GFM Website Terms and Conditions
Go Forward Marketing Limited (GFM ) General Terms & Conditions, Website Development Terms & Conditions and Advertising Terms & Conditions.
All prices are in NZD
GENERAL TERMS AND CONDITIONS
These General Terms apply to all Goods and Services provided by Go Forward Marketing Limited (GFM ) to any person (each a Customer).
1. SERVICES - GENERAL
All Goods and Services will be supplied by GFM upon the specific terms applicable to those Goods or Services (specific service terms) and these General Terms (together the Agreement).
If there is any conflict between these General Terms and the specific service terms, the specific service terms will prevail.
1.3 Service confirmation
GFM will give the Customer an order, a set up email or other written confirmation detailing the Services to be supplied and the commencement date. The Customer is deemed to have accepted, and be bound by, the Agreement from the commencement date.
1.4 Fixed term arrangements
If the Goods or Services are to be provided for a fixed term, then, upon the expiry of the term, Goods and Services will continue to be provided on a monthly basis at the fee applying during the fixed term. Clause 8.1 will apply in regard to termination.
1.5 Commencement of Services
GFM will use its reasonable endeavours to commence the Services on the commencement date, provided that GFM will not be liable for any delay in doing so resulting from any act or omission of the Customer or any other person, including any failure by the Customer or any other person to supply information, inputs, hardware, software or other systems necessary to commence the Services.
If the Customer wishes to change the Services, GFM will provide a further written confirmation pursuant to clause 1.3, which will supersede any previous written confirmation.
1.7 Service level
Where applicable, GFM will use its reasonable endeavours to supply the Services to the applicable service level specified in the specific service terms.
The Customer will pay (in New Zealand currency) all applicable fees and charges (without deduction or set off) in the manner specified in the specific service terms, or if no payment method is specified, then as follows:
(a) for Goods or Services to which a monthly fee applies, the fee must be paid in advance before the first day of the month for which it applies. If Services commence intra month, the fees for that month will be added to the fees payable for the following calendar month; and
(b) for Goods or Services to which a one off fee applies, including fees payable for support and other services that are not included in any set charges, payment must be made within 20 days after supply, unless GFM requires otherwise.
2.2 Credit card payments
Payments by credit card will incur a surcharge.
The Customer will pay goods and services tax (GST) and all other applicable duties and taxes. GFM will advise the Customer of the GST payable on its invoices.
GFM may, other than in regard to fixed term contracts, change its charges and fees, or any pricing structure, at any time upon written notice to the Customer, provided that such change will not take effect until one month after GFM gives notice. If the Customer does not accept the change, it may terminate the Agreement pursuant to clause 8.1.
The Customer will pay interest at a rate of 2% above GFM 's bank's commercial overdraft rate on any overdue amount, from the date payment was due to the date GFM receives payment in cleared funds.
2.6 Withholding payment
The Customer shall not withheld or set off any amount payable to GFM .
2.7 Third party charges
Unless GFM agrees otherwise in writing, the Customer must pay all fees and other charges of those third parties engaged by the Customer or GFM in relation to the performance of the Services, including services relating to the installation of telephone lines, internet or any equipment.
2.8 Enforcement costs
The Customer is liable for all costs and expenses (including all legal costs and expenses incurred on a solicitor/client basis) incurred by GFM in the enforcement of any of its rights under the Agreement.
GFM may require the Customer to pay a security deposit of an amount specified by GFM before providing any Goods or Services. GFM may keep all or any of the deposit as compensation for any costs, losses or liability suffered or incurred by GFM due to the acts or omissions of the Customer, or any of its employees, agents, contractors or any other person for whom the Customer is responsible. GFM will return the balance once it is satisfied the Customer has complied with all its obligations under the Agreement.
