a period of time no less than 12 months from the date of commencement of service. This agreement will be deemed as automatically renewed for a further 12 month period unless the buyer gives the seller 30 days notice in writing of their intention to end this agreement.
The Buyer Will not
20.1 The Buyer will not do anything that prevents or hinders the Seller from providing hosting services to any other person.
PART III: DEVELOPMENT OF THE WEB SITE
21. The Seller Will
21.1 Upon approval of the Specifications and Quotation in accordance with this agreement, the Seller will:
(a) use its best endeavours to develop the Web Site in accordance with the Development Stages; and
(b) to the extent specified in the Specifications, negotiate and procure Third Party Agreements on behalf of the Buyer.
22. The Buyer Will
22.1 The Buyer will, in addition to any other obligations expressed in this agreement, have the following responsibilities: (a) provision of all data to be incorporated into the Web Site for testing or as final content, however where the Buyer has control of the website content through “Content Management” (CMS), the Buyer may be responsible for adding and manipulating site content;
(b) provision of logos, designs, graphic and related materials to be incorporated into the Web Site; and
(c) provision of any other information, ideas or suggestions which are to be expressly considered by the Seller in developing the Web Site.
22.2 The Buyer will ensure that the Seller is given such information and assistance as the Seller reasonably requires to enable it to construct and maintain the Web Site.
22.3 When approval is sort or required from the Buyer following completion of a development stage the Buyer will not delay the approval of that development stage beyond fourteen (14) days (time being of the essence) of being requested unless otherwise agreed to by the Seller in writing. In the event of delays beyond this time frame then the Seller shall be entitled to charge a “holding fee” of an amount to be determined by the Seller.
22.4 The Seller will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Web Site which is attributable to:
(a) incorrect information provided by the Buyer, either pursuant to this clause or otherwise; or
(b) failure by the Buyer to provide relevant information, either pursuant to this clause or otherwise;
(c) any 3rd party Materials used by the Seller in creation of the Web Site.
23.1 Subject to Clause 24.2, the Seller will provide the Maintenance Services in accordance with the maintenance terms set out in the Seller’s maintenance schedule.
23.2 The Buyer will procure all necessary authorisations, licences and consents to enable the Seller to have access to the Web Site in order to provide the Maintenance Services.