Word2Art Terms & Conditions of Business
The Customer’s acceptance of any quote, estimate of goods and/or services supplied by Word2Art, indicates acceptance of these Terms and Conditions and agreement to be bound thereby.
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement:
Acceptance Criteria means those criteria for acceptance of the Website Services set out in clause 5.
Agreement means the agreement between WWord2Art and the Customer incorporating these Terms and Conditions and the Proposal, and any amendments to it from time to time.
Business Day means any week day, other than a bank or public holiday in New Zealand.
Business Hours means between 09:00 and 17:30 New Zealand Standard Time on a Business Day.
Charges means the amounts payable by the Customer to Word2Art under or in relation to the Agreement (as set out in the Proposal).
Control means the legal power to control (directly or indirectly) the management of an entity (and Controlled will be construed accordingly).
Copywriting Service(s)” means any training, consulting, research, copywriting, drafting, reviewing, editing, or proofreading service or other literary service provided by Word2Art, including the provision of draft or final Copywriting Works.
Customer means the customer for services under the Agreement as specified in the Proposal and this Agreement.
Customer Works means all the works, materials and information provided to Word2Art by the Customer, or by any third party acting for or on behalf of the Customer, for incorporation into the Website and/or Copywriting Documents. The said Customer Works may include but are not limited to photographs, written copy, logos and other printed or electronic material.
Deployment Date means the date Website Deployment has occurred.
Design Elements means the visual appearance of the Website (including page layouts, artwork, photographs, logos, graphics, animations, video works and text comprised in the Website) together with all mark-ups and style sheets comprised in or generated by the Website, but excluding:
(a) the Customer Works; and
(b) the Third Party Works; and
(c) the Website Content.
Domain Name means the top level domain(s) referred to in the Proposal;
Early Termination means termination of the contract in accordance with clause 14.
Force Majeure Event means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
Intellectual Property Rights means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the intellectual property rights referred to above include copyright and related rights, moral rights, database rights, confidential information, trade secrets, know-how, business names, trade names, domain names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
Personal Data has the meaning given to it in the Privacy Act 1993.
Prohibited Content means:
(a) material which breaches any applicable laws, regulations or legally binding codes, or infringes any third party Intellectual Property Rights or other third party rights, or may give rise to any form of legal action against Word2Art or the Customer or any third party;
(b) objectionable, pornographic or lewd material;
(c) messages or communications which are offensive, abusive, indecent or obscene, are likely to cause annoyance, inconvenience or anxiety to another internet user, or constitute spam or bulk unsolicited mail;
Proposal means the proposal documents, terms and conditions, and order forms, either electronic or hard copy, issued by Word2Art detailing the scope of the Services and other matters relating to the Agreement.
Resources means the email mailboxes, data transfer, and disk space storage specified in the Proposal.
Search Engine means any third party website, displaying searchable, categorised, and hyperlinked information about the Website. The most notable example of a Search Engine is Google.com.
Search Engine Optimisation means the process of employing techniques and methodologies outlined in the Proposal in order to improve the appeal of the Website to Search Engine ranking algorithms, most specifically Google.com;
SEO means Search Engine Optimisation.
Services means Copywriting and Website Services.
Software Elements means the Website excluding:
(a) the Design Elements;
(b) the Customer Works; and
(c) the Third Party Works;
Term means the term of this Agreement.
Third Party Works means the works and materials comprised in the Website, or the Copywriting Works, the Intellectual Property Rights in which are owned in whole or part by a third party (excluding the Customer Works);
Unlawful Content has the meaning given to it in Clause 13.
Website means the website or web application functionality to be supplied by Word2Art for the Customer under the Agreement;
Website Content means the Customer Works implemented into the Website using the Content Management System through a standard web browser.
Website Defect means a defect, error or bug having a material adverse effect on the appearance, operation or functionality of the Website but excluding any defect, error or bug caused by or arising as a result of:
(a) an act or omission of the Customer, or an act or omission of one of the Customer’s employees, officers, agents or sub-contractors;
(b) an incompatibility between the Website and any other application, program or software.
Website Deployment means the Website is published making it publicly accessible on the internet under the Domain Name(s) as outlined in the Proposal;
Year means a period of 365 days (or 366 days if there is a 29 February during the relevant period).
Website Services means the services detailed in Clause 2.1.
Works means any electronic or physical thing produced as a result of the Services.