3. ACCEPTABLE USE POLICY
The Customer must at all times:
(a) comply with all laws applicable to the use of the Goods and Services;
(b) ensure the Customer holds, maintains and complies with all software licenses relating to the use of the Goods and Services;
(c) refrain from transferring, storing or using offensive, unlawful or objectionable materials or images;
(d) refrain from engaging in spamming, attacking or any other form of malicious or unlawful conduct; and
(e) refrain from engaging in any other conduct, which in GFM 's view, affects, or may affect, GFM 's ability to provide Goods or Services to the Customer or to any other person, or causes, or may cause, harm or loss to GFM or any other person.
3.2 Prohibited publications
Without limiting clause 3.1(a), the Customer must not publish or file the following content on its servers (including pictures, links and texts):
(a) any material, which in GFM 's view, breaches or infringes, or may breach or infringe, GFM or any other person's copyright, or trademark, patent, design or other rights;
(b) any material that is defamatory;
(c) any material which, in GFM 's view, is or contains anything obscene, pornographic or offensive, including links to any such material;
(d) distribution lists to be used via unsolicited email or other mass electronic mailing; or
(e) IRC clients, bots, servers.
The Customer shall at all times retain ownership of the Customer Information and GFM shall at all times retain ownership of the GFM Information, including for the avoidance of doubt, GFM 's Intellectual Property.
Subject to clause 9.4, the Customer and GFM may only use each others Confidential Information in relation to the use, provision and performance of the Goods and Services. Each party must use their best endeavours to keep the other party's Confidential Information secure and at all times confidential.
(a) No party shall disclose any of the other party's Confidential Information to any person, and must also ensure their employees, agents, and contractors do not disclose such information, except as required for the proper use and performance of the Goods and Services, and then on a confidential basis.
(b) The parties will immediately inform the other if they become aware or suspect there has or could be an unauthorised disclosure of Confidential Information, or they are required by law to disclose it.
Upon the expiry or termination of the Agreement, the parties will either return or destroy each others Confidential Information (at the option of the owner) and all copies of it, other than information to be retained for audit or regulatory purposes.
4.5 Publication of information
(a) The Customer is responsible for all information and material transmitted, distributed or accessed by them.
(b) GFM does not check, monitor or vet any information transmitted, distributed or made available through the servers and networks provided or access as part of the Services. The Customer engages in these activities at its own risk.
4.6 Joint promotion
Subject to clause 9.4, the Customer permits GFM to publicise the business relationship between it and GFM for marketing and promotional purposes, excluding confidential and commercial terms relating to the particular Goods and Services provided to the Customer.
4.7 IP addresses
GFM retains control and ownership of all IP numbers and addresses that may be assigned to the Customer, and GFM may at any time change or remove any IP numbers or addresses.
5.1 Provision of Services
GFM shall not be liable for any interruption or delay in the provision of any Goods or Services as a consequence of:
(a) any act or omission of the Customer or any third party, including any of the Customer's employees, contractors or agents, any internet service provider or any other utility provider (such as power and telephone companies); or
(b) any cause reasonably beyond GFM 's control (Force Majeure) including without limitation fire, earthquake, volcanic eruption, tornado, lightening, flood, storm, any other act god, burglary or vandalism.
5.2 Limitation on liability
(a) GFM shall not be liable to the Customer, whether in contract, tort (including negligence) or otherwise, for loss of profits, business, revenue, goodwill, opportunity, loss of data or any other form of indirect or consequential loss or damage.
(b) To the maximum extent permitted by law, GFM's total liability under the Agreement whether in contract, tort (including negligence) or otherwise, is limited to an amount equal to the total fees and charges paid or payable for the applicable Goods or Service giving rise to such liability, in the first 6 month period of the Agreement.
5.3 Implied warranties
(a) The Customer acknowledges that where the Goods or Services are being provided for business purposes or in trade, the provisions of the Consumer Guarantees Act 1993 are expressly excluded.
