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PREAMBLE
1. Preamble
1.1 All Services of Total Office Management Ltd are supplied subject to these terms of trade with the provisions of:
a) Part I applying to the provision of all and any services; and
b) Part II applying to the provision of accounting services; and
c) Part III applying to the provision of web development services; and
d) Part IV applying to the provision of web site hosting services.
PART I – General Clauses
2. Definitions
2.1 “TOM” shall mean Total Office Management Ltd, or any agents, employees, successors or assigns thereof.
2.2 “Client” shall mean the entity or person named on any form provided by the Client to TOM (or any person acting on behalf of and with the authority of such entity or person) who buys or agrees to buy Services. If the Client includes two or more persons, those persons’ liability is joint and several.
2.3 “Services” shall mean any Services provided by TOM to the Client (including, but not limited to, the preparation and provision of accounting services, web site development and hosting services, or any advice or recommendations) and are as described on any invoice provided by TOM to the Client.
2.4 “Price” shall mean the cost of the Services as determined by TOM and any other amounts owing to TOM by the Client.
3. General
3.1 Headings are inserted for convenience and shall not affect the construction of this contract. The singular includes the plural and vice versa. Persons include incorporated and unincorporated entities. Words importing one gender include the other.
3.2 If any provision of this contract shall be invalid or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.
3.3 This contract shall be subject to the laws and statutes of New Zealand and subject to the jurisdiction of the court geographically closest to the physical address of TOM.
3.4 TOM may sub-contract any part of this contract. No-subcontractor has any authority to agree to any variation of this contract on behalf of TOM.
3.5 TOM’s failure or delay in exercising or enforcing any right it has under this contract shall not operate as a waiver of TOM’s rights to exercise or enforce such rights or any other rights in the future.
3.6 TOM may, and the Client may not, vary or replace this contract and it will be a condition of TOM continuing to supply Services to the Client that the Client agrees to sign any variation or replacement of this contract.
3.7 Any waiver of these terms and conditions by TOM must be made in writing.
3.8 The Client may not assign all or any of the Client’s rights or obligations under this contract without the written permission of TOM.
3.9 TOM shall not be bound by any error or omission made by TOM on any invoice, quotation, estimate, or any other document issued by TOM.
3.10 The Client shall notify TOM of any intention to cease trading or of any change in the Clients name, and/or contact details by giving at least seven (7) days notice in writing prior to any such events taking effect.
4. Acceptance
4.1 Any instructions received by TOM from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by TOM shall constitute acceptance of this contract.
4.2 TOM will only supply Services on these terms and conditions unless agreed otherwise in writing.
4.3 These terms and conditions along with invoices, client authorisation form, or any other documents issued by TOM together form the contract and are the full agreement between the parties.
5. Consumer Guarantees Act & Fair Trading Act
5.1 Nothing in this contract is intended to have the effect of contracting out of the Consumer Guarantees Act and the Fair trading Act except to the extent permitted by statute.
6. Price
6.1 The Price of the Services shall be as shown on TOM’s invoice.
6.2 Unless otherwise agreed the Price is exclusive of Goods and Services Tax, and any other applicable taxes, duties, charges and costs payable by the Client in addition to the Price.
7. Payment
7.1 Unless otherwise agreed to in writing by TOM, payment of any invoice shall be due fourteen days following the issue date of the invoice.
7.2 TOM has the right to apply or appropriate any payment to any account of the Client. Should the Client have a number of accounts, then TOM is hereby given the right to combine any account and also set-off any amount between such accounts.
7.3 All payments by the Client must be made in full and without any deduction or right of set-off or counterclaim. The Client agrees, however, that any monies that TOM may owe the Client on any account whatsoever may, at TOM’s option, be set-off against payments due by the Client to TOM.
8. Default
8.1 Without prejudice to any other rights or remedies that TOM may have against the Client, the Client agrees that in the event of default in payment by the Client then the Client agrees to pay on demand;
a) all costs (including, but not limited to, collection agency fees, commission, legal fees and any other costs on a solicitor and own client basis) incurred by TOM in recovering any amounts payable by the Client to TOM; and
b) interest on the amount outstanding at the end of each month in which the Clients account is in arrears at the rate of twenty percent (20%) per annum charged monthly with such a rate after as well as before any judgement; and
c) a monthly administration fee of twenty five dollars ($25) by way of damages payable on the last day of each month in which the Clients account is in default.
8.2 TOM may at TOM’s sole discretion stop further performance of this contract, require payment in cash before further performance of this contract, or terminate this contract without notice to the Client upon the happening of any of the following events:
a) the Client makes default in payment due under this contract or in payment of any moneys due by the Client to TOM on any account whatsoever; or
b) the Client is insolvent or takes any proceedings to reschedule any indebtedness; or
c) in TOM’s opinion the Client is unable to pay indebtedness as it falls due; or
d) a receiver or manager is appointed to any property of the Client.