2. THE SERVICES
2.1 The Website Services
(a) will deliver the Website as outlined in the Proposal;
(b) will facilitate the incorporation of the Website Content into the Website by the Customer;
(c) will perform organic Search Engine Optimisation Services to the best of its abilities; however, Word2Art cannot guarantee the position or inclusion of the Website within Search Engine rankings or results.
(d) may suspend some or all of the Services in order to carry out scheduled maintenance or repairs. Subject to this, Word2Art will use its best endeavours to maintain an acceptable Website availability level;
(e) will make available, an online help facility for the purpose of providing support to the Customer (and Word2Art’s other customers). Word2Art will use reasonable endeavours to respond to requests for support within 2 Business Days;
(i) will from time to time upgrade the Software Elements of the Website to provide greater service, security, and efficiency of the Website for the Customer;
(l) will provide Website setup and configuration services as outlined in the proposal.
(m) will provide Website customisation and design as outlined in the proposal.
2.2. The Copywriting Services
(a) The Supply of the Customer’s own copy draft.
Where Word2Art is instructed to use a copy draft that the Customer has written itself or that has been written for it, the Customer confirms that they are the holder of the copyright to this draft or that it is permitted by the copyright holder to use this material to form part of the commissioned work. In this regard, the Customer indemnifies Word2Art against any claim arising from claims that the new work breaches existing copyright.
(b) Referencing third party copy.
The use of all research, samples or other material supplied by the Customer and which has been taken from a third party source, including printed media, and websites, must be authorised for such use. The Customer indemnifies Word2Art against any action arising as a result of using this content as reference material in breach of existing copyright.
(c) On completion of the project and after final payment is received, Word2Art transfers to the client all rights to the copy in the form for which it was originally intended. (By way of example, copy required for a web page may need further copyright negotiation if it is later sold as a book). Word2Art reserves the right to use a sample of the work for promotional purposes.
(d) Copyright to all work undertaken by Word2Art remains the intellectual property of Word2Art until payment is received in full.
(e) If the client defaults on payment, any copy written by Word2Art cannot be used until full payment is received.Copy samples by Word2Art.
(f) Copy samples by Word2Art.
All sample copy displayed on the Copywriter’s websites and/or any other promotional material is for information only. The Customer may not adapt or copy any item, in whole or in part, other than to demonstrate to a client or colleague the nature of Word2Art’s work with a view to commissioning a project.
Unless a rejection fee has been agreed in advance, there is no right to reject on the basis of Word2Art’s style, composition, editing or interpretation of the Customer’s needs, amendments or circumstances. The Customer commissions Word2Art based on their style and previous work examples.
4. OBLIGATIONS OF THE PARTIES
Obligations of Word2Art
4.1 Word2Art will use reasonable endeavours to perform the Services in accordance with the timetable set out in the Proposal; however, Word2Art does not guarantee that that timetable will be met.
4.2 Where any or all of the Services above are not expressly outlined in the Proposal, they will not form part of the Agreement.
4.3 The Customer will provide Word2Art with:
(a) such co-operation as is required by Word2Art (acting reasonably) to enable the performance by Word2Art of its obligations under the Agreement.a designated point of contact in respect of all communications with Word2Art by the Customer.
(b) a designated point of contact in respect of all communications with Word2Art by the Customer.
(c) all information and documents required by Word2Art (acting reasonably) in connection with the provision of the Services.
4.4 The Customer will be responsible for procuring any third party co-operation reasonably required by Word2Art to enable Word2Art to fulfill its obligations under the Agreement.
4.5 The Services are provided to the Customer only, and the Customer may not resell the Services to any third party.
4.6 The Customer will be responsible for obtaining suitable licenses of third party software (such as email client software) which are required for the full use of the Website Services.
4.7 It is the Customer’s responsibility to keep any passwords relating to the Website Services confidential, and to change such passwords on a regular basis. The Customer will notify Word2Art immediately if it becomes aware that a password relating to the Services is or may have been compromised or misused.
5. DELIVERY AND ACCEPTANCE
5.1 Word2Art will give the Customer notification in writing when the Website is ready for acceptance testing.
5.2 Upon Customer notification, as detailed in clause 5.1 above, the Customer, will carry out acceptance tests to determine:
(a) whether the Website conforms in all material respects with the specification of the Website in the Proposal; and
(b) whether there are any Website Defects;
5.3 If in the Customer’s reasonable opinion the Website meets the Acceptance Criteria, the Customer will send to Word2Art a written notice confirming acceptance of the Website.