(b) All terms, conditions, guarantees or warranties (including implied warranties as to merchantable quality and fitness for purpose), which may be implied into the Agreement are excluded to the maximum extent permitted by law. If legislation implies any such term, condition, guarantee or warranty into the Agreement, and such legislation does not permit the exclusion or modification of it, GFM 's liability for any breach is limited, to the maximum extent permitted by law, and at its option, to:
(i) replacing the Goods or paying another person acceptable to GFM to provide similar Goods; or
(i) repairing the Goods;
(ii) re-performing the Services; or
(iii) paying another person acceptable to GFM to re-perform the Services.
6.1 The Customer indemnifies and holds GFM harmless, to the fullest extent permitted by law, against all costs, expenses (including all legal costs and expenses on a solicitor/own client basis and Taxes), losses and other liability sustained or incurred by GFM , and against any claims made or proceedings brought against GFM as a result of:
(a) a breach of these General Terms, any specific service terms or any software license by the Customer, or any of the Customer's employees, agents, contractors, customers, clients, or any other person for whom the Customer is responsible;
(b) any security breach, attack or error caused or made by the Customer or its employees, agents, contractors, customers, clients, or any other person for whom the Customer is responsible;
(c) any other act or omission by the Customer, or by any of the Customer's employees, agents, contractors, customers or clients, or any other person for whom the Customer is responsible, including any breach or violation of any law; and
(d) any fault or failure of, or damage to, any of the Customer's property located at GFM 's premises. The Customer shall pay to GFM upon demand, the amount (including all legal costs and expenses on a solicitor/own client basis) which GFM certifies as being required to compensate GFM for the cost, loss, expense or liability it has incurred.
GFM may from time to time, without notice, suspend a Service, or disconnect or deny the Customer access to any Goods or Services if:
(a) the Customer fails to comply with any provision of the Agreement or any software licence, including any failure to pay any charge or other amount payable to GFM within 10 Business Days after the due date for payment, until the breach or failure is remedied to GFM 's satisfaction. The Customer shall continue to pay all charges and other amounts payable for the Goods and Services during the period of suspension;
(b) GFM believes suspension is necessary to preserve or protect any person or property, including the information or property of another customer; or
(c) suspension is required by law.
GFM will endeavour to give the Customer at least two Business Days prior notice by email if it intends suspending the Goods or Services due to charges or other amount being overdue.
Unless the Goods and Services are to be provided for a fixed term, the Agreement may be terminated by either the Customer or GFM giving the other at least 30 days prior written notice.
8.2 Termination for breach
GFM may terminate the Agreement immediately upon written notice to the Customer if:
(a) the Customer fails to pay any amount owing to GFM on the due date for payment;
(b) the Customer breaches any provision of the Agreement or any software license, and in Iglus opinion such breach is not capable of remedy, or if in GFM 's opinion it is capable of remedy, the Customer fails to remedy the breach within seven Business Days after receiving written notice of the breach from GFM ;
(c) GFM is instructed to do so by any law enforcement or government agency;
(d) the Customer ceases or threatens to cease to conduct its business, or disposes of, or threatens, or agrees to dispose of, all or a substantial part its assets;
(e) A receiver, administrator or similar official is appointed in respect of the Customer or its assets;
(f) the Customer is unable to pay its debts as they fall due or is deemed to be so under any law;
(g) the Customer stops or suspends payment of any of its indebtedness or threatens to do so, or begins negotiations or takes proceedings to reschedule any of its indebtedness;
(h) GFM is unable to provide the Services for a period exceeding one week due to a Force Majeure; or
(i) any other event occurs which, in GFM 's opinion, may have a material adverse affect on the Customer's ability or willingness to comply with the Agreement.
8.3 Consequences of termination
Upon termination pursuant to this clause 8, the Customer will:
(a) immediately pay to GFM all outstanding amounts, and all other amounts payable by the Customer under the Agreement, including interest and GFM 's enforcement costs and expenses (including legal costs and expenses on a solicitor/own client basis);
(b) where Goods or Services were to be supplied to the Customer for a specified period, the Customer will immediately pay to GFM all amounts that would have been payable by the Customer up to the expiry of that period; and
(c) immediately return to GFM , all of GFM 's equipment, property and all GFM Information.
