1.1. These terms are incorporated into every contract for the provision of Services between Beanstalk and the Customer. The terms stated below shall apply unless stated to the contrary in any other specification, quote, contract, agency or customer purchase order or acceptance document.
1.2. The provisions of any Quote given by Beanstalk together with these terms and conditions shall constitute the entire arrangement between the parties relating to the provision of the Services by Beanstalk to the Customer (referred to as “this Contract”).
2. DEFINITIONS AND INTERPRETATIONS
2.1. In this Contract, unless the context requires otherwise: “Agency” means the person or Company which engages Beanstalk to carry out Services for an end user customer.
“Beanstalk” means Beanstalk Limited.
“BusinessDay” means a day on which registered banks are open for business in Auckland excluding Saturdays, Sundays and public holidays.
“Customer” includes (without limitation) the party that requested the Services from Beanstalk and for the avoidance of doubt and where the context permits, the Agency that contracted Beanstalk on behalf of an end user customer.
“Confidential Information” means any
(a) Relating to the Software or the terms of this Contract; or
(b) Relating directly or indirectly to research or development by accounting for, or the marketing or the business of either party or its suppliers or clients; or
(c) Disclosed by either party to the other on the express basis that such Information is
(d) Which might reasonably be expected by either party to be confidential in nature, provided that where Information relates exclusively to one party, nothing in this Contract shall require that party to maintain confidentiality in respect of that Information.
“Quote” means the written quote given by Beanstalk to the Customer on or prior to the date of this Contract, for the provision of the Services.
“GST” means goods and services tax in terms of the Goods and Services Tax Act 1985, at the rate prevailing from time to time.
“Information” includes (without limitation) the whole or any part of, and all copies or reproductions in whatever form (whether in a visible, electronic or other form) of:
(a) Any intellectual property, including (without limitation) any listings of the source code or object code of the Software, any flow chart representation of the underlying program structure of the Software, any opinion, projection, idea, concept, process, procedure, plan, design, programme, study, know-how, expertise or other such property;
(b) Any document, data, statement, specification, analysis, report, note, notebook, drawing, manual, letter or any other such material.
“Price” means the price of the Services.
“Services” means the goods and/or services specified by the Customer and agreed to be provided by Beanstalk in the Quote or other written agreement between the parties.
“Software” means computer software developed by Beanstalk and supplied to the Customer, pursuant to this Contract and includes:
(a) Every component of that software;
(b) Any copy of that software.
For the avoidance of doubt, Software does not include open source code used by Beanstalk.
“Specifications” includes any information, instructions, designs, material or functional and performance requirements provided by the Customer and includes the functional and operating characteristics of the Software.
“Beanstalk” means Beanstalk Limited.
3.1. Beanstalk agrees to provide the Customer with the Services on the terms contained in this
3.2. Where development stages are specified by the Customer, Beanstalk will use its best endeavours to provide the Services in accordance with those development stages.
3.3. Where the installation of the goods and/or services are specified by the Customer and agreed by Beanstalk, Beanstalk will install and test the Services at the Customer’s location.
3.4. When specified by the Customer and agreed by Beanstalk, Beanstalk will provide an appropriate manual for the ongoing operation of the Services.
3.5. When specified by the Customer and agreed by Beanstalk, Beanstalk will give the Customer’s nominated personnel training on how to operate the Software, website or other services provided by Beanstalk pursuant to this Contract. Beanstalk will provide the first three hours at no cost to the Customer. All additional training will be charged by Beanstalk at its usual training rate specified from time to time.
4. QUOTES AND SPECIFICATIONS
4.1. All requests for Services must be made in writing. Beanstalk will not be liable for any errors or omissions arising from an oversight or misrepresentation of verbal instructions by the Customer.
4.2. Quotes/Estimates shall be based on specifications supplied by the Customer at the time of estimating. Quoted times given by Beanstalk are estimates giving an indication of the time involved to complete the proposed work and these may change with extra client specifications.
Where the quote is to be exceeded Beanstalk will immediately notify the customer and issue a revised estimate and obtain acceptance in accordance with clause
4.3. Acceptance by the Customer in the form of a customer purchase order of Beanstalk’s quoted costs is required before Beanstalk will commence work.
4.4. The Customer must inform Beanstalk of any changes to the Specifications and/or content of the project in writing, and Beanstalk may increase costs as a result. Beanstalk will keep the Customer informed of any changes to the Price and as per clause 4.2, where the quote is to be exceeded Beanstalk will immediately notify the customer and issue a revised quote and obtain acceptance in accordance with clause 4.3.
