Inasmuch as the information technology industry runs to hundreds of billions of dollars a year in projects, it is quite ordinary that clients and providers often find themselves locked in disputes. A leading source of statistics about the industry, the Standish Group, reports in its 2009 analysis of information technology performance that 32% of engagements result in a timely product billed more or less on budget. Their historic analysis reflects outright cancellation by clients about 20% of the time and projects completed very late or substantially over budget about 50% of the time.
It is therefore prudent that not only the deliverables of any project are well defined but that the terms and conditions are also established. It is important that the following terms and conditions are read by the client before SPATS Limited starts work on any project.
1.0 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 Client acknowledges that SPATS Limited may accept jobs from other clients to develop Web based solutions with the same or similar functionality to the project provided or being developed for the Client.
2.0 Control of the project; Administration of domains and systems
The Client gives SPATS Limited exclusive administration control of the project and for all domains listed in the proposal agreement. The Client agrees they will not undermine or interfere directly or indirectly with any work being performed by SPATS Limited, or allow others to do so.
The project and deliverables will be defined in a proposal supplied by SPATS Limited. All projects are provided ‘as specified’ in the proposal, and will not be transferable to any other medium or hosting provider.
It is the skill and knowledge of the programmer which is being purchased in the main, not the devices by which this skill and knowledge is placed into the Clients computer or host server(s). The means of transmission is not the essence of the agreement, the object of the contract is the implementation by SPATS Limited of knowledge, skill, and ability in setting up – or working on a project.
The client agrees they will not discuss, supply, or provided any information about the project with any third party. Such information may include but is not limited to; costs, quotes, proposals, contractors, strategies, SEO techniques or passwords to anyone whatsoever, without the written authorisation of SPATS Limited. Any violation will be considered a serious breach of contract. Likewise SPATS Limited will treat your business information as confidential.
5.0 Project Credit
The Clients website will include links giving credit for work undertaken, and/or hosting. Screenshots of the project may also be displayed on any of SPATS Limited’s websites.
For the purpose of this agreement the Client transfers all computer and domain ownership right(s) to SPATS Limited for the duration of this agreement.
No one may therefore undertake any work, change in part or in whole, or attempt to access the projects (back-end systems), its computer system(s), or domain and email systems, without the written permission of SPATS Limited.
Intentional or inadvertent interference or damage to any work or the project in general by the Client or their agent(s) will be treated as criminal under New Zealand Law, in particular section(s) 248 – 252 of the Crimes Amendment Act 2003. Involvement of third parties will be treated as interference with contractual relations under the Contract Remedies Act.
7.0 Project Process
A request for a proposal for a web project is followed up with a client meeting. Then a Client Survey is needed to be completed. After the Client Survey has been completed by the client a quote will usually be compiled within 1 week. The quote will remain valid for 30 days from date of issue.
SPATS Limited cannot always guarantee to start work immediately on a project but will arrange a date with the client as to when work will officially commence. Consultation, purchasing of domains and other preemptive work does not necessary mean your project has started in earnest. The project will be run according to SPATS Limited ‘s Project Process and is likely to take approximately 6 weeks from the official start date.
SPATS Limited will only commence work in earnest once the following has been completed:
- All content is supplied; all text, contact information, logos, designs, photographs, graphics and related materials… to be incorporated into the project are ‘ready for publication’ and have been digitally provided, or as otherwise agreed in the proposal.
Ready for Publication means, SPATS Limited is not responsible for editing, spelling or grammar. SPATS Limited can provide these services along with a content writer at additional expense to the Client, if requested to do so.
- Payment of a non-refundable deposit of $1,500+gst . Prompt payment may result in preferential treatment as we often have several projects in discussion at any time; projects are prioritised based on the clients commitment to undertaking a project, prompt payment is a consideration.
- Progress according to the proposal deliverable dates; these dates will be pushed out according to any delay caused by the client or their agents.
Any material supplied after the content requirement date or changes needing to be made to content after this date will incur additional charges.
If the Client is responsible for withholding material or information for completion of the project 42 days from the initial start date in the proposal, the website is then deemed payable in full whether the project is online, signed off, or not.
8.0 Acceptance Testing and sign off
The deliverables will be tested in accordance with the proposal. If during the project process you request additional or changed functionality/content from the deliverables outlined in the specifications of the proposal, then SPATS Limited will provide a time plus materials quote which will be charged in addition to the quoted cost of the project.
All material, both text and images, 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 client will indemnify and protect SPATS Limited should any claim arise.
10.0 Intellectual property (IP)
All intellectual property rights associated with the project including but not limited to; source code, keyword selection, SEO strategy’s, website promotion, advertising campaigns, remain the property of SPATS Limited. The client will be granted a non-exclusive license to use the aforementioned IP for the term of the agreement.
The Client, or their agents may not copy, move, emulate or replicate any part or parts of the website or its optimisation whatsoever without the written permission of SPATS Limited. The Client agrees they can not claim any beneficial rights or interest through contracting or the engagement of SPATS Limited, or for any services provided.