8.4 Return of Customer property
If applicable, and if requested by the Customer, GFM will return all the Customer's property, equipment and Customer Information in GFM 's possession or control to the Customer.
GFM may change, amend or replace these General Terms at any time without notice.
Clauses 2.1, 2.5, 2.8, 4, 5, 6 and 9.4 survive the termination or expiry of the Agreement.
Each party will give any required notice to the other party at the physical or email address last known to the party giving notice. Each notice will be deemed to be effective if, delivered by hand, immediately, if delivered by post, 3 days after it was posted, and if sent by email, when successfully sent from the sender's email.
9.4 Privacy/use of information
Notwithstanding clause 4, GFM may collect and disclose personal and credit information about the Customer (including the Customer's account information and information about any Customer defaults) to debt collection agencies, credit reporting agencies, GFM 's lawyers and accountants, and to any person with which GFM does business, for the following purposes:
(a) if GFM is required to disclose such information to any government or law enforcement agency, or otherwise by law;
(b) obtaining a credit report or other information about the Customer to decide whether to provide Goods or Services to them, to manage the Customer's account with GFM , and/or to recover any amounts payable by the Customer, including in relation to any enforcement or Court action or proceedings;
(c) to provide the Customer with offers or information of other goods or services GFM , or any of those above persons may be able to provide to the Customer, or for other marketing purposes, unless the Customer tells GFM not to in writing, and the Customer authorises those persons to provide such information to GFM .
9.5 The Customer acknowledges that information disclosed to credit reporting agencies may be disclosed by them to other third parties as part of their collection and credit reporting services to help those third parties to decide whether to provide goods, services or credit to the Customer or to recover money the Customer owes them.
(a) The Customer must not assign any of its rights or obligations under the Agreement without the prior written consent of GFM . GFM may assign its rights and obligations under the Agreement without the Customer's consent.
(b) Any change in the effective control or management of the Customer or any parent company of the Customer, shall be deemed to be an assignment requiring the prior written consent of GFM , which consent will not be unreasonably withheld.
No waiver or breach of, or failure to enforce, any provision of, the Agreement will in any way limit the right of GFM to enforce and compel strict compliance with the provisions of such Agreement.
9.8 Entire agreement
The Agreement constitutes the entire agreement between the parties as to its subject matter, and to the maximum extent permitted by law, supersedes all previous agreements and understandings on the subject matter.
9.9 Governing law
The laws of New Zealand govern the Agreement.
10. DEFINITIONS AND INTERPRETATION
Business Hours 8.30 am to 5.00pm from Monday to Friday, but excludes statutory public holidays in Auckland, New Zealand.
Business Day any day that is not a Saturday, Sunday or statutory public holiday in Auckland or Northland, New Zealand.
Customer Information all information, content and data about the Customer, its business and its clients which is disclosed to, or acquired by, GFM in the performance of the Services, and includes all data stored on GFM 's servers.
Confidential Information Customer Information and GFM Information other than information that is or becomes:
(a) part of the public domain (other than through any breach of confidentiality by a party);
(b) lawfully known to the recipient on a non-confidential basis before being disclosed;
(c) available to the recipient from another person who is in possession of it lawfully and can disclose it on a nonconfidential basis; or
(d) required to be disclosed by law.
General Terms these general terms and conditions as amended from time to time, and includes any replacement terms.
GFM Information all information, content and data about GFM , its business and its other customers, all information content and data about the business and clients of GFM 's other customers, GFM 's Intellectual Property, and all information, content and data that is developed by GFM while providing the Goods and Services.
GFM 's Intellectual Property all intellectual property in and associated with the business of GFM and its other customers, including all trade names, trade and service marks, discoveries, improvements, systems, specifications, software provided as a service, manuals, trade secrets, know-how, procedures, computer software and programs (whether denominated software, firmware or otherwise), formulae, designs, writings, diagrams, logos, domain names, websites, drawings, copyright materials and the benefit of any applications or registrations in respect of the above and any other intellectual property and industrial property whatsoever and howsoever recorded or stored (if at all).
