Terms & Conditions of Trade
All services provided by Jason Koning (Aotearoa Web Design Limited) are subject to the following terms and conditions.
- Risk ↓
- Title to Goods ↓
- Personal Property Securities Act 1999 (“PPSA”) ↓
- WordPress Security, and Administrator Level Access ↓
- Deadlines and Timeframes ↓
- Re-establishment Fee ↓
- Non Communication ↓
- Liability ↓
- Security and Charge ↓
- Privacy Act 1993 ↓
- Change in Control ↓
- Accept these Terms & Conditions of Trade ↓
1.1 “AWDL” means Aotearoa Web Design Limited, its successors and assigns or any person acting on behalf of and with the authority of Aotearoa Web Design Limited.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by AWDL 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).
1.4 “Price” means the Price payable for the Goods as agreed between AWDL and the Client in accordance with clause 3 below.
2.1 Estimates that have been provided in writing (email), but not accepted will only be honoured within 5 (business) days of the creation date of the estimate.
3. Price and Payment
3.1 All new projects require an initial deposit equal to 1/3 +GST of the estimated total project cost (or no less than $260 +GST) at the time of acceptance.
3.2 If the project contains a design phase, then a progress payment as set by AWDL is payable on acceptance of the design phase.
3.3 The Price shall be as indicated on invoices provided by AWDL to the Client in respect of the Goods supplied.
3.4 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation, or any other order forms. If no time is stated, then payment will be due seven (7) days following the date of the invoice.
3.5 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to AWDL an amount equal to any GST AWDL must pay for any supply by AWDL under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
3.6 AWDL retains the right to hold all project design and development work (with the exception of content and graphics provided by the client), until payment is received in full for such items.
3.7 This forms an agreement between AWDL and yourself (the client). If for any reason there is any non communication from the client or a change in circumstances occurs which results in the termination of the project, the client agrees to pay for any time spent on the project by AWDL – but not yet billed – in full.
4. Continuing Authority
4.1 The client acknowledges that this is a continuing authority and can only be cancelled by giving AWDL 15 days prior notice in writing.
5. Default and Consequences of Default
5.1 The client accepts that payment terms in relation to AWDL’s fees provide that payment is to be made within 15 days of the date of the invoice unless otherwise agreed with AWDL in writing.
5.2 If payment is outstanding the client accepts that all work will cease until the account is either settled or a satisfactory agreement is in place.
5.3 If the outstanding payment relates to a service provided by AWDL, that service will be suspended until the account has been paid in full.
5.4 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at AWDL’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
5.5 If the Client owes AWDL any money the Client shall indemnify AWDL from and against all costs and disbursements incurred by AWDL in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, AWDL’s collection agency costs, and bank dishonour fees).
5.6 Further to any other rights or remedies AWDL may have under this contract, if a Client has made payment to AWDL by credit card, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by AWDL under this clause 5 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this agreement.
5.7 A re-establishment fee may also apply.
5.8 AWDL do not accept cheques as a method of payment.
6.1 The initial meeting is always free of charge, any subsequent meetings are chargeable and additional to any project estimates. If in person, the amount invoiced will includes travel to and from the meeting location.
7. Web Site Design Credit
7.1 All AWDL clients will have a small ‘Design (and/or Development) by Aotearoa Web Design’ text link in the footer of their website on no less than one page.
7.2 By hiring AWDL to work with you on your project you are agreeing to this, and you understand that this link may not be removed without AWDL’s prior consent, or unless some other arrangement has been agreed to – by both parties.
8. Email Hosting
8.1 AWDL do not host email, however we highly recommend using Google Apps for domain based (email@example.com) email hosting and storage, and can provide technical support in setting this up for you.
9. Email Forwarding
9.1 It is the client’s responsibility to check & confirm all email forwarders that have been set up by AWDL are working as expected.
10. Website Hosting
10.1 AWDL provide website hosting in the majority of cases through OpenHost. OpenHost is 100% New Zealand owned and operated, fully DNC, and ICANN accredited. You agree that your contractual relationship is solely with AWDL and not with any web hosting company that we may use.
11. WordPress Software Updates
11.1 AWDL take security seriously, and as such all critical WordPress security related software updates will be undertaken automatically and charged for accordingly – irrespective of whether or not you have a support contract.
11.2 This is also the case for any theme frameworks updates. If you have taken over responsibility for your own website updates, it is advised that you do so in a timely manor – no less than monthly. Any issues arising from your failure to do so may result in support charges to rectify the situation.
12.1 AWDL reserves the right to hire subcontractors on any given project should the need arise.
13.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
13.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, AWDL is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by AWDL is sufficient evidence of AWDL’s rights to receive the insurance proceeds without the need for any person dealing with AWDL to make further enquiries.
13.3 Software and third party graphics or programs are not transferred to the client, and remain under copyright of their respective owners or publishers.
13.4 AWDL reserves the right to resell custom designed websites that remain unpaid by the original client. AWDL also reserve the right to resell unaccepted mock-ups or other graphics created, or code written by AWDL but not in legal use by the client.
13.5 AWDL reserves the right to display website’s and graphics that have been designed and/or built by AWDL on this website, and in any marketing material.
14. Title to Goods (Including any incidental items supplied as part of any Services)
14.1 AWDL and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid AWDL all amounts owing to AWDL; and
(b) the Client has met all of its other obligations to AWDL.
14.2 Receipt by AWDL of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
14.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 14.1 that the Client is only a bailee of the Goods and must return the Goods to AWDL on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for AWDL and must pay to AWDL the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for AWDL and must pay or deliver the proceeds to AWDL on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of AWDL and must sell, dispose of or return the resulting product to AWDL as it so directs.
(e) the Client irrevocably authorises AWDL to enter any premises where AWDL believes the Goods are kept and recover possession of the Goods.
(f) AWDL may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of AWDL.
(h) AWDL may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
15. Personal Property Securities Act 1999 (“PPSA”)
15.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Client to AWDL for Services – that have previously been supplied and that will be supplied in the future by AWDL to the Client.
15.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which AWDL may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, AWDL for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of AWDL.
15.3 AWDL and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
15.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
15.5 Unless otherwise agreed to in writing by AWDL, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
15.6 The Client shall unconditionally ratify any actions taken by AWDL under clauses 15.1 to 15.5.
16. WordPress Security, and Administrator Level Access
16.1 AWDL are happy to provide administrator level access. However – it is important you are aware of the responsibilities this entails.
17. Deadlines and Time-frames
17.1 AWDL understands the importance of completing projects in a timely manner. Any delays incurred by the client will cause a subsequent and equal delay in any agreed schedules, and will impede AWDL’s ability to meet any deadlines previously agreed to at the beginning of the project.
18. Re-establishment Fee
18.1 Should any project be inactive for a period of 30 days (or more) due to any client related delay, a re-establishment fee of $260 + GST will apply in order to cover time spent becoming reacquainted with the requirements of the project.
18.2 This does not apply to ongoing site maintenance, updates or additions. A client related delay includes failure to pay invoices within the required time-frame.
19. Non Communication
19.1 If AWDL is unable to communicate with a client on a project for an extended period of time (5 business days) – by phone or email, the project will be put on hold.
19.2 Any previously agreed to time-frames or deadlines will be null and void and will need to reassessed upon the resumption of communication. A re-establishment fee may also apply.
20.1 Services purchased from AWDL are provided “as is” without warranty of any kind.
20.2 In no event shall AWDL be liable to the client for any direct, indirect, special, punitive, incidental, or consequential damages arising out of the use of their website, services, web hosting and/or goods provided to the client. This includes, without limitation, lost profits, business interruption, loss of data or other losses directly resulting from the use of the website, services, and/or goods provided to the client. The entire risk as to the quality and performance of the web design and/or development work rests with the client.
21. Security and Charge
21.1 In consideration of AWDL agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
21.2 The Client indemnifies AWDL from and against all AWDL’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising AWDL’s rights under this clause.
21.3 The Client irrevocably appoints AWDL and each director of AWDL as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 21 including, but not limited to, signing any document on the Client’s behalf.
22. Privacy Act 1993
22.1 The Client authorises AWDL or AWDL’s agent to:
(a) access, collect, retain and use any information about the Client;
(1) including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(2) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by AWDL from the Client directly or obtained by AWDL 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 Client.
22.2 Where the Client is an individual the authorities under clause 22.1 are authorities or consents for the purposes of the Privacy Act 1993.
22.3 The Client shall have the right to request AWDL for a copy of the information about the Client retained by AWDL and the right to request AWDL to correct any incorrect information about the Client held by AWDL.