Chalk n Cheese Digital Limited

Terms & Conditions

General

The following Terms govern the supply of all the Services by us to you.

Any instructions received by us from you for the supply of the Services shall constitute acceptance of these Terms.

These Terms supersede all other terms, conditions and agreements between us and you and no variation of these Terms will apply unless accepted in writing by us.  No other terms and conditions contained in any document or other instrument supplied by you shall apply unless agreed in writing by us.

Definitions and Interpretation

In these Terms:

  • Business Day means any day other than Saturday, Sunday or public holiday in Auckland, New Zealand;
  • Confidential Information means all information disclosed by either party to the other party in connection with the provision of the Services but not including:
  1. Any information which is generally available or not of a confidential nature; or
  2. Any information which enters the public domain other than as a result of a party’s default.
  • Default Interest Rate means 12% per annum;
  • Event of Default has the meaning given in clause 11.1;
  • Fees means the fees payable by you to us for the Services as stated in the Proposal or as otherwise agreed between us;
  • GST means goods and services tax payable under the Goods and Services Tax Act 1985;
  • Hosting Services means the website hosting services to be provided by us to you as set out in the Proposal (or as otherwise agreed to be supplied by us);
  • Intellectual Property means trade marks, rights in domain names, copyright, patents, registered designs, circuit layouts, rights in computer software, databases and lists, rights in inventions, confidential information, know-how and trade secrets and all other intellectual property, in each case whether registered or unregistered which may subsist anywhere in the world;
  • Proposal means the proposal or quotation provided by us setting out the key terms including the Services to be provided and the Fees to be paid;
  • SEO Services means search engine optimisation services;
  • Services means all services to be provided by us to you as set out in the Proposal (or as otherwise agreed to be supplied by us); 
  • Terms means these terms and conditions (as amended from time to time);
  • We, Us and other like terms refers to Chalk n Cheese Digital Limited;
  • Web Development Services means the website design and development services to be provided by us to you as set out in the Proposal (or as otherwise agreed to be supplied by us); and
  • You, your and other like terms refers to the customer in respect of whom we agree to supply the Services.

In these Terms:

  • References to a party means either you or us;
  • Headings are for convenience only and will not affect the interpretation of these Terms; 
  • References to monetary amounts, dollars, or $ are to New Zealand dollars and are exclusive of GST.  GST is payable at the same time and in the same manner as is any other amount payable where that amount is subject to GST; and
  • The term “includes” or “including” (or similar terms) is deemed to be followed by the words “without limitation”.

Services

The Services to be supplied by us are as described in the Proposal or as otherwise agreed in writing by us.

For Web Development Services:

  • The website design will be based around the design approved in the Proposal. For information websites (versus ecommerce) the approved design will be used as a starting point to create the front end design only;
  • The background of the website will appear differently on each computer based on the resolution settings. Our websites are optimised to show on the majority of computers with no scroll bar appearing, forcing the viewer to scroll left and right. Computers with a resolution less than 1024px by 768px will unavoidably show a scroll bar. The maximum resolution catered to is 1920px by 1080px. This is usually achieved by using one background image. Upon request, we can have a repeating background pattern instead, which helps with load speed but does not allow for as much design flexibility. We cannot combine methods of using a background image and repeating pattern;
  • Colours differ for each computer based on individual visitors’ colour and monitor settings. Likewise, colours may appear differently when viewed on mobile devices; and
  • Fonts may appear differently on each browser based on browser settings, computer settings, or the due to limitations of the browsers themselves.

Hosting Services will commence once the website gets loaded on the server for coding.  For Hosting Services:

  • You will receive support free of charge for up to 30 minutes per month and we will also take regular backups of your website;
  • Our standard website support includes fixing any errors related to the WordPress platform updates and keeping any WordPress plugin up to date in the site environments to ensure the security of the framework.  Additional layouts and functionalities to the website will come at a cost of either $120 or $150 per hour;
  • We will take regular backups of your website.  Backup copies of your website files can be provided on written request and the time spent by us providing the backups will be charged to you based on our standard hourly rates;
  • A fair use policy is in place for disk space and bandwidth usage. 1GB disk space and 4GB bandwidth per month is considered fair use (the average website with us uses under 500MB disk space and under 1000MBs of bandwidth).  Each GB of exceeded disk space usage or bandwidth usage will incur an extra $10 charge per month. For high bandwidth users, if you require more than an additional 5GB, each additional GB of bandwidth is reduced to $5 per GB. Disk usage is set at $10 per GB after the first free GB;
  • We will make reasonable efforts to ensure website loading speed and uptime is at optimum levels, however, we will not be held liable by the client for issues relating to server performance or website functionality; and
  • Support for your website, website hosting and email will be available to you during our usual working hours, Monday to Friday, 9 am to 5 pm.

We reserve the right to not provide back end access to any websites hosted on our server.

We will use reasonable endeavours to keep our systems and servers protected from hackers, viruses, intruders and other online and offline problems, however, we will not be held liable for any disruption of Services if such situation arises.

We reserve the right to retain all Google Ads, Google Analytics, Facebook Ads and LinkedIn ads data from any campaign created or optimised by us as part of the SEO Services.

We will use reasonable endeavours to adhere to all timeframes for the completion of the Services as stated by us in the Proposal or otherwise agreed, however, we will not be liable for any delays.  Failure by you to promptly provide us with feedback, approval or other required information within the agreed timeframes may lead to delays with our supply of the Services.  Where our ability to supply the Services is delayed by you, the supply of the Services will be subject to our workload and availability.

Client Responsibilities

The Client acknowledges that the Web Development Services are a collaborative effort.  You commit to:

  • Promptly reply to our requests for logos, branding, images, and other information we require to complete your website;
  • Follow our instructions relating to the formats we require this information so we can work with it effectively;
  • Promptly respond to our requests for feedback and approval of design concepts;
  • Ensure any employee or agent of yours dealing with us is authorised to make decisions relating to the website on your behalf;
  • Be responsible for making us fully aware of their website functionality requirements prior to commencing their Web Development Services.  You must ensure these requirements are listed in the Proposal under the package functionality, or quoted under the additional functionality. We will not be obligated to undertake any additional functionality requests that are not listed in the Proposal. If additional functionality requirements arise after the Web Development Services have commenced, provided they are within the technical scope of our ability then the will be quoted on and agreed to before work on these aspects will commence.

You acknowledge and agree that we may add a discrete notice that the website has been developed by us on the footer of the website.  We may also choose to feature the website in our portfolio for promotional purposes.   

If you wish to integrate any third party software with your website, we take no responsibility whatsoever for issues relating to the suitability, functionality, or compatibility of that software with the website.

All photography and graphics for the website are to be supplied by you at your expense. Any photography or graphics already in the template can be included free of charge.

You must maintain the security of all account passwords and application or scripts and ensure all scripts are free from malicious content that may harm our hosting servers.

Fees

The Fees are (except in the case of manifest error or fraud) as set out in the Proposal or the price agreed in writing between us.  Any deposit paid is non-refundable.  

Unless stated otherwise all Fees stated are exclusive of GST.

As part of the Web Development Services, your website concept can be revised up to five times if necessary. If any further revisions are required, these will be done at $120 per hour.  Once the design concept is approved, any additional design changes needed, will be done at $120 per hour. Any additional functionality or programming tasks will be done at $120 per hour. Approvals can be made verbally or in writing.

Payment

Fees are payable at the times set out in the Proposal or as otherwise notified in writing by us.  Where there is no specific agreement in respect of payment we may render monthly invoices to you in respect of the Fees or invoice you on completion of the provision of Services.

You shall pay our Fees in full without deduction or set-off of any kind and to the bank account nominated by us in writing from time to time.

Intellectual Property

All Intellectual Property owned by you and provided to us for the purposes of carrying out the Services (Client IP) shall remain your property.  You grant to us a non-exclusive licence to use and copy the Client IP to the extent reasonably required to enable us to provide the Services.

You will defend any claim or proceeding brought against us on the ground that the Client IP infringes any Intellectual Property right.  You will:

  • Pay the amount of any judgement that may be awarded against us in any suit; and 
  • Indemnify us in respect of all costs, losses, claims, or expenses suffered or incurred by us as a result of any actual or claimed infringement of such rights and/or providing assistance to you in connection with your defence of any such claim or proceeding.

All Intellectual Property owned by us or any third party and provided or used or created or discovered by us in providing the Services, including in all design details, specifications, drawings or other material prepared or supplied by us to you (CnC IP) shall remain our property or that of the original owner.  We grant to you a non-exclusive and non-transferable licence to use and copy the CnC IP to the extent reasonably required for you to make use of the Services provided to you.

No Warranty

Apart from any express warranties provided by us we make no representations and give no assurances, warranties or guarantees to you in relation to the Services.  To the maximum extent permitted by law:

  • Any representation, assurance, warranty or, guarantee implied by law, custom or practice is excluded and
  • We do not represent or warrant that the functionality of the Services will be error free or that the Services will always be available. 

To the maximum extent permitted by law none of our agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by one of our directors in writing nor are we bound by any such unauthorised statements.

You agree that the Services are acquired for business purposes.  The parties agree to contract out of:

  • Sections 9, 12A and 13 of the Fair Trading Act 1986 in accordance with section 5D of that Act; and
  • The Consumer Guarantees Act 1993 (to the extent that it is applicable) in accordance with section 43 of that Act.

Liability

To the maximum extent permitted by law:

  • We are not liable to you (whether in contract, tort or otherwise) for any indirect, special or consequential loss or loss of business or other profits under or in connection with these Terms or the use or operation of the Services; and
  • Our aggregate liability to you (whether in contract, tort or otherwise) shall be limited to the Fees paid for the Services to which the claim relates.

Cancellation of Services

You may not cancel the Web Development Services without our consent.  If we agree to accept your request to cancel the Web Development Services, you must pay us for:

  • The Fees for all of the Services cost of all work carried out up to the date of cancellationtermination; and
  • Any costs that we have committed to and that cannot be cancelled and our profit margin on those costs,
  • less any non-refundable deposit previously paid.

Either we or you may cancel the Hosting Services at any time by providing one months’ prior written notice.  Simply asking for a UDAI code will not cancel your hosting and domain payments and the service will continue until terminated in accordance with this clause.

We reserve the right to remove any proprietary built or subscription owned apps installed on your website prior to releasing any website files.

Packing and releasing website files and databases will incur costs which will be dependent on hours required to package all assets.  We reserve the right to package website files within our own time frames.

Default

You commit an Event of Default if:

  • Any payment is not made when due;
  • You breach any of these Terms;
  • You cease to carry on business;
  • You become unable to meet your debts as they fall due;
  • You commit an act of bankruptcy or are declared bankrupt; 
  • You become insolvent, convene a meeting with your creditors or propose or enter into an arrangement with creditors, or make an assignment for the benefit of your creditors; or
  • A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of you or any of your assets.

If an Event of Default occurs, without prejudice to any other rights or remedies available to us under these Terms or otherwise:

  • All amounts owing to us, whether or not due for payment, shall immediately become due and payable;
  • We may withhold provision of the Services; 
  • We may cancel or suspend any of the Services; and
  • We may charge interest on any overdue amount at the Default Interest Rate from the due date of the outstanding invoice until the date of payment.

In extreme cases of continued non-payment, we reserve the right to engage our collections agency to obtain outstanding funds, and suspend the web and email hosting. In such cases, you are responsible for any associated collection costs.

If we cancel or suspend any Services due to your Event of Default we will not be liable to you for any loss or damage whatsoever arising from such cancellation or suspension.

Use of Third Parties

We may subcontract with any other person, firm or company to provide the Services.

Confidential Information

You agree to keep all Confidential Information disclosed by us confidential and not to disclose any Confidential Information to any person.

We agree to keep all Confidential Information disclosed by you confidential and not to disclose any Confidential Information to any person except our employees, sub-contractors and advisers to whom it is necessary to disclose so that we can provide the Services.

Privacy Policy

The use of information is governed by our separate Privacy Policy available at www.chalkncheese.co.nz.

General

We shall not be liable for any delay or failure to comply with our obligations under these Terms which are caused by any act of God, terrorism, war, strike, lock out, industrial action, flood, storm, epidemic, pandemic, or other event beyond our reasonable control.

We do not waive a right, power or remedy if we fail to exercise or delay in exercising the right, power or remedy. 

The rights powers and remedies provided in these Terms are cumulative and not exclusive of any rights powers or remedies provided by law. 

If any of these Terms shall become invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.  

You may not assign any of your rights under these Terms.  We may at any time assign the benefit of these Terms to any party on such terms as we consider fit.

These Terms and any order or contract evidenced by these Terms is governed by the laws of New Zealand.   You submit to the exclusive jurisdiction of the courts of New Zealand.