In the interpretation of these General Terms, unless the context otherwise requires:
(a) references to the parties include their respective executors, administrators, successors and permitted assigns;
(b) references to a person includes any form of entity including an individual, company, partnership, firm, trust, any central or local government department, and any other entity, or any other association or persons, either corporated or unincorporated;
(c) words in the singular include the plural and vice versa;
(d) words importing one gender include the other genders;
(e) any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done; and
(f) headings have been inserted for convenience only and will not affect the construction of the Agreement.
These Terms and Conditions are subject to change at any time without notice.
WEBSITE DEVELOPMENT TERMS & CONDITIONS
These Terms and Conditions are subject to change at any time without notice.
The named client is engaging Go Forward Marketing Limited, Main office located at 22a Rathbone Street, Whangarei and, as an independent contractor for the specific purpose of developing and /or updating a World Wide Web site to be installed on Go Forward Marketing Limited web server. Hereafter the client will be known as the “Client” and Go Forward Marketing Limited will be known as the “Developer or GFM”
The client hereby Clientises the Developer to access any existing account and Clientises the Developer to transfer any and all current site data including but not limited to cgi-bin directory, and any other directories or programs which need to be accessed for this project, from the current provider to the Developers own web server.
2. Standard Hosting Service
It is agreed that the website will be hosted by the Developer. Hosting Agreements are negotiated on a Client-by-Client basis, as each Client will have differing needs. If you have chosen a Hosting Agreement the pricing, and terms of such will outlined in our quote for the client's site. Go Forward Marketing Limited Hosting Terms & Conditions are available to the Client on request.
3. Domain Name Registration
The Developer will secure a domain name for the client at the client’s request. Domain name registration is an additional cost of $50 + GST per annum. Names are purchased under the Developers control however once full payment for all contracts, products or services rendered has been received, the codes are released to you on request. If the client already has a domain name, the Developer will co-ordinate redirecting the address to the new host. The client agrees to leave control of the Domain name vested in the Developer and agrees that in the event of a dispute the domain name shall not be transferred away from the Developer control, such a movement would contravene these Terms & Conditions rendering any arrangements null and void requiring payment within 7 days
The Developer will provide e-mail and telephone assistance to the Clients designated representative regarding management of the Clients website. Included in the price is 60 minutes of remote access training for any content management or e-commerce systems.
Final Text is to be supplied by the Client. The amount of text per page is not limited to any amount of words, however if text is not supplied in a soft copy (disk or email), additional fees will apply for this conversion
6. Cross Browser Compatibility
Our agreement contemplates the creation of a website viewable in the browser of your choice, and additional costs come into effect if you require your site to work exactly the same way in both Mozilla and Microsoft internet Explorer.
The Client is aware that some advanced techniques on the Internet may require a more recent browser version and brand or plug-in. The Client is also aware that as new browser versions of Internet Explorer are developed, the new browser versions may not be backward compatible. In the absence of a Maintenance Agreement time spent to redesign a site for compatibility due to the introduction of a new browser version will be separately negotiated and in addition to the base price of our agreement.
7. Graphic Creation
All graphical design must be developed by suppliers/contractors that have been approved the Developer, and under no circumstances will any files be accepted for use from unapproved sources. This allows us to maintain the extremely high standard of graphic development our clients expect and deserve. Our graphical designers will use branding elements and imagery supplied by the client in creating the look and feel of your website or newsletter.
8. Photography, Scanning and / or CD Burning
Clients are required to provide all images as required on the website in electronic format. If images need to be scanned in our normal hourly rate will apply.
9. Page Redirection / Plug in Technology
E-Commerce is always an option to the Clients of the Developer. If chosen, the specific understanding of our arrangement will be listed in the attached quote.