9. Privacy Act
9.1 The Client acknowledges that personal information collected or held by TOM is provided and may be held, used and disclosed for the following purposes:
a) administering, whether directly or indirectly, TOM's contracts and enforcing TOM's right thereunder; and
b) ascertaining at any time the Client's creditworthiness and obtaining at any time credit reports, character references or credit statements; and
c) enabling TOM to notify any credit agency of any application for credit or default on any obligation of the Client to TOM and enabling TOM to provide such personal information to any credit agency so such credit agency can maintain effective records; and
d) enabling the Client to communicate with TOM for any purpose.
9.2 Where the Client and/or Guarantors are an individual the authorities under clause 9.1 are authorities or consents for the purposes of the Privacy Act 1993.
9.3 The Client has the right under the Privacy Act 1993 to obtain access to and to request correction of any personal information concerning it held by TOM.
10. Errors and Omissions
10.1 Any claim by the Client as to incorrect performance or breach of this contract must be made to TOM in writing within seven (7) days of delivery (time being of the essence) of the Services otherwise TOM shall be entitled to presume that the Services have been delivered in good order and without any errors or omissions.
11. Lien
11.1 Property and ownership in documents prepared by TOM for the Client will not pass to the Client, but will remain with TOM, until payment in full of the Price.
11.2 Any documents delivered into the possession of TOM are subject to a lien for any amounts in default.
12. Limitation of Liabilities
12.1 TOM shall not be liable to the Client, or to any other person, for any loss or damage either:
a) caused by any delay in delivery however that delay is caused; or
b) arising directly or indirectly from the Services or their use.
12.2 TOM shall not be liable for any consequential, indirect or special damages or loss of any kind suffered by the Client or any other person caused by any breach by TOM of any of TOM’s obligations under this contract.
12.3 If TOM is ever liable to the Client, or any other person, and TOM cannot rely on the exclusions or representations, warranties, or liabilities set out in these terms and conditions then TOM’s liability is in all cases limited to the lesser of five times the value of the Services or the sum of one hundred thousand dollars ($100,000).
12.4 Neither party shall be deemed in default of this contract to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any Act of God, war, terrorism, fire, natural disaster, accident, act of government, strikes, unavailability of material, or any other cause beyond the reasonable control of such party.
13. Cancellation
13.1 To end the contract, the Client must give TOM a signed notice stating that the Client is ending the contract under this clause and giving the details of why the contract is being ended.
13.2 If a contract is ended under this clause, TOM is entitled to a reasonable Price for the Services carried out under the contract to the date the contract is ended. However, TOM may not recover more than TOM would have been entitled to recover under the contract.
13.3 TOM shall be under no obligation to release any documents held by TOM until payment in full of the Price.
14. Dispute
14.1 For any and all disputes arising between the parties under this contract, where the Price is within the limits of the jurisdiction of the Disputes Tribunal, the Client expressly acknowledges and agrees that this contract may be taken as agreement that both parties consent for the dispute to be referred to the Disputes Tribunal for resolution.
14.2 In the event of a dispute where the Price exceeds the limits of the jurisdiction of the Disputes Tribunal the parties agree that before referring the dispute to a third party a period of no less than four (4) weeks shall pass to allow both parties time to attempt to negotiate or mediate an agreement. Failing an agreement acceptable to both parties being formed such disputes will be referred to a single arbitrator to be mutually agreed upon by the parties (or failing such agreement as appointed by the Arbitrators Institute of New Zealand council). Any determination of such arbitrator shall be final and binding on the parties and not subject to review.
PART II – Accounting Services
15. TOM’s Responsibilities
15.1 TOM shall:
a) prepare the financial statements in accordance with acceptable accounting principles.
b) attach to all financial statements a disclaimer of liability.
c) not conduct an audit or review assignment on the Client’s accounting records.
d) not express an audit or review opinion or provide any other form of assurance on the Financial Statements.
e) conspicuously mark each page of the financial statements as being unaudited.
f) not attempt to detect fraud or error
16. Client’s Responsibilities
16.1 The Client shall:
a) provide TOM with accurate and complete information necessary to complete the Client’s Income Tax returns and any other taxation statements, returns or documents.
b) accept the full and exclusive responsibility for the accuracy and completeness of those returns, statements, records and documents.
c) accept the full and exclusive responsibility for meeting the Client’s tax obligations (including, but not limited to, meeting any relevant payment due dates) and any penalties and / or use of money interest imposed by the Inland Revenue Department for any reason whatsoever, including, without limitation, lateness, errors, or wrong estimates.
d) complete such questionnaires and other procedures as TOM requires for the purposes of eliciting relevant tax information and ensure the accuracy and completeness of such information.
e) monitor and check final tax returns for reasonableness and correctness.
f) provide TOM with accurate and complete information necessary to compile the financial statements.
g) accept responsibility for any failure to supply TOM with relevant records or information.
h) retain the risk of loss or destruction of all records and information supplied to TOM.
i) accept full responsibility for the accuracy and completeness of any assertions in the Financial Statements.
j) attach TOM’s disclaimer when distributing the Financial Statements to third parties and acknowledge that Financial Statements prepared by TOM are for the Client’s purposes only and that TOM will not be liable for any losses, claims or demands by any third person who may rely upon them.