4.5. The Customer is responsible for providing relevant, clear and correct Specifications and supporting material requested by Beanstalk in the formal quote, to enable it to provide the Services. If required by Beanstalk, then the relevant material should be provided as digital files.
4.6. A failure by the Customer to deliver clear and/or correct Specifications and/or material to Beanstalk on time may delay delivery of Services. Once Beanstalk has completed the requested services
as specified in the quote, the final balance payment will still need to be made, even if the site is not yet live because the client has not delivered material.
4.7. If a Customer requires additional or changed functionality from the deliverables outlined in the Specification, during Beanstalk’s completion of the Services, then Beanstalk will provide an
additional quote for that work which will be payable in addition to the initial Quote.
5. PRICE AND PAYMENT
5.1. The Price for the Services is the rate specified in the Quote (except were modified in accordance with this Contract). Prices are in New Zealand dollars unless otherwise stated.
5.2. The Price is exclusive of GST unless otherwise stated.
5.3. Quotes given by Beanstalk to the Customer may be withdrawn at anytime. If Quotes given to the Customer are not accepted within 30 Business Days then the Quote will be null and void.
5.4. Beanstalk shall issue an invoice from time to time for the Price of the Services. The Customer shall pay the amount specified in such invoice no later than the 20th of the month following the date of the invoice.
5.5. Where a Customer accepts Beanstalk’s urgency rates, the Price for the Services will be payable on completion of the Services.
5.6. Where a Customer agrees for Beanstalk to
commence services, the Price for the Services will be payable as follows: (unless agreed otherwise)
(a) A deposit of 50% is to be paid to Beanstalk
on signing of this Contract;
(b) The balance will be due when the work is completed or after 30 days whichever comes first.
(c) work is considered complete when Beanstalk has fulfilled the design and content requirements in consultation with the client.
(d) Beanstalk will act resaonably assisting the client with extra content or tweaks but
payment will still be due as per the terms of the final invoice.
(e) The monthly Hosting fee as described in the Quote is due 12 months in advance only in full with the balance payment.
(f) Leased Websites are for a minimum period of 12 months only and according to the monthly price agreed Beanstalk is entitled to any balance owing in the event of default before the 12 month period is over.
(g) Domain names for Leased Sites must be in the control of Beanstalk, although in the Registrant will be in the clients name.
(h) Client has the option to buy the Leased website for 50% of the original price after 12 months.
6.1. All overdue amounts payable by the Customer to Beanstalk shall (without prejudice to any other right or remedy of Beanstalk) will bear reasonable payment penalties in accordance with current standard business overdraft rates.
6.3. In the event of default by the Customer of a term of this Contract, Beanstalk reserves the right to discontinue the Service(s) provided to the Customer including, where applicable, the right to shutdown the Customer’s website. If Beanstalk disconnects the Customer’s Service(s) or shuts down the Customer’s website because of a breach of this Contract by the Customer, then a $100 reinstatement fee will be payable to Beanstalk to reactivate the Service(s) or reconnect the website.
6.4. If the Customer is in default then Beanstalk reserves the right to send the overdue account to a collection agency or to issue proceedings against the Customer or Agency for any amounts due and unpaid. Any
expenses, disbursements, legal costs, debt collection costs or any other cost incurred by Beanstalk in the enforcement of any right or obligation under this contract shall be paid by the Customer.
6.5. The Agency acknowledges that Beanstalk will be entitled to recover the Price from the Agency regardless of whether the Agency has been paid by its end user customer for the Services.
7. INTELLECTUAL PROPERTY AND SOFTWARE LICENCE
7.1. All material both text and images supplied by the Customer and used in construction of the Customer’s Web site, will remain the Customer’s property. All such material will be assumed to be the property of the Customer and free to use without fear of breach of copyright laws. If the customer is not the actual owner of the copyright, the Customer hereby indemnifies Beanstalk for any claims made against Beanstalk by those copyright owners.
7.2. Except where open source code is used, software codes provided as a part of the Customer’s website or used in the development of the Customer’s Software will remain at all times the property of the Customer. The Customer may sell, redistribute or sublicense the Software code.
7.3. The Customer grants Beanstalk irrevocable right to use the Software code without charge.
7.4. Notwithstanding any other provision contained in this Contract, if any new generic or general business inventions, designs or processes evolve in the performance of the Services, all intellectual property rights in such new inventions, designs or processes shall be the property of Beanstalk unless otherwise agreed in writing by Beanstalk. However, Beanstalk shall obtain the Customer’s consent (which shall not be unreasonably withheld) if Beanstalk wish to use such new inventions, designs or processes for a purpose other than the provision of the Services to the Customer and the use of such inventions, designs or processes for that purpose will significantly adversely affect the Customer.
8. CONFIDENTIAL INFORMATION
8.1. Each party shall maintain as confidential at all times, and shall not at any time, directly or indirectly:
(a) Disclose or permit to be disclosed to any person; or
(b) Use for himself or herself; or
(c) Use to the detriment of the other party, any Confidential Information except:
(i) As required by law; or
(ii) As is already or becomes public knowledge, otherwise than as a result of a breach by the party disclosing or using that Confidential Information or any provisions of this Contract;
(iii) As authorised in writing by the other party; or
(iv) To the extent reasonably required for the performance by either party of that parties obligations under this Contract.
9. CUSTOMER ACTIVITIES
9.1. The Customer must not transmit on or through any of Beanstalk’s Services, any material that Beanstalk considers unlawful, obscene, threatening, abusive, libelous, or encourages conduct that would constitute a criminal offence, or give rise to civil liability, or otherwise violate any local, national or international law.
9.2. The resale of Beanstalk’s Services by the Customer is not authorised, unless specifically approved by Beanstalk.
10. WARRANTIES AND LIMITATION OF LIABILITY
10.1. All warranties implied by customary practice, at law or under statute are excluded to the extent legally permitted except for an implied warranty will exist that work performed by Beanstalk will be fit for the purpose specified and agreed in writing between the parties.
10.2. Beanstalk does not express or impliedly guarantee that the Services supplied in accordance with the Customer’s Specifications are suitable for the Customer’s purpose. Subject to the above Beanstalk will advise the customer if it believes the specifications are not suitable for the customers purposes as soon as it becomes apparent to Beanstalk that the specifications are not suitable for the Customers purposes.
10.3. In providing the Services to the Customer, Beanstalk will not be liable for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind suffered by the Customer, howsoever caused, including without limitation any loss caused by a shut down pursuant to clauses 6.3 or 9.2 of this agreement.
10.4. If Beanstalk is in breach of this Contract then its total liability to the Customer and any other third party is limited to two times the Price for the Services that has actually been paid by the Customer up to and including the alleged or actual breach.
10.5. The Customer indemnifies Beanstalk for any liability incurred by Beanstalk arising from or relating to a breach of this Contract by the Customer.
10.6 Beanstalk will not accept liability for any server outages including website or email downtime. Compensation is not offered
10.7 Unforseen and intangible extra costs involved to maintain a particular or quoted service that are not the fault of Beanstalk will not be covered by Beanstalk. These may include things such as spam email attacks or malware infecting a clients website or email.
11. CANCELLATION AND SUSPENSION
11.1. Both parties reserve the right to cancel the Service(s) at 10 business days notice.
11.2. If either party defaults in the performance of any of its obligations under this Contract, the party not in default may give written notice to the defaulting party specifying the details of the default (“Default Notice”). If the default is not remedied within 5 Business Days of the date the defaulting party receives the Default Notice, the party not in default may cancel this Contract by advising the defaulting party in writing that the Contract has been cancelled.
11.3. If Beanstalk initiates its right of cancellation and the Customer is not in breach of this Contract, then Beanstalk will refund any fees paid in advance by the Customer on a pro-rated basis.
11.4. The Customer does not have a right to a refund of prepaid fees if the cancellation of the Services and/or the cancellation of this Contract is a direct or indirect consequence of the actions of the Customer.
11.5. Upon cancellation of this Contract by either Beanstalk or the Customer for any reason, the Customer is responsible for deleting or moving its own host registrations from domain registrar(s) within 10 Business Days of the date of cancellation. The Customer agrees to pay Beanstalk if it is required to de-register the hosts on behalf of the Customer.
11.6. Upon cancellation of this Contract for whatever reason any amount payable by the Customer to Beanstalk under this Contract shall be deemed to have fallen due and payable immediately prior to such cancellation occurring.
11.7. The suspension of any work on the Customers instructions for a period of 10 Business Days or more shall entitle Beanstalk