11. DHTML / Real Audio/Video / QuickTime / QuickTime VR / Databases / Java Applets
Our base agreement does not contemplate using any of the above technology however is always an option for the Client. If any of the above technology is desired, the rate will be listed in the attached quote. The Client understands that this technology may not work in older browsers and some technology is not cross-browser specific.
12. Server Log Files and Analysis
This agreement contemplates Webalizer software to provide graphical, web-based server logs. The Developer will assist in regard to helping the Client interpret log files with minimal training. The Client is aware that Comprehensive Website Stats are not possible for Full Flash Technology sites.
13. Merchant Services
If the Clients website requires the ability to accept credit cards and/or paypal, the client will need a merchant account. The Client understands that any charges necessary to secure the Merchant Account are not covered by this agreement.
14. Payment Terms / Workflow
These are the default payment terms, in the absence of any other terms relative to an individual contract then these apply in all situations.
A non-refundable minimum deposit of 45% is required to commence work.Variations of this at GFM's discretion.
An approval certificate is provided at various stages, this must be signed off either by email/written document or verbally approved and any/all progress payments relating to the approval certificate must be paid. Once all progress payments have been received the next step of the development is commenced, at this time all payments received are for work/development already completed and therefore become non-refundable.
It is our practise to leave a variable amount with the client until satisfaction has been achieved, at the end of the development and all parties are agreeable then the balance is invoiced, along with any "developmental creep" invoices. Once the final development invoice has been fully paid the site goes live.
Prior to "going live" and in the event that the client is not agreeable, and all attempts to remedy or resolve the situation fail, then the remaining balance of the contract is rendered void and the parties go their seperate ways. Once the site has "gone live" it is deemed complete and full payment is expected.
All client files relevant to the development (not including proprietry code) are made available to the client with no guarantee to it's viablity once it leaves the the Developers Server environment.
If payment terms are offered, these will be detailed in the base agreement and offered in good faith. In the event that terms are accepted, but are not kept current, the full amount owing (including interest) will come due immediately.
In the event that the Developer feels that their financial risk is in danger either due to a breakdown in goodwill or a change in circumstances of the client we reserve the right to cancel the payment plan/finance without notice and request the balance in full payable within 7 (seven days) of the invoice date, once it has reached this stage any further correspondence will be through solicitors with all costs incurred being payable by the client.
If payment is not made in full by the due date, we are entitled to charge you interest on the unpaid overdue balance at the rate of 5% per annum above the current overdraft rate charged by our bankers, compounding monthly on the unpaid balance owing on the first day of each month until payment in full is received by us, and we may charge you costs (including collection costs and legal costs on a solicitor-client basis) and suspend your website and/or email services until the account is paid. We reserve the right to notify Credit Agencies of the outstanding debt.
There are 3 phases to site access restriction in the event of Non Payment
Phase 1, Restriction to Admin section of the website, this means no changes can be made to the site.
Phase2, Website is restricted from being viewed publically - this means an error page will be displayed.
Phase 3, Emails and Website restrictions are fully in place with the replacement webpage being displayed directing viewers to the accounts department of the Developer.
We reserve the right to place an "Website Unavailable, please contact Accounts for more details" or similar on the page linked to your URL in the event payment is not made in full as required.
The Developer reserves the right NOT to release any web or email services related to the domain name until the account has been paid in full.
Most frequently, problems making payment timely are the result of poor communication channels in a company's Accounting Department. If a payment delay is anticipated, please contact the Developer to discuss potential problems in advance.
Tacit acceptance and signoff on graphical layout and functionality is implied and accepted on any of the following events
• Instruction from the client either verbally or in writing, (electronic/hand written/faxed) for the site to "go live" and for it to be published on the World Wide Web.
• Payment, either in full or as part of a payment plan has been made and accepted by the Developer.
Any further work requested on Graphical elements or layout will be charged at our normal hourly rate.
