TKO Design Limited: Terms of Trade
Last Updated 22 Feb 2010
1.0 Application
1.1 These Terms of Trade (Terms) cover the business activities of TKO Design Limited (TKO) and the conditions of doing business with TKO. By employing the services, or requesting work, of TKO Design Limited you are agreeing to these Terms of Trade. If you do not agree to these Terms please contact us immediately and discontinue the use of any of TKO's products and/or services.
2.0 Definitions
2.1 "TKO" and "We" shall mean TKO Design Limited or any agents or employees thereof.
2.2 "Client" and "You" and "Your" shall mean the client, any person acting on behalf of and with the authority of the client, or any person purchasing goods or services from TKO.
2.3 "Goods" shall mean all materials, print work, web products, Content Management System, Client Relationship Manager, html, CSS, source code and all pre-packaged services sold as a commodity.
2.4 "Services" shall include without limitation the provision of all Internet consulting, creative concepts, design, Web site development, web and mail hosting, search engine optimisation, live media streaming, print management services, all charges for labour, hire charges, insurance and support charges, and any fee or charge associated with the supply of services by TKO to the client.
2.5 "Price" shall mean the cost of the goods or services as agreed between TKO and the client subject to clause 4 of these terms and conditions of trade.
2.6 "Hosting" is the rental of space on a server (computer connected to the Internet with web application serving capability) provided to the client for the operation of web applications.
2.7 "Royalty" and "Licence" is the fee charged and the use limitations on a product sold by TKO to the client.
2.8 "Copy" shall mean all text to be included in a document either printed or electronic.
2.9 "Source Code" shall mean all files needed to convert information from human-readable form to some kind of computer-executable form.
2.10 "Terms" shall mean the entire Terms of Trade contained herein and include any Project Agreement specifically relating to a project.
3.0 Collection And Use Of Information About You And Your Business
3.1 The client authorises TKO to collect, retain and use any information about the client and the clients' business, director(s), shareholder(s), Guarantor(s) and supplier(s) for the purpose of assessing the client's credit worthiness, sending the client bills, reminders, demands and recovering money owed by the client or enforcing any rights under this contract.
3.2 The client authorises TKO to disclose any information obtained by any person to any other person, agent, or other entity for the purposes set out in clause 3.1.
3.3 Where the client(s), director(s), shareholder(s), Guarantor(s) is/are a natural person(s) the authorities under clauses 3.1 and 3.2 are authorities or consents for the purposes of the Privacy Act 1993.
4.0 Quotation
4.1 Where a quotation is given by TKO for goods or services:
-The quotation shall be valid for a maximum of 30 days from the date of issue; and
-The quotation shall be exclusive of Goods and Services Tax (GST) unless specifically stated to the contrary.
4.2 The client agrees that TKO may at its discretion charge for any additional goods or services which TKO in its professional capacity deems to be reasonably required in order to complete the project(s) which the client has contracted TKO to complete.
5.0 Modifications and Acceptance
5.1 TKO reserves the right to change these Terms at any time without notice to you by posting changes online at www.tko.co.nz you are responsible for reviewing regularly the information posted online to obtain timely motive of such changes. Your continued use of TKO services and products following any such changes and your failure to notify TKO of your not accepting one of more of the Terms shall constitute your acceptance of these Terms as modified by the posted changes.
5.2 Any instruction(s) received by TKO from the client for the supply of goods or services shall constitute acceptance of the Terms and Conditions contained herein. For new or large projects, a formal acceptance may be signified by the signing of a Project Agreement form. The Project Agreement forms part of these Terms for a specific job.
6.0 Client Approval and Authorisation Of Proofs
6.1 From time to time TKO may seek the approval or "sign off" of goods or services from the client for design, print, programming, copywriting, editing, proofing or any other goods or services prior to going into production, publication or delivery.
6.2 In its professional capacity you accept that TKO takes all reasonable steps to ensure work is free of mistakes, errors or defects, etc. and you agree that TKO, its staff and agents, are not responsible for any mistakes or deficiencies in work whether signed off by you the client, or a representative of you the client, or by TKO acting as your agent.