5.4 If in the Customer’s reasonable opinion the Website does not meet the Acceptance Criteria, the Customer will send to Word2Art a written notice setting out in detail the respect(s) in which the Website does not meet the Acceptance Criteria.
5.5 If Word2Art (acting reasonably) agrees that the Website does not meet the Acceptance Criteria, Word2Art will have a further remedial period (of 30 Business Days) to modify the Website so that it meets the Acceptance Criteria.
5.6 The Website will be deemed to have been accepted by the Customer if the earlier of the following occurs:
(a) the Customer does not give any notice to Word2Art under either Clause 5.3 or Clause 5.4 within the Acceptance Period; or
(b) the Customer instructs Website Deployment to occur; or
(c) the Customer uses the Website for any purpose other than Website Content loading and/or testing.
6. THE COPYWRITING PROCESS
6.1 Word2Art will produce a first draft within the timescale agreed and will expect amendments/revisions on that draft within fourteen days of the Customer receiving that draft. Word2Art will write up to three drafts within the original estimate of charges and for discrete jobs, Word2Art expects to have reached the final version within 30 days of submitting the first draft. Unless a longer timescale has been agreed, Word2Art may charge the full cost of the job at the end of those 30 days. Subsequent amendments after the final draft is agreed will be charged at the normal hourly rate, except as specified in paragraph 6.2.
6.2 Errors and Literals
(a) Word2Art shall make every effort to ensure copy is free from spelling and other mistakes. Early drafts may contain such errors but Word2Art shall make every effort to ensure these are removed before the final draft.
(b) Any such errors that are overlooked by Word2Art at the time of the final submission will be corrected by Word2Art free of charge without acceptance of liability for any costs the Customer incurred as a result of those errors.
7. THIRD PARTY WORKS
Any licence fees for Third Party Works will be payable by the Customer in addition to the Charges specified in the Proposal (unless the parties agree otherwise.
8. ACCEPTABLE USE
8.1 The Customer must not use the Website or any of the Services:
(a) to host, store, send, relay or process any Prohibited Content;
(b) for any purpose which is unlawful, fraudulent, or infringes any third party rights;
(c) in any way which may put Word2Art in breach of a contractual or other obligation owed by Word2Art to any internet service provider.
8.2 Word2Art reserves the right to remove content from the Website where it reasonably suspects such content is Prohibited Content.
8.3 The Website’s utilisation of Resources must not exceed the limits set out in the Proposal. If the Website’s utilisation of Resources exceeds those limits, the parties will endeavour to agree a variation to this Agreement. If the parties cannot agree such a variation within a reasonable period (being not more than 10 days) following notice from Word2Art to the Customer requesting such variation, and Resource utilisation continues to exceed those limits, the Customer will be deemed to be in material breach of this Agreement for the purposes of Clause 14.
8.4 The Customer acknowledges that Word2Art does not purport to monitor the content of the Website or the use of the Services.
8.5 Where Word2Art reasonably suspects that there has been a breach of the provisions of this Clause 8, Word2Art may suspend any or all of the Services and/or the Customer’s access to any or all Services while it investigates the matter.
8.6 Subject to Clause 8.3, any breach by the Customer of this Clause 8 will be deemed to be a material breach of this Agreement for the purposes of Clause 14.
8.7 The Customer will indemnify and will keep indemnified Word2Art against all damages, losses and expenses (including legal expenses) arising as a result of any breach by the Customer of this Clause 8, and any claim that the Website Content or Customer Works constitute Unlawful Content, or any legal proceedings relating to such a claim.
9. FEES AND DEPOSITS
9.1 Word2Art will issue invoices for the Charges to the Customer from time to time in advance during the Term as set out in this Agreement.
9.2 A 50% deposit of the total fee payable for the Services is due immediately upon the Customer instructing us to proceed with the Work. This deposit is non-refundable.
9.3 The Customer will pay the Charges to Word2Art within the earlier of:
(a) 7 days of the date of issue of an invoice issued in accordance with Clause 9; or
(b) on or before the relevant due date shown on tan invoice issued in accordance with Clause 9.1; or
(c) on or before the relevant due dates set out in the Proposal.
9.4 All Charges stated in or in relation to the Agreement are stated exclusive of GST, unless the context requires otherwise.