Payment terms are only offered while the Developer hold the sites files on their servers and the UDAI is held by the Developer - in the event that during the payment term the UDAI is requested for any purpose then the payment option is rendered null & void and full payment of the remaining account is expected forthwith. The Developer reserves the right to hold the UDAI until all monies oweing relating to that UDAi are paid in cleared funds. Upon receipt of payment in full of any outstanding amounts the UDAI will be released to the Admin Address on record.
An 20% collection fee is added to the outstanding amount when the account is handed to a Collection Agency - other fees as applicable are recoverable from the client as standard Collections practice.
We reserve the right to notify any persons or business in regard to the account history and conduct with the use of contracts and or emails received in the course of completing said contracts.
15. Completion Date.
The Developer and the Client must work together to complete the Web site in a timely manner for both parties to remain profitable. We agree to work expeditiously to complete this project in the minimum possible time frame.
16. Updates & definitions of terms
A MINOR update consists of any work that takes up to & including 15 minutes to complete including testing. any further amount of time taken is then charged for at our hourly rate of $155.00 + GST per hour or part thereof (excluding the initial 15 minutes). This is likely to be a change of an image or altering some text on a page - up to 100 words - any longer and the update is classed as a Major update
A MAJOR update is one where we have to assess the depth of the requested update & quote on the time requirement needed to make this change. - this is likely to be the addition of pages, alternative menu items, more than 2 images, alteration of more than 100 words on any given page.
Allowance is made within the hosting contract for 1 set of minor changes per month - these are NOT acclumulative and the timer is reset at the start of each calendar month.
17. Client Amends
The Developer understands that Clients may request significant design changes to pages that have already been built to the Client's specification. To that end, please note that our agreement does not include a provision for "significant page modification" or creation of additional pages in excess of our quote (as outlined in our quote for the client's site). If significant page modification is requested after a page has been built to the Client's specification, we must count it as an additional page.
Some examples of significant page modification at the request of the Client include:
• Developing a new table or layer structure to accommodate a substantial redesign at the Client's request
• Recreating or significantly modifying the company logo graphic at the Client's request
• Replacing more than 50% of the text to any given page at the Client's request.
• Creating a new navigation structure or changing the link graphics at the Client's request
• Significantly reconfiguring the Client's shopping cart with new product, shipping or discount calculation if an ecommerce enabled site has been selected by the Client.
18. Third Party or Client Page Modification
Some Clients will desire to independently edit or update their Web pages after completion of the site as a way to control costs and avoid the expense of a Maintenance Agreement. This is always an option for Clients of the Developer. If the Client desires this capability, it will be specifically listed in our attached quote. Note however, that if this option is selected and the Client or an agent of the Client other than the Developer attempts to update the Web site and damages the design or impairs the ability for the Web pages to display or function properly, time to repair the Web pages will be assessed at an hourly rate of $175.00. There is a one-hour minimum. In this regard, Clients are encouraged to obtain a Maintenance Agreement.
19. Search Engine Registration
The Developer will optimise the Client's Web site with the supplied titles, descriptions and text and thereafter submit the Client's Web site to Google. The Developer makes no guarantee when or where you will appear on Google or any other search Engine.
20. Assignment of Project
The Developer reserves the right to assign certain subcontractors to this project to insure the right fit for the job as well as on-time completion. The Developer warrants all work completed by subcontractors for this project.
21. Additional Expenses
The Client agrees to reimburse the Developer for any critical Client requested expenses necessary for the completion of the project. Examples would be:
• Purchase of specific fonts, photography or software at the Client’s request
22. Copyrights and Trademarks
The Client represents to the Developer and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to the Developer for inclusion in the Client’s Web site are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend the Developer and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
The Clientised representative of the Client certifies that he or she is at least 18 years of age and legally capable of entering into a contractual agreement on behalf of the Client.
24. Limited Liability
The Client agrees that any material submitted for publication will not contain anything leading to an abusive or unethical use of the Web Hosting Service, the Host Server or the Developer. Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, harassment, any illegal activity, spamming, advocacy of an illegal activity, and any infringement of privacy.
The Client hereby agrees to indemnify and hold harmless the Developer from any claim resulting from the Client’s publication of material or use of those materials. It is also understood that the Developer will not publish information over the Internet that may be used by another party to harm another.
The Client agrees that it shall defend, indemnify, save and hold the Developer harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees associated with the Developer’s development of the Client’s Web site. This includes Liabilities asserted against the Developer, its subcontractors, its agents, its clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the Client, its agents, employee or assigns.
The Client also agrees to defend, indemnify and hold harmless the Developer against Liabilities arising out of any injury to person or property caused by any products or services sold or otherwise distributed over the Client’s Web site. This includes infringing on the proprietary rights of a third party, copyright infringement, and delivering any defective product or misinformation which is detrimental to another person, organization, or business
26. Laws Affecting Electronic Commerce
The Client agrees that it is responsible for complying with the laws, taxes, and tariffs related to ecommerce, and will hold harmless, protect, and defend the Developer and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the client’s use of Internet electronic commerce. The Client also understands that the Developer cannot provide legal advice.
27. Ownership to Web Pages and Graphics
Copyright to the finished graphics shall be vested with the Client upon final payment for the project. This ownership is to include, design, photos, graphics and text used within the site however DOES not include the structure within which the assembled work is installed. That is to say the server environment should be treated as an office in an office building. Should you choose to leave the services of GFM you only leave with the content of your website, NOT the structure in which it resides.Your hosting covers the rental of this server space and your development fees cover the design & furnishing of the server environment. In the event you wish to move services you understand than some or all of the elements used to create your site are not transferable. You agree that GFM accepts no liability in the event you have to redesign or redevelop your site upon moving of services outside of GFM's control.
28. Design Credit
The Client agrees that the Developer may put a by-line on the bottom of their index.html or main.html Web page establishing design and development credit. Client also agrees that the Web site created for the Client may be included in the Developer’s portfolio.
The Developer its employees and subcontractors agree that, except as directed by the Client, it will not at any time during or after the term of this Agreement disclose any Confidential Information to any person whatsoever. Likewise, the Client agrees that it will not convey any confidential information obtained about the Developer to another party.
Cancellation of the project at the request of the Client must be made by certified letter. In the event that work is postponed or cancelled at the request of the Client, the Developer will retain the original deposit. In the event this amount is not sufficient to cover the Developer for time ($155.00 per hour) and expense already invested in the project additional payment will be due. If additional payment is due, this will be billed to the Client within 10 days of notification via registered letter to stop work. Final payment will be expected within 30 days.
Any disputes in excess of $1,000 (or the maximum limit for small claims court) arising out of this Agreement shall be submitted to an Arbitrator of the Developers choosing.. The Arbitrator’s award shall be final, and judgment may be entered in any court having jurisdiction thereof. The Client shall pay all arbitration and court costs, reasonable attorney’s fees and legal interest on any award or judgment in favour of the Developer
If any provision of this agreement or part thereof is held by a court to be unlawful, invalid, and unenforceable or in conflict with any rule of law, statute, ordinance or regulation then that provision or part thereof may be deleted, the validity and enforcement of the provisions remaining shall not be thereby affected.
33. Entire Understanding
The contract and the attached quote thereto constitute the sole agreement between the Developer and the Client regarding this project. It becomes effective only when signed by both parties. It is the spirit of this agreement that this will be a mutually beneficial arrangement for the Client and the Developer. Both parties warrant that they have read and understand the terms set forth in this agreement. This agreement shall be governed and construed in accordance with the laws of New Zealand.
The Developer Reserves the right to change these Terms of Trade from time to time.
If the Developer fails to enforce any terms or to exercise its rights under these terms of trade at any time, the Developer has not waived those rights.
If any provision of these terms of trade is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by these terms of trade
This agreement is governed by the laws of New Zealand and any dispute under it shall be subject to the exclusive jurisdiction of the Courts of New Zealand
These Terms and Conditions are subject to change at any time without notice.