PART III - Web Site Development
17. Web Site Development
17.1 TOM cannot always guarantee to start work immediately on a project but will arrange a date with the client as to when work can commence.
17.2 The project may proceed in stages in line with TOM’s usual development process.
17.3 TOM will commence work once the Client has provided the following: all data, information, logos, designs, graphic and related materials which are to be incorporated into the web site.
17.4 If a change to the web site is requested once a stage has been signed off by the Client then TOM may make a further charge in addition to any quotation or estimate provided.
17.5 During the development process TOM may place versions of the Client's web site on a server in order that the Client may view and comment upon the web site's progress, and approve design concepts and prototypes. When both TOM and the Client agree that the development process has been completed then TOM will invoice the Client for the balance of the Price. TOM may delay publishing a web site pending payment in full.
17.6 TOM provides industry standard encryption of credit card details via SSL certificates and security behind a firewall, but TOM does not accept responsibility for any transactions completed on your website between you and your customers. Without limiting the generality of the this limitation of liability, TOM is specifically not responsible for transactions occurring through any payment gateways on your website, or by customers placing fake orders, or customers providing invalid payment details, or merchants (or their staff) misusing credit card numbers, or any other monetary transaction on a merchant's website. TOM provides SSL forms for credit card payments, but we do not advise their use, and will not be responsible for any misuse or loss of card details obtained by these means.
18. Copyright
18.1 All material, both text and images, supplied by the Client and used in the construction of the 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.
18.2 The copyright for all material provided by TOM, such as HTML code, graphics, photographs and text, but excluding software code, will remain the property of TOM until such time as TOM receives full payment whereupon they will become the property of the Client.
18.3 All software code provided as a part of the web site will remain at all times the property of TOM. 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. 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.
18.4 The parties acknowledge that TOM may accept jobs from other clients to develop web sites with the same or similar functionality as the Client’s web site, and that TOM may replicate and exploit all techniques, structures, designs and individual modules of program code used in the creation of the Client’s web site.
18.5 For any reported bug, you must provide the browser type, website address, page title, and required navigation to reproduce the bug. We will not investigate your problem until we have received that information. We will only provide warranty of service for Internet Explorer, Safari, Chrome and Firefox web browsers. If you require compatibility with other browsers, this testing time will be at your own expense. For some advanced features of our content management system, we will only warranty service for use with Internet Explorer version 6 and above on a Windows machine.
18.6 In addition to these Terms, for domain name registrations of ".nz" domains you are also bound by and you agree to comply with the New Zealand policies published from time to time at http://www.dnc.org.nz/policies. If you have a .nz domain, then, by entering into this agreement with Total Office Management Ltd, you acknowledge that you have read and understood the current policies.
PART IV - Web Site Hosting
19. Web Site Hosting
19.1 All services provided by TOM may be used for lawful purposes only. Transmission or storage of any information, data or material in violation of any New Zealand law is prohibited. This includes, but is not limited to, copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secret or other statute. The subscriber agrees to indemnify and hold harmless TOM from any claims resulting from the use of the service which damages the Client or any other parties.
19.2 The Client agrees that TOM has the right to delete all data, files or other information that is stored in the Client's account if the Client's account with TOM is terminated, for any reason, by either TOM or the Client.
19.3 TOM shall have the right to suspend service to the subscriber at any time, and for any reason, without notice. If such a suspension is to last for more than 2 days, the subscriber may be notified as to the reason.
19.4 Services provided by TOM may be cancelled in writing at any time by either party without penalty provided one months notice is given in writing. TOM reserves the right to amend the Price by giving one (1) months written notice in advance of the effective date of the change.
19.5 TOM makes no warranties of any kind, whether expressed or implied, for the web hosting service. TOM will not be responsible for any damage caused by loss of data resulting from delays, non-deliveries, mis-deliveries, or service interruptions.
19.6 Hosting fees are non refundable. You have the option of monthly, six monthly or annual hosting plans. There will be no refund for any unused portion. You need to notify us prior to your hosting anniversary date if you want to change plans, failing which we are not obliged to make any changes.
19.7 The traffic allowances that apply to your hosting plan are shown on the hosting page. You are required to pay for the costs of any excess traffic on your domain name, and to change to a higher hosting plan in anticipation of a prolonged traffic increase.
19.8 TOM is not responsible for any loss of income or any other loss, direct or consequential, suffered by you as a result of down time or loss of your website, caused by
a. suspension of your hosting for failure to pay your fees on time
b. attacks by hackers,
c. crash of your server, or
d. for any other reason which is outside of the control of Total Office Management Ltd.
Total Office Management Ltd will use its best endeavours to provide a minimum of 99.9% availability of your website. If you receive less than 99.9% uptime over a 3 month period, we will give you a hosting credit on a pro rata basis of 10% reimbursement per 1% outage
19.9 Total Office Management Ltd provides offsite backups, and will restore all websites free of charge in the event of a major catastrophe. However, fees will apply to restore individual websites or data due to customer error or non payment or non communication.
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