9.5 Charges must be paid in accordance with the terms of this Agreement and the Proposal.
9.6 If the Customer does not pay any amount properly due to Word2Art under or in connection with the Agreement, the Customer agrees that Word2Art may:
(a) charge the Customer interest on the overdue amount at the rate of 2.5% per month which interest will accrue daily until the date of actual payment and will be compounded monthly;
(b) refer the debt to Word2Art’s nominated debt collection agency;
(c) release the Customer’s details to Word2Art’s nominated credit reporting agency;
(d) claim all costs related to debt recovery from the Customer;
(e) restrict or cease provision of services to the Customer as outlined in the Agreement.
9.7 Charges for any applicable monthly running costs as outlined in this Agreement will begin from the date of Deployment.
9.8 Word2Art has the right to increase its fees and charges by providing the Customer 30 days notification of such an increase.
9.9 Unless otherwise specified, any website related recurring monthly charges (e.g. Maintenance Fees and Support Packages) will begin 12 weeks from the initial signing of the contract.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights in the Website Content, and Customer Works will, as between the parties, be the property of the Customer, subject always to the other terms of the Agreement.
10.2 All Intellectual Property Rights in the Design Elements will, as between the parties, be the property of Word2Art and, from the Deployment Date, Word2Art grants to the Customer a non-exclusive worldwide licence to use the Design Elements in connection with the Website, subject always to the other terms of the Agreement, and providing the Customer must not:
(a) sell, resell, rent, lease, supply, distribute or redistribute the Design Elements;
(b) use the Design Elements in connection with any website, web application, script, computer program or software (other than the Website); or
(c) alter or adapt or edit the Design Elements.
10.3 Design Elements created by Word2Art can be supplied to the Customer upon request and in an appropriate format as determined by Word2Art.
10.4 The Third Party Works will be either (at the option of Word2Art):
(a) supplied in accordance with the relevant licensor’s standard terms for online use; (b) supplied on licence terms notified by Word2Art to the Customer;
(b) sub-licensed by Word2Art to the Customer on terms notified by Word2Art to the Customer.
10.5 Notwithstanding any other provision of the Agreement, the assignments and licences granted by Word2Art under the Agreement are subject to the payment by the Customer of all amounts owing to Word2Art in full and on time. In the event that the Customer owes any amount to Word2Art and fails to pay that amount to Word2Art within 14 days of receiving a notice:
(a) requiring it to do so; and
(b) specifying that the assignment will revert and the licences will terminate if the amount repays unpaid, then Word2Art may immediately revert the assignments and terminate the licences granted by Word2Art under the Agreement by giving written notice of reversion and termination to the Customer.
10.6 Subject to Clause 10.4, upon and following the termination of the Agreement, any licence granted by Word2Art to the Customer will continue notwithstanding termination, and this Clause 10 will continue to apply.
10.7 Word2Art may include a statement of credit together with a link to Word2Art’s website on each page of the Website in an unobtrusive position. The Customer will retain any such credit and link in any adapted version of the Website, and the Customer will (and will only) remove any such credit and link from the Website at Word2Art’s request.
10.8 The Customer grants to Word2Art a non-exclusive worldwide licence, under the Intellectual Property Rights in the Works, to use the Works for the purpose of marketing Word2Art’s services to third parties.
11.1 The Customer warrants to Word2Art that it has the legal right and authority to enter into and perform its obligations under the Agreement.16.2 Word2Art warrants to the Customer:
11.2 Word2Art warrants to the Customer:
(a) that it has the legal right and authority to enter into and perform its obligations under the Agreement, and
(b) that it will perform its obligations under the Agreement with reasonable care and skill.
11.3 The Customer acknowledges that Word2Art has designed the Website to work with the most common and widely used version of Microsoft Internet Explorer, and Mozilla Firefox web browser technology at the date of this Agreement, and Word2Art does not warrant that the Website will work with any other web browser technology.
11.4 The Customer further acknowledges that Word2Art does not purport to provide any legal advice under the Agreement or in relation to the Website and Word2Art does not warrant that the Website will not give rise to any civil or criminal legal liability on the part of the Customer or any other person.
11.5 All of the parties’ liabilities and obligations in respect of the subject matter of this Agreement are expressly set out in the terms of this Agreement. To the maximum extent permitted by applicable law, no other terms concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
12. LIMITATIONS OF LIABILITY
12.1 Nothing in the Agreement will exclude or limit the liability of either party for:
(a) death or personal injury caused by that party’s negligence;
(b) fraud or fraudulent misrepresentation on the part of that party; or
(c) any other liability which may not be excluded or limited under applicable law.
