WEBSITE DEVELOPMENT TERMS
This Website Development Hosting Agreement (“Agreement”) is between Pepper Marketing Limited whose mailing address is at 150 Monarch-Downs Way, RD2 Warkworth, Auckland 0982 (“Pepper Marketing”) and the Customer (“You”).
1.1. When these terms apply. Except where we have expressly stated otherwise in writing, these Terms and Conditions apply to the supply of all services, and related documentation, materials and software that Pepper Marketing provides or makes available to you anytime whether now or in the future.
1.2. The components of this Agreement. This Agreement comprises the following which, in and to the extent of any conflict or inconsistency, shall be interpreted in the following descending order of priority (from high priority to low priority):
a. these Terms and Conditions;
b. the Schedules;
c. the Order Form; and
d. the relevant components of the Service Description.
1.3. Changes to the Agreement. From time to time, Pepper Marketing may change the terms of the Agreement (including the Charges and payment terms) or issue additional terms.
1.4. Definitions. In this Agreement:
a. “Charges” means the charges payable for the provision of the Services as set out in the Order Form;
b. “Effective Date” means the later date of execution of this Agreement;
c. “Pepper Marketing Website” means www.peppermarketing.co.nz;
d. “Order Form” means the Pepper Marketing Order Form you signed;
e. “Related Parties” means Pepper Marketing’s suppliers, directors, employees, contractors and agents;
f. “Services” means the Services selected by you on the Order Form (which may include development, consultancy, hosting, support, training, and the provision of Your Website) to be provided on the terms of this Agreement;
g. “Service Description” means the document(s) describing the Services as supplied to you by Pepper Marketing, and as amended or replaced from time to time by Pepper Marketing;
h. “Terms and Conditions” means clauses 0 to 10 of this document (inclusive);
i. “Your Content” means all text, images, branding (including trademarks or names, logos, and colour schemes), data and information that you provide to Pepper Marketing, upload or transmit to or via the Services, or that is created by your use of the Services; and
j. “Your Website” means the website, populated with Your Content, that Pepper Marketing will make available on the Internet on your behalf, as part of the Services in accordance with this Agreement.
2. SERVICE PROVISION
2.1. Term. In return for your payment of the Charges and subject to the terms of this Agreement, Pepper Marketing will provide the Services set out in the Order Form to you for an initial thirty six (36) month period from the Effective Date (“Initial Term”). At the end of the Initial Term, this Agreement will automatically be renewed for additional twelve (12) month periods “Additional Term(s)”, unless written notice is given to Pepper Marketing at least thirty (30) days’ prior to the expiration of the Initial Period or Additional Term(s) (the Initial Term and any Additional Term(s) are known collectively as the “Term”).
2.2. Service levels. If the Service Description contains any levels of performance or service in relation to the Services these are targets only and Pepper Marketing is responsible only for using its reasonable endeavours to meet those targets.
2.3. Support. If Pepper Marketing provides you with any support or remedial services under this Agreement it will, subject to its reasonable endeavours (without incurring any material additional costs), try and resolve any problems with the Services but does not guarantee or represent that it can fix any problem that you may experience.
2.4. Excluded support. Pepper Marketing is not obliged to provide you with support or remedial services if the problem you are experiencing cannot be reproduced or is caused by:
a. any software, services or hardware that Pepper Marketing has not supplied; or
b. your negligence, misuse of the Services, or failure to comply with this Agreement.
c. you not having updated your software as per licensee’s recommendations.
2.5. Additional work. If you wish Pepper Marketing to perform any service which is not part of the Services (including any additional time customising Your Website), Pepper Marketing may perform that service at its sole discretion, in which case Pepper Marketing is entitled to additional charges, at its then standard rates. All additional charges must be paid by you on the same payment terms as are set out in clause 5.4.
2.6. Client training and support. Client training and support is limited to editor content management access only. Pepper Marketing unless it chooses to do so, shall not provide admin access support, template changes or coding changes as part of ongoing support.