7.0 Price
7.1 Where no price is stated in writing in a Project Agreement or agreed to orally the goods and/or services shall be deemed to be sold at the current amount as such goods and services are sold or provided by TKO at the time of the contract.
7.2 The price may be increased by the amount of any reasonable increase in the cost of supply of the goods or services that is beyond the control of TKO between the date of the contract and delivery of the goods or providing of the services.
7.3 Where a quote has been requested for a project, the cost provided is simply an estimation. Unless expressly stated, the final cost will be based on time and materials expended by TKO to provide the service.
8.0 Payment
8.1 Payment for goods and/or services shall be made in full on or before the due date of the supplied Tax Invoice.
8.2 Interest may be charged on any amount owing after the due date at the rate of 2.5% per month or part thereof.
8.3 Where the duration of a project goes over a month, a progress invoice may be sent at the end of the month for work completed to date.
8.4 TKO reserves the right to cease work on a partially completed project until invoiced progress payments have been made.
8.5 TKO reserves the right to require an upfront payment of up to 40% on the total project cost before the commencement of projects.
8.6 Any expenses, disbursements and legal costs incurred by TKO in the enforcement of any rights contained in this contract shall be paid by the client, including any reasonable solicitor's fees or debt collection agency fees.
8.7 Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full unless otherwise agreed to by TKO.
9.0 Our Responsibilities To You
9.1 We will use our best endeavours to provide you with prompt, courteous service.
9.2 We will inform you of the processes required in order to complete your work.
9.3 We will supply you the goods, services and information you request or we will explain why we cannot meet the request.
9.4 We will keep you informed about the progress of your work.
10.0 Your Responsibilities To TKO
10.1 You must provide us with a clear brief or with clear instructions at the beginning of a job.
10.2 You must complete and return Project Agreements promptly.
10.3 You warrant that any material supplied to us for inclusion in your website does not infringe upon the intellectual property rights of a third party, and you further agree to ensure that the information you provide meets the legal requirements of the Fair Trading Act 1986, the Copyright Act 1994, the Defamation Act 1992, all other applicable laws and any relevant Advertising Codes of Practice. You also agree to indemnify us against any claim that may results from the inclusion of such materials in your website.
10.4 You must supply photography, image files and any other artwork and copy within the agreed timeframes. No artwork save template design will be supplied by us unless agreed in writing prior to commencement of the works.
10.5 Where you have failed to provide material or instruction necessary to advance a project or part of a project within a satisfactory time frame, TKO may adjust any "agreed to" time frames for delivery of its obligations under the contract as it sees fit, cease working on the project until such time as the required instruction is provided by you, or TKO may give you notice that the project is to be terminated.
11.0 Copywriting
11.1 Unless expressly included elsewhere in writing, the supply of the text content and the editing and proofing of text content for printed and electronic documents is the client's responsibility. If no copy is supplied by you, TKO may generate appropriate copy as it deems necessary. The costs of copywriting, editing and proofing undertaken by TKO will be excluded from the contract price and billed out separately at an hourly rate.
12.0 Image Costs and Royalties
12.1 Unless expressly stated elsewhere in writing, all costs associated with photography and/or finding, purchasing and management of license associated with images needed for printed or electronic documents are excluded from the price and will be billed as additional costs.
13.0 Hosting and Compatibility of Web Applications
13.1 TKO program in PHP and use MySQL databases.
13.2 Your web site and web application will be designed and built to operate on servers that support PHP and MySQL.
13.3 Web sites and Web applications are programmed and configured to work on the following browsers: Firefox version 3 onwards for Mac and PC and Internet Explorer versions 7 onwards for PC. Websites and Web applications may be displayed differently between browsers or operating systems.
13.4 Development for specific browsers, browser versions or platform needs outside of those covered in 13.2 and in 13.3 will attract additional fees.
13.5 E-mail and web hosting services provided by TKO are subject to these Terms.
13.6 TKO does not warrant that the functions, services and facilities contained or provided by its web servers, mail servers, web sites and software will be uninterrupted, timely, secure or error free, that defects will be corrected, or that this site or the server that makes it available are free of viruses, bugs, spyware or similar flaws or represent the full functionality, accuracy, and reliability of the materials.
13.7 If you wish to host your website or application with another provider you are required to notify TKO of this prior to the commencement of application work on the website or application. All project management, client management, third party management, uploading, testing and problem solving time and disbursements required to enable this will be billed to you and you will be liable for. Any issues that arise from hosting externally are not the responsibility of TKO and we accept no liability for them.
13.8 If you choose to move to another host server after the commencement of work, you will be required to notify TKO a minimum of four weeks in advance of the date you wish to move. You will also, be liable for all project management, client management, third party management, uploading, testing and problem solving time and disbursements and to pay a deposit for this as estimated by TKO. Any issues that arise from hosting externally are not the responsibility of TKO and we accept no liability for them.
13.9 You may only move your website or application to another host server if you can satisfy TKO that you own all the Intellectual Property relating to the files you are shifting or you have a licence from TKO to operate its IP with another host server or development team.
13.10 TKO does not permit third parties, that it has not contracted, access to its server environment under any circumstances.
14.0 Risk
14.1 The time agreed for delivery shall not be an essential term of this contract unless the client gives written notice to TKO making time of the essence.
14.2 Where TKO delivers goods or provides services to the client by installments and TKO fails to deliver or supply one or more installments the client shall not have the right to repudiate the contract but shall have the right to claim compensation as a severable breach.
14.3 Notwithstanding clause 16, all risk in respect of the goods or services passes to the client upon delivery.
14.4 Upon delivery of the goods or services the client will insure and keep insured goods and services for their full "insurable value".
14.5 You should note that the security of Internet, text message and e-mail is uncertain. By sending sensitive or confidential messages which are not encrypted you accept the risks of such uncertainty and possible lack of confidentiality over the Internet and other electronic communication.
14.6 Username and Password access to some products, services or content may require registration or you being allocated a user ID (username) and password that must be used whenever requested. That username and password are personal to you and you agree at all times to maintain the confidentiality of your username and password and not to disclose them to any third party. You agree that you are solely responsible for any use of the products, services, web sites and software by any person using your username and password. You agree to indemnify TKO against any and all claims arising out of your failure to maintain the confidentiality of your username or password.
15.0 Title
15.1 Where the client has not paid for in full any goods or services in its possession, property of such goods shall remain with TKO and:
The goods shall be held by the client as bailee; and If the goods are attached, fixed, or incorporated into any property of the client, such as in-house servers set up by TKO for the client, the title of the goods shall remain with TKO until the client has made payment for all goods, and where those goods are mixed with other property so as to be part of or a constituent of any new goods, title of these new goods shall deemed to be assigned to TKO as security for the full satisfaction by the client of the full amount owing between TKO and client.
15.2 The client gives irrevocable authority to TKO to suspend any goods or services not paid for in full by the client. TKO shall not be liable for costs, damages or expenses or any other losses incurred by the client or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever.
15.3 The client owns all the text, images, designs and computer applications created for them once paid for in full but subject to intellectual property, royalty and license terms contained herein and in any separate documentation provided.
15.4 The client owns one license to use the goods or services for themselves only.
15.5 Source code, Content Management System Code, Client Relationship Manager Code, other such products supplied under license and all Intellectual Property to the client remain the property of TKO.
16.0 Acceptance of Goods and Services
16.1 The client shall be deemed to have accepted the goods supplied and services provided unless the client notifies TKO otherwise within 7 days of delivery of the goods or the providing of the services to the client.
17.0 Intellectual Property
17.1 Intellectual property is defined as: Creative concepts, customised designs, copywriting, illustration, photography, customised Internet or other software applications developed for the client, or setting up of servers, or Project Specification Documentation prepared for clients.
17.2 TKO owns the intellectual property on all work completed by TKO and reserves the right to reuse some or all of the work on other projects as TKO sees fit without breaching client copyright.
17.3 The client owns license to use internet and software applications, photographic royalties for its self and does not have the right to sell the application to any other party unless agreed to in writing by TKO.
17.4 Source code, Content Management System Code, Client Relationship Manager Code, other such products software and Web Applications supplied under license to the client and all Intellectual property remain the property of TKO and cannot be disseminated without the express written consent of TKO.
17.5 TKO reserves the right to use all work sold to a client as part of its own marketing activities and demonstrate its capabilities.
18.0 Liability
18.1 Except as otherwise provided by statute TKO shall not be liable for:
- Any loss or damage of any kind whatsoever whether suffered or incurred by the client or another person whether such loss or damage arises directly or indirectly from goods or services or advice provided by TKO to the client; and
- Any downtime in service provision caused by third parties to which TKO is reliant on to provide the service to the client
- Except as provided in this contract TKO shall not be liable in contract, or in tort, or otherwise for any loss, damage, or injury beyond the value of the goods or services provided by TKO to the client; and
18.2 The client shall indemnify TKO against all claims of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of clause 18 whether caused or arising as a result of the negligence of TKO or otherwise, brought by any person in connection with any matter, act, omission, or error by TKO, its agents or employees in connection with the goods or services.
18.3 TKO is not responsible for any future proofing of a web site. The web site functionality may be affected by new web browsers that are released after the web site completion. Costs incurred to fix any incompatibilities are chargeable to the client.
19.0 Consumer Guarantees Act
19.1 The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the client acquires goods or services from TKO for the purposes of a business in terms of section 2 and 43 of that Act.
19.2 TKO shall be under no liability whatsoever to maintain, repair or replace software, web site(s), web content, databases or database content, design files or any supplied equipment should any of the afore mentioned not perform as a result of the use by the client, the clients employees agents or suppliers which do not meet the specifications of TKO Design Limited.
20.0 Cancellation
20.1 TKO shall, without any liability, and without any prejudice to any other right it has in law or equity, have the right by notice to suspend or cancel in whole or in part any contract for the supply of goods or services to the client if the client fails to pay any money owing after the due date or the client commits an act of bankruptcy as defined in section 19 of the Insolvency Act 1967, or (if the client is a company) does any act which would render it liable to be liquidation or have a receiver appointed over its property.
20.2 Any cancellation or suspension under clause 20.1 of this agreement shall not affect TKO claim for money due at the time of cancellation or suspension or for damages for any breach of any terms of this contract or the client's obligations to TKO under this contract.
20.3 If any failure by TKO to perform its obligations to the client are not corrected within 21 days of being served notice of the failure, the client may terminate any goods or services by providing notice in writing. All work done and all costs incurred by TKO up until this cancellation notification is received, along with all costs associated with ceasing the provision of goods and services, will be charged as outlined in this Agreement and be due within 21 days of the notice of cancellation.
20.4 TKO can at any time terminate any goods or services by providing 14 days notice in writing.
20.5 The client may terminate any goods or services by providing by 14 days notice in writing. The client will be liable, upon the termination date, for all time and costs incurred by TKO on any work up until that date or 50% of the project estimate (or quote) – whichever is more.
21.0 Miscellaneous
21.1 The client shall not assign all or any of its rights or obligations under this contract without the prior written consent of TKO.
21.2 TKO shall not be liable for delay or failure to perform its obligations if the cause of the delay or failure is beyond its control.
21.3 Failure by TKO to enforce any of the terms and conditions contained in this contract shall not be deemed to be a waiver of any of the rights or obligations TKO has under this contract.
21.4 Any waiver given may only be in writing and applies only to the right and on the occasion specified in the waiver.
21.5 The law of New Zealand shall apply to this contract except to the extent expressed negative or varied by this contract.
21.6 Where the terms of this contract are at variance with the order or instruction from the client, this contract shall prevail.
21.7 If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. Any dispute between the parties is to be dealt with in accordance with the Arbitration Act 1996. This excludes any action taken where there has been a default in payment of payments owed to TKO.