12.2 Subject to Clause 12.1, Word2Art’s liability to the Customer under or in connection with the Agreement, any 3rd party agreement or contract, or any collateral contract, whether in contract or tort (including negligence), will be limited as follows:
(a) Word2Art will not be liable for any:
(i) loss of profits, income or anticipated savings;
(ii) loss or corruption of any data, database or software;
(iii) reputational damage or damage to goodwill;
(iv) loss of any commercial opportunity, or
(v) indirect, special or consequential loss or damage.
(b) Word2Art will not be liable for any losses arising out of a Force Majeure Event, and
(c) Word2Art’s liability in relation to any event or series of related events will in no circumstances exceed the greater of:
(i) NZD $5,000; and
(ii) the total amount paid (or, if greater, payable) by the Customer to Word2Art under the Agreement during the 12 month period immediately preceding the event or series of events.
13. PRIVACY OF DATA
13.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to Word2Art under the Agreement.
13.2 Word2Art warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by Word2Art on behalf of the Customer; and
(b) it will not disclose, sell, or release Personal Data to any third party unless otherwise outlined in this Agreement, or required to do so by law.
14.1 Either party may terminate the Agreement at any time by giving at least 30 days written notice to the other party.
14.2 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party:
(a) commits any material breach of any term of the Agreement, and:
(i) the breach is not remediable, or
(ii) the breach is remediable, but other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so;
(b) fails to pay any amount due under the Agreement in full and on time;
(c) persistently breaches the terms of this Agreement.
15. EFFECTS OF TERMINATION
15.1 Upon termination all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 8, 9, 10, 11, 13, 15, and 16.1 to 16.12.
15.2 Termination of the Agreement will not affect either party’s accrued rights (including Word2Art’s accrued rights to invoice and to be paid the Charges) as at the date of termination.
15.3 If the Agreement is terminated under Clause 14.1, or by the Customer under Clause 14.2 (but not in any other case):
(a) The Customer will not be supplied and is not entitled to electronic copies of:
(i) the Software Elements;
(ii) the Design Elements;
(iii) the Third Party Works.
(b) Word2Art will provide such assistance as is reasonably requested by the Customer to enable the transfer of the Domain Name(s) to the Customer or another service provider, subject to payment of Word2Art’s reasonable expenses; and
(c) the Customer will be entitled to a refund of any Charges paid by the Customer to Word2Art in respect of any Services which were to be performed after the date of effective termination, and will be released from any obligation to pay such Charges to Word2Art (such amount to be calculated by Word2Art using any reasonable methodology).
15.4 Save as provided in Clause 15.3(c), the Customer will not be entitled to any refund of Charges on termination, and will not be released from any obligation to pay Charges to Word2Art.
15.5 If Early Termination occurs under the Agreement Early Termination Charges will be charged to the Customer as outlined in this Agreement and the Proposal.
16.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
16.2 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).
16.3 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties.
16.4 The Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
16.5 Word2Art may freely assign its rights and obligations under the Agreement without the Customer’s consent. Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any rights or obligations under the Agreement.
16.6 Word2Art may subcontract any of its obligations under the Agreement to any third party without the Customer’s consent.
16.7 The Customer will not, without Word2Art’s prior written consent, either during the term of the Agreement or within 6 months after the date of effective termination of the Agreement, engage, employ or otherwise solicit for employment any employee or contractor of Word2Art who has been involved in the performance of the Agreement.
16.8 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which is necessary to enable the parties to exercise their rights and fulfil their obligations under the Agreement.
16.9 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
16.10 The Agreement constitutes the entire agreement and understanding of the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties relating to the subject matter of the Agreement. Subject to Clause 12.1, each party acknowledges that no representations or promises not expressly contained in the Agreement have been made by or on behalf of the other party.
16.11 The Agreement will be governed by and construed in accordance with the laws of New Zealand and the courts of New Zealand will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.
16.12 Word2Art may vary the terms of this agreement from time to time, and will do so by updating the online terms and conditions, and sending notification by email. Once notification has been given these new terms will be considered binding and enforceable under this Agreement.
16.13 The Customer authorises Word2Art to act as agent on the Customer’s behalf for all Domain Name(s) as outlined in the Proposal. Such authorisation is restricted to activities related to the registration and management of the Customer’s Domain Name(s), and may include (but is not limited to):
(a) submitting Service Requests to the Registrar on the Customer’s behalf, and dealing with the Registrar;
(b) entering into a contract with the Registrar on behalf of the Customer, in the form of the Domain Name Registration process;
(c) disclosure of personal information to the Registrar in order to accurately register and manage the Domain Name(s).