2.7. Changes and upgrades. Pepper Marketing may at any time, at its sole discretion, make changes to the Services, including to the functionality and/or carry out updates which sometimes may affect the look-and-feel of Your Website.
2.8. Support, certificates, guarantee and warranty. Any support, certificates, guarantee or warranty offered by Pepper Marketing is conditional upon the client hosting their website with Pepper Marketing. Support, guarantee, certificates and warranty does not apply to websites hosted by clients using another service provider.
3. LICENCE TO USE THE SERVICES
3.1. Grant. Pepper Marketing grants you a non-exclusive, transferable licence where applicable to use the Services solely for your normal business purposes and subject to the terms of this Agreement.
3.2. Use by contractors and employees. You may permit your employees and contractors to use the Services in a manner that is consistent with this Agreement. You are responsible and liable for the acts and omissions of your employees and contractors in relation to their use of the Services.
3.3. Licence restrictions. The licence granted to you in clause 3.1 is personal to you and you are not permitted to assign, transfer, sublicense, resell, make available to any person (other than as permitted under clause 3.2) or otherwise dispose of any component of the Services. Despite clauses 3.1 and 3.2, unless Pepper Marketing have specifically agreed otherwise in writing, no licence is given to use Services to develop any products or services that will be sold or commercialised by you or anyone else, or that will compete with Pepper Marketing’s products or services.
4. YOUR OBLIGATIONS
4.1. Your obligations.
a. You must use the Services only for lawful purposes and in accordance with this Agreement;
b. You must comply in every respect with all the instructions and policies which Pepper Marketing provides to you concerning the Services;
c. You must comply with all relevant laws and regulations.
d. You agree that it is your responsibility to provide necessary information and feedback when requested to do so about your project in a timely manner.
a. You must not sell or display content on Your Website that is illegal;
b. You must not put defamatory statements on Your Website;
c. You must not infringe anyone else’s intellectual property rights;
d. You must not breach anyone else’s legal rights;
e. You must not do anything that would interfere with the normal operation of Your Website, the Pepper Marketing Website, the websites of Pepper Marketing’s other customers, or the Services.
4.3. Your hardware and software. It is your responsibility to ensure that you have the hardware, software (including the appropriate licences), and related services (for example, an internet connection) necessary to receive the benefit of the Services.
4.4. Backups. You must keep and maintain your own copies and backups of Your Content as is necessary to quickly and accurately replace or repair any of Your Content that is lost or damaged from any cause.
4.5. Your Content. You acknowledge that you are responsible for Your Content and its use by any person, and that Pepper Marketing has no responsibility or liability for Your Content or its use. You warrant at all times that Your Content does not infringe the rights of any person (including intellectual property rights), is not offensive, defamatory, harmful, upsetting, unlawful, or otherwise objectionable.
4.6. Design credit. You agree that Pepper Marketing may:
a. include a by-line and/or a hyperlinks to the Pepper Marketing Website in any page (or equivalent) of Your Website, crediting the design, development and or hosting of the website to Pepper Marketing; and include a Pepper Marketing favicon and
b. make public a marketing case study relating to the Services it supplies to you, and list you and your logo on Pepper Marketing’s marketing material, including on the Pepper Marketing Website.
4.7. Domain names. You acknowledge that you are responsible for securing and maintaining the registration of your preferred domain name.
4.8. Breach. If you are in breach of any of your obligations in this Agreement, then, without prejudice to any other right or remedy of Pepper Marketing, Pepper Marketing will be entitled to charge you for staff time engaged on rectifying any resulting problems at Pepper Marketing’s then current rates.
4.9. Indemnity. Without limiting any other right or remedy of Pepper Marketing, You agree to fully indemnify and keep indemnified Pepper Marketing, and Pepper Marketing’s Related Parties against all claims, proceedings, actions, liabilities, damages, losses, costs and expenses (including full legal costs) arising out of or in any way connected to your business or your use, or anyone else’s use, of Your Website, and/or the Services, any breach by you of this Agreement, or anything else you do or do not do in relation to Your Website (in each case a “Claim”). This includes any Claim that arises because of any problem with the Services or Your Website
4.10. Hosting. You agree to be bound by the terms of the hosting company used by Pepper Marketing (see 7.6). Unless you elect in writing at time of proposal your website will be hosted under a Pepper Marketing account. Clients hosting their own website will be provided with web files to upload themselves. Migration is not the responsibility of Pepper Marketing and ongoing support is provided at time and resources. Any costs incurred by Pepper Marketing in supplying client website files will be transferred to and paid by the client.
5.1. Payment. You will pay Pepper Marketing the Charges for the Services at the rates and on the terms set out in clause 5.4 and on the Order Form. All Charges are exclusive of GST.
5.2. Customer number. It is your responsibility to reference your customer number when paying an invoice for the Charges. If you do not reference your customer number then the relevant invoice may at Pepper Marketing’s sole discretion be considered unpaid for the purposes of clause 5.4 until you are able to demonstrate proof of your payment to our reasonable satisfaction.
5.3. Additional costs. Pepper Marketing may, when agreed by the parties, perform services that are beyond the scope of this Agreement. Unless otherwise agreed in writing, you must pay additional charges at Pepper Marketing’s then current rates in accordance with the payment terms set out in clause 5.4.
5.4. Payment terms. All invoices are payable on the due date as per the invoice issued to you by Pepper Marketing. If you do not pay by the due date you will, if asked by Pepper Marketing: (a) pay an initial late payment fee of 5%, then pay interest on the amount due from the due date for payment until full payment (including interest) at the rate of 2% above the overdraft interest rate charged by Pepper Marketing’s primary bank; and (b) pay all expenses (including legal costs on a solicitor-client basis) incurred by anyone in the recovery of any monies that you owe to Pepper Marketing.
5.5. Subscription payments. You agree to make all monthly subscription payments for hosting and or support by way of direct debit on or before the due date. Any payments made in advance are non-refundable and all sales are final.
5.6. Project information. In consideration of clause 4.1.d. If you do not provide said information within 10 working days of the initial request, that can be used to advance the project, Pepper Marketing at their discretion may deem the project complete, and seek final payment for the entire project.
5.7. Restricted access. Unless otherwise agreed to in writing an editor-only role will be provided to your website until the total sum of the web design and development cost (as per the proposal or the sum owed if the scope is later altered) is paid in full including any other charges.
5.8. Disable website. If you do not pay any account by the due date, you irrevocably agree to allow Pepper Marketing to disable your website and place a notice on the site saying ‘out of service, account overdue’ until such time all accounts are paid in full.
6. INTELLECTUAL PROPERTY (“IP”)
6.1. Pepper Marketing IP. Pepper Marketing and/or its third party providers (as the case may be) own all rights (including IP rights) title and interest in and to the Services, documentation, materials, know how, ideas or concepts supplied or made available to you under or in relation to this Agreement (collectively called “Pepper Marketing IP”). All: (a) new IP created by or on behalf of Pepper Marketing under or in relation to this Agreement; and (b) modifications, adaptations, developments or improvements to any Pepper Marketing IP created by either party under or in relation to this Agreement, shall, as it is created, become the sole and exclusive property of Pepper Marketing. You shall do all acts and things that are reasonably necessary to give effect to this clause 6.
6.2. Your Content. Subject to clause 6.1, the IP rights in Your Content remain with you and/or your providers (as the case may be). You grant, and must ensure that all relevant third parties grant, to Pepper Marketing, at no charge, a licence to use, analyse, modify, adapt, develop and display Your Content, and grant sublicenses of any of those rights to other persons, for:
a. any purpose related to this Agreement, including to enable Pepper Marketing and its suppliers to provide the Services; and/or
b. any purpose for which you supplied Your Content to Pepper Marketing.
6.3. Know how. Notwithstanding clause 6.2, Pepper Marketing may freely use in any way any ideas, concepts, know-how or techniques which it learns from you or your providers as a consequence of providing the Services, provided that such use does not breach clause 10.2 (Confidentiality).
6.4. Rights, title or interest. Other than as set out in these Terms and Conditions neither party obtains under this Agreement any rights, title or interest in any of the other party’s, or any third party’s, intellectual property.
7. WARRANTIES AND DISCLAIMERS
7.1. Pepper Marketing’s warranty. Pepper Marketing warrants that it will use reasonable endeavours to ensure that the Services will remain in substantial conformance with the Service Description.
7.2. Nature of the Services. Because of the nature of the Services, the Internet, and the involvement of third parties, Pepper Marketing cannot always control access to or the quality of Your Website, or the Services. Also, at times a Service may be unavailable so that maintenance or other work can be carried out. Therefore, in supplying the Services Pepper Marketing does not represent or warrant that:
a. they will be completely secure (even when Pepper Marketing supplies security related services); uninterrupted or error free; or always accessible or available (including at a certain level or charge); or
b. all problems can or will be corrected.
7.3. Third party services. Further, you acknowledge and agree that the actions or inactions of third parties may also have a detrimental effect on the Services you receive, and that Pepper Marketing is not liable or responsible for such effects. Furthermore, Pepper Marketing is not responsible for any websites, services or products that you may use to conduct the operation of your site as may be recommended by Pepper Marketing including but not limited to Merchant Services Google tools, Mail Chimp and PayPal. Any fees or charges from these websites or businesses are your responsibility.
7.4. Loss or damage to Your Content. While Pepper Marketing will endeavour to avoid damaging or losing Your Content when performing the Services, Pepper Marketing does not promise or represent that Your Content will never be lost or damaged in the provision of the Services. However, should Pepper Marketing be solely responsible for the loss of, or damage to, Your Content, Pepper Marketing will assist with the republishing of Your Content on Your Website at no additional cost, provided you provide us with copies of Your Content (see clause 4.4).
7.5. Third party software. Sometimes in providing you with Services Pepper Marketing will supply, make available, use or recommend to you products, services, software, documentation or information that are not Pepper Marketing’s (“Third Party Products”). For example, Pepper Marketing might supply or make available to you some third party software (including patches), or use a third party service provider when providing you with hosting services. However, because Pepper Marketing didn’t design and doesn’t fully control these Third Party Products it does not take any responsibility or liability (however arising) for any Third Party Products (including their suitability, compatibility, quality, availability, timeliness and freedom from harmful things such as viruses).
7.6. Extra Terms. The providers of Third Party Products may require you to comply with their terms and conditions (“Extra Terms”). These Extra Terms are either freely available or Pepper Marketing will make them available to you. You agree to abide by the Extra Terms.
7.7. Third party warranties. The providers of Third Party Products may give their own warranties and remedies. If there is any problem with any Third Party Products you agree to pursue a remedy solely against that provider and not Pepper Marketing.
7.8. Consumer Guarantees Act. You are acquiring the Services for the purposes of a business and accordingly the provisions of the Consumers Guarantees Act 1993 do not apply.
7.9. Excluded warranties. Except as set out in this Agreement, all representations and warranties, express or implied, are excluded to the maximum extent allowed by law.
8. LIMITATION OF LIABILITY
8.1. Pepper Marketing and its Related Parties will not be liable to you, or any third party, for any:
a. loss or damage to information or data from any cause;
b. breach of security or privacy;
c. loss of profit, opportunity or saving;
d. delay or failure in the supply of Your Website;
e. lapse in, or cancellation of, the registration of your domain name; or
f. incidental, indirect, special or consequential loss or damage.
2. In any event, if Pepper Marketing or its Related Parties are liable to you for any reason, and that liability has not otherwise been excluded by this Agreement, then the maximum aggregate liability of Pepper Marketing and its Related Parties to you arising out of all claims for loss and/or damages under or in relation to this Agreement for any cause will under no circumstances exceed the value of the fees paid by you to Pepper Marketing in the 12 months prior to the time that any liability first arises.
3. The limitations and exclusions of liability in this Agreement shall apply however liability arises, whether in contract, tort (including negligence), breach of statutory duty or otherwise.
4. Pepper Marketing will not be responsible or liable for any failure or delay to perform its obligations due to any event, circumstance or person beyond its reasonable control or any failure by you to perform any of your obligations under this Agreement. In such circumstances, and without limiting any other right or remedy of Pepper Marketing, Pepper Marketing is entitled to recover from you any reasonable additional costs of fulfilling its obligations under this Agreement.
9. SUSPENSION AND TERMINATION
9.1. Right to suspend Service. Pepper Marketing is entitled to restrict or suspend all or any part of the Services immediately if: (a) deemed reasonably necessary by Pepper Marketing in order to protect the proper interests of Pepper Marketing or of its other customers; (b) you are behind in any payment of Pepper Marketing’s Charges; or (c) you are in breach of this Agreement. If practicable and depending on the nature of the reason for such restriction or suspension, Pepper Marketing may, in its absolute discretion, give you an opportunity to remedy the situation. In such case, if you remedy the situation, Pepper Marketing will promptly restore the Services at your cost. During any period of restriction or suspension you are still obligated to pay Pepper Marketing’s Charges on the terms set out in clause 5.4 (Payment terms) and reinstallation costs if any. This right of restriction and suspension is in addition to, and does not prejudice, any other right or remedy that Pepper Marketing may have under or in relation to this Agreement.
9.2. Pepper Marketing’s right to terminate immediately. Pepper Marketing may terminate all or any part of this Agreement immediately by notice in writing if:
a. any Charges owing to Pepper Marketing are overdue by more than 20 working days;
b. you or anyone under your control is in breach of clause 3 (Licence to Use the Services); or
c. you are in material breach of this Agreement.
9.3. Pepper Marketing’s right to terminate for convenience. Pepper Marketing may terminate this Agreement at any time by giving you 3 months’ prior written notice.
9.4. Your right to terminate for non-acceptance. If you do not accept Your Website in accordance with clause 2.2, you may terminate this Agreement immediately by giving written notice to Pepper Marketing.
9.5. Right to terminate on liquidation etc. Either party may terminate this Agreement by providing written notice to the other party if the other party has entered into receivership, liquidation or bankruptcy, or has entered into a compromise or composition with its creditors.
9.6. Payment on termination. If Pepper Marketing becomes entitled to terminate this Agreement for any reason, any sums then due to Pepper Marketing will immediately become payable in full.
9.7. Effect of termination
a. Termination or cancellation of this Agreement shall not relieve either party from any right, liability, or claim that has accrued before the date of termination or cancellation; or
b. Termination or cancellation of this Agreement shall not affect the provisions of this Agreement which expressly, or by their nature, survive termination or cancellation (including clauses 7.4 (Third party software), 7.5 (Extra Terms), 4.9 (Indemnity), 6 (Intellectual Property), 8 (Limitation of Liability), 9 (Suspension and Termination), 10 (General).
c. You must make available to Pepper Marketing in substantially as good condition as when received, any goods, files, folders, manuals, and any documentation delivered to you under this Agreement and to comply with the instructions of Pepper Marketing regarding their return at your expense.
d. Should you cancel this Agreement after the Acceptance Date and during the Term (except in accordance with clause 9.5 above) you will be liable to pay Pepper Marketing the Charges that would have been paid by you until the end of the Term.
9.8. Your Website on termination. In the event of termination for any reason, Your Website will be permanently deleted and will no longer be made accessible on the Internet by Pepper Marketing. Pepper Marketing will delete Your Content within a reasonable period (usually 90 days). However, on request by you and provided you have paid all Charges owing to Pepper Marketing, Pepper Marketing will use its reasonable endeavours to supply you with Your Content at your own cost (such costs will not apply in the event that Pepper Marketing goes into liquidation, receivership or bankruptcy).
9.9. You agree not to engage directly or indirectly independently of Pepper Marketing any employee, staff or contractor paid or employed by Pepper Marketing in website services without prior written consent. Should you breach this term you agree to pay 50% of any sum paid to that party as compensation for the term you engage them for a period of up to 24 months from the initial breech or $1,500.00.
10.1. Disputes. The parties will initially try to resolve by negotiation any dispute arising between them in relation to this Agreement. If the parties cannot resolve the dispute by negotiation, they will try to resolve it by mediation before resorting to arbitration. Either party may initiate mediation by giving written notice to the other (“Notice to Mediate”). Both parties must agree on the mediator, but if the parties cannot agree then the mediator will be selected by LEADR New Zealand Incorporated (Lawyers Engaged in Alternative Dispute Resolution) or its successor. Before the mediation starts, both parties and the mediator must sign a mediation agreement in a form agreed by all parties (such agreement not to be unreasonably withheld). If dispute is not resolved within 30 days of the Notice to Mediate, either party may require the dispute to be resolved by arbitration under the Arbitration Act 1996 (excluding clauses 4 and 5 of the Second Schedule to that Act) to be held at Wellington. Both parties will proceed expeditiously to undertake the arbitration. The award in the arbitration will be final and binding. Neither party may resort to legal proceedings (except where that party seeks urgent interlocutory relief) unless it has taken all reasonable steps to comply with this clause 10.1.
10.2. Confidentiality. Each party will keep confidential all information obtained from the other party, in any form, that is confidential in nature, or expressed to be confidential, (“Confidential Information”), and will not disclose that information to a third party, nor use that information other than for the purposes of this Agreement, without the consent of the other party. Confidential Information includes this Agreement. Each party shall ensure that its employees, subcontractors and agents abide by these obligations of confidentiality. A party is not required to comply with this clause 10.2 to the extent that the Confidential Information: is clearly required to be disclosed by law; was already in that party’s possession at the time the Confidential Information was obtained from the other party; is generally known and available by the public without that party having breached its obligations under this clause; was disclosed to it by a third party who has the right to make such disclosure; or has been independently developed without the benefit or use of the other party’s Confidential Information. Nothing in this clause 10.2 shall prevent a party from exercising or enjoying the rights to intellectual property that it owns, or is granted, under clause 6 (Intellectual Property).
10.3. Subcontracting etc. You may only subcontract or assign any of your rights or obligations under this Agreement with the prior written consent of Pepper Marketing, which Pepper Marketing will not unreasonably withhold. Pepper Marketing may subcontract or assign all or any part of its rights or obligations under this Agreement on written notice to you.
10.4. Variations. Any variation to this Agreement will only be effective if it is effected under clause 1.3 or is otherwise agreed in writing and signed by the General Manager (or equivalent) of Pepper Marketing or published on the Pepper Marketing Website. It is your obligation to ensure that you have read, understood and agree to the most recent terms available on the Pepper Marketing Website.
10.5. Notices. Unless otherwise specified in this Agreement, any notice given under this Agreement must be in writing and delivered by fax or pre-paid post to the addresses on the Order Form or to any other address notified in writing by either party to the other for the purpose of receiving notices.
10.6. Contact. You give permission to Pepper Marketing to send from time to time information that Pepper Marketing believes may be of interest to you by electronic means or by physical mail.
10.7. Interpretation. In this Agreement, words in the singular number include the plural, and vice versa. Any examples in this Agreement, and references to “including” and similar words, do not imply any limitations. Headings are for ease of reference only and shall not affect the interpretation of this Agreement.
10.8. Definitions. Unless otherwise expressly stated in this Agreement, terms defined anywhere in this Agreement shall have the defined meaning throughout this Agreement.
10.9. Relationship of the parties. Nothing expressed or implied in this Agreement will be deemed to constitute either party as the partner or agent of, or in a joint venture with, the other party.
10.10. Entire Agreement. This Agreement and any associated Order Forms constitute the entire agreement of the parties with respect to its subject matter and supersedes all previous agreements, arrangements, understandings or representations relating to that subject matter and any additional or different terms that you may provide to Pepper Marketing. A waiver of any of the terms of this Agreement must be in writing and signed by a Director (or equivalent) of Pepper Marketing.
10.11. Severability. If any one or more of the provisions of this Agreement will be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not in any way be affected, prejudiced or impaired.
10.12. Law. This Agreement is governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts.