Jam88 will endeavour to operate in a fair and reasonable manner at all times and it is part of our ethos to ensure we maintain a great relationship with our clients. It is, however, important to have certain contractual aspects agreed in order to protect both parties. By undertaking a Web site design project with Jam88 you are agreeing to the following terms and conditions.
1. Relationship of the Parties
1.1 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.
2. Project Process
2.1 Jam88 cannot always guarantee to start work immediately on a project but will arrange a date with the client as to when work can commence. Please note that Jam88 during the Christmas and New Year period has a Service Brown Out period, which means that during this time, we will not be taking any sites live and doing any development work, and will only have a skeleton staff running.
2.2 The project will be run according to Jam88 ‘s Project Process. This process will be provided to you with your contract.
2.3 If Jam88 has produced a proposal document for the project then Jam88 will commence work once, provided you supply us with:
a) Final data, information, logos, designs, graphic and related materials to be incorporated into the Web solution ready for publication, prior to the design call. Any further material supplied at a later date may incur an additional charge.
b) Pay the 50% deposit prior to the design call
c) Where applicable comply with all the terms of the Web Hosting Terms and Conditions.
d) Where applicable comply with all the terms of the Domain Terms and Conditions.
e) Should you decide to make design changes once the concept has been signed off then Jam88 may quote for an additional charge.
2.3 During the Web Site Development Cycle Jam88 may at intervals place versions of the client’s Web site on one of Jam88 ‘s demonstration servers so that the client may view and comment upon the Web site’s progress, and approve design concepts and prototypes. When both Jam88 and the client 2 | Page agree that the Web site meets the criteria agreed during the projecting process, Jam88 will invoice the client for the remainder of the amount due for the project. At Jam88’s discretion, Jam88 may choose to delay publishing some clients Web sites until full payment for the Web design project has been received.
3. Acceptance Testing
3.1 You will conduct the acceptance tests on the deliverables within 2 weeks of installation to ensure that they perform in accordance with the proposal. If a deliverable does not pass the acceptance test, we will correct the failure. You will then repeat the acceptance test. Such processes shall continue until the relevant deliverable passes the acceptance test.
3.2 If during the project process you request additional or changed functionality/content from the deliverables outlined in the specification or proposal, then Jam88 will provide a time plus materials quote which will be in addition to the cost of the Web project.
3.3 The Web Solution will be designed and tested to operate with the following PC browsers: Internet Explorer, Chrome, Firefox, Safari and Opera.
4.1 All material, both text and images, supplied by the client and used in the construction of the client’s Web site, 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.
4.2 The copyright for all material provided by Jam88, such as HTML code, graphics, photographs and text, but excluding software code, will remain the property of Jam88 until such time as Jam88 receives full payment whereupon they will become the property of the client.
4.3 The client will be granted a single use, single site, source code license to the software code. The client may not sell or redistribute the software code (unless such prior arrangements were made between the parties). The client may not use the software code in more than one installation. The client will be given access to the source code and may take the code to another developer for purposes of maintaining or extending upon the system.
4.4 The parties acknowledge that Jam88 may accept jobs from other clients to develop Web solutions with the same or similar functionality to the Web solution provided to you, and that Jam88 may replicate and exploit all techniques, structures, designs and individual modules of program code used in the creation of the Web solution.
5.1 All prices are quoted exclusive of GST. GST is payable by New Zealand residents for work done in New Zealand, this cost does not apply to overseas orders.
6. Terms of Payment
6.1 An invoice for 50% of the price for the project will be provided on acceptance of the proposal. This invoice is strictly Cash on Delivery (COD) and must be paid before the project can commence.
6.2 Once the project concept design is completed and approved by the client a further 25% will be invoiced. Payment for this invoice is strictly Cash on Delivery (COD), unless otherwise arranged. Once the project is complete and approved by the client the final 25% will be invoiced. Payment for this invoice is strictly Cash on Delivery (COD), unless otherwise arranged.
6.3 If you are responsible for withholding information for completion or delaying the project, the website is then deemed payable in full after 90 days from project stall date.
6.4 If we are forced to hand your account over to a debt collection agency for collection you will be liable for any collection costs incurred.
7.1 Jam88 provides maintenance services for its clients; however any maintenance or updates are outside the scope of the design project. When updates are required, Jam88 will provide time and materials based quotes for this work. If a Web site development agreement has been signed then clauses relating to support services will be applicable.
8. Validity of the Agreement
8.1 Either party may terminate the agreement on 10 working days’ written notice to the other party.
8.2 Jam88 reserves the right to cease immediately without liability to provide the service and to terminate this agreement if you should go into liquidation or bankruptcy, or if you fail to meet any obligation in accordance with this agreement.
8.3 If at any point during the Web Site Development Cycle a client wishes to cancel, they may do so but will be invoiced an amount that Jam88 judges to be proportional to the amount of work completed on the project.
8.4 If the total amount of work completed equals less than the 50% deposit paid by the client, Jam88 will refund the portion of payment not used. If the total amount of work completed is more than the first 50% invoiced, Jam88 has the right to invoice the extra hours completed.
9. Assignment and Delegation
9.1 We may assign or transfer our rights and responsibilities under this contract to another party.
9.2 We may also subcontract the performance of any of our responsibilities under this contract to another party. You may not assign or transfer any of your rights or responsibilities under this contract to anyone else without our prior written consent.
10.1 You agree that Jam88 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 Jam88 may have been notified of such damage or claims.
10.2 We shall not be liable to you 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.
10.3 You agree 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 us to you 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.
10.4 If, despite the other provisions of this agreement, Jam88 is found to be liable to you then its liability for any single event or series of related events is limited to the fees.
10.5 Due to the public nature of the Internet, all material submitted by you for publication will be considered publicly accessible. Jam88 does not screen in advance customer material submitted to Jam88 for publication. Jam88’s publication of material submitted by customers does not create any express or implied approval by Jam88 of such material, nor does it indicate that such material complies with the terms of this agreement.
11. Applicable Law
11.1 The Consumer Guarantees Act 1993 may apply to any services we provide to you if you acquire these services for personal, domestic or household use. If this act applies, all rights you may have under it apply in addition to the rights you may have in this agreement. Nothing in this agreement will limit or exclude your rights under this act.
11.2 Where you acquire or hold yourself out as acquiring our services for the purpose of a business, then you agree that the provisions of the Consumers Guarantee Act 1993 will not apply to our service or the provision of any other services to you. 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.
12. Non Solicitation
12.1 During the term of this agreement or time and material engagement and for six months after expiration or termination of this Agreement or time and material engagement (“Restraint Period”), neither party will solicit for employment or engagement either directly or indirectly any person who is employed or contracted by the other party.
12.2 Each party will promptly advise the other if an employee or contractor of a party seeks to be employed or contracted by the other party prior to the Restraint Period expiring.
12.3 If the party directly employs or directly contracts with any employee of the other party (“staff member”) during the Restraint Period, such party will, upon such employment or entering into any agreement for the engagement of that staff member pay such other party and amount equal to 100% of the staff member’s annual remuneration based upon the salary paid to them by such other party, as well as reimburse any replacement recruitment costs and losses incurred through loss of the staff member.
13. Non Waiver
13.1 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.
14. Debt Recovery
14 Debt recovery proceedings will be instituted against the contracting party and the guarantor should fees due and liable not be paid in full and on time. No setoff or discounts shall be allowed and no amount shall be withheld.
14.1 Your credit rating may be affected should recovery action be taken against you.
15.1 The domain name and site contents shall remain the propertu of Jam88 for 12 months fom the signing of the contract.
15.2 After the contract period has ended, the client may, at the client’s expense, remove their site to another host and take ownership of the domain name. All costs and actions will be for the client to undertake. Jam88 will not impede the process in any way. A grace period of 10 days shall apply at the end of the contract to enable this to happen. At the expiration of the grace period, the site will be removed from the server and will not be recoverable directly.
15.3 Recovery from a backup or providing a copy of a backup can be undertaken for an hourly rate.