The client may be given access to the source code and passwords for the purposes of transferring, maintaining or extending the website, supplying or access to the code does not transfer ownership, nor does the Client being charged for any medium (CD-Rom, DVD, USB or Flash drive) the coding may be provided on.
11.0 Additional work
SPATS Limited reserves the right to charge for any additional work not specified in the proposal at a rate of $120+gst per hour, including but not limited to; any time required in chasing up content from the Client or content writer, meetings called by the Client, phone calls, replying to emails or other such time that is taken-up by the client for the purpose of the project.
12.0 GST and Exchange rate fluctuations
All prices are quoted exclusive of GST. GST is payable by New Zealand residents, this cost does not apply to overseas domain purchases or hosting.
SPATS Limited reserves the right to make price adjustments due to exchange rate fluctuations for such services as but not limited to: domains, hosting, adwords, and other marketing or promotions undertaken for the clients benefit.
13.0 Electronic Commerce Laws
The client agrees that the client is solely responsible for complying with such laws, taxes and tariffs, and will hold harmless, protect, and defend SPATS Limited and its subcontractors from any claim, suit, penalty, tax or tariff arising from the client’s exercise of Internet electronic commerce.
14.0 Terms of payment and delinquent accounts
Only after the client has ‘signed off’ will the project be published or “put online”. Payment(s) shall be due within 7 days, of the date of issue of any invoice, unless otherwise arranged and confirmed by SPATS Limited by email.
Late payments incur an additional $30 processing fee and will incur penalty interest at the rate of 10% per month.
SPATS Limited reserves the right to refuse to finish or conduct any further work at its discretion if the Client does not respond in a timely manner (within 48 hours) to emails or phone calls and within 7 days for requests for ‘content’, or in the event that the Clients account is delinquent by 30 days. The project will be considered abandoned by the client after 60 days in delinquency.
If we are forced to hand your account over to a debt collection agency for collection you will be liable for any collection costs and legal fees incurred.
15.0 Restriction or removal of services
SPATS Limited reserves the right to cease, restrict or remove services without notice and without liability if the Client breaches any part of this agreement. Including but not limited to; if the Client uses any of the services provided for any activity that SPATS Limited deems offensive, or for any activity that maybe illegal under New Zealand Law. Additionally action may be taken if the Clients account becomes delinquent for any reason.
A notice as to why services have been restricted or removed may be provided/posted on the project website and a corresponding message may be sent in replay to any email sent to the effected domains by way of an auto-responder.
SPATS Limited provides maintenance services for its clients; however, any maintenance or updates are outside the scope of a design project and will be charged to the Client on an hourly basis in the absence of a maintenance agreement.
17.0 Assignment and Delegation
SPATS Limited may assign or transfer our rights and responsibilities under this contract to another party. We may also subcontract the performance of any of our responsibilities under this contract to another party.
The Client may not assign or transfer any of your rights or responsibilities under this contract to anyone else without our prior written consent.
The Client agrees that SPATS Limited 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 SPATS Limited may have been notified of such damage or claims.
SPATS Limited 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 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 (including malfunction of Web site/Software or Internet), or for any content submitted by you for publication by us.
If, despite the other provisions of this agreement, SPATS Limited is found to be liable to you then its liability for any single event or series of related events is limited to the fees.
19.0 Applicable Law
Acquiring services for the purpose of a business is not covered by the Consumers Guarantee Act 1993, business’s are covered by the Contracts Enforcement Act 1956 and Contract Remedies Act. 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.
20.0 Non Waiver
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.
21.0 Termination or cancellation
The Client will not take possession of any work, code or material – other than items provided to SPATS Limited for the project; such as CD-ROM’s, Data Disc’s or Flash Drives in the event of termination. All work is undertaken as a ‘service’ using professional skills. The Client will not receive any hard copy of work; all work will be provided online on the agreed host server for the term of this agreement.
A Client’s desire for termination must be submitted in writing no later than 40 days before the anniversary of the start date in the proposal. If no written termination request is received before the specified time, this agreement will automatically be renewed (or rolled-over) at the end of each term for a further term.
Termination or cancellation can not be used to absolve, reduce or remove the Clients obligations or responsibilities of this agreement, or used to avoid payment or avoid penalty interest by way of discharging of this agreement before outstanding accounts have been settled. SPATS Limited retains a lein and possession of administration control over the listed domains until such time as all accounts are paid in full.
The client will be libel for all expenses incurred by SPATS Limited in enforcing any interference with contractual relations or breach of contract.
The client agrees to honour all IP rights (as provided above or enforceable under New Zealand law) of SPATS Limited in perpetuity. SPATS Limited does not waive these rights in agreeing to termination or cancellation, or in discharging this agreement.
Handover is the official acknowledgment that the client’s project is completed or control of the domain(s) has been passed to the Client; only after ‘handover’ will the client be able to use another administrator/web developer in anyway without violation of this agreement and interference with contractual relations. Handover will only be considered as having been given to the client when it is confirmed in writing.
These Terms and Conditions may be updated from time to time, the current version will be available online at www.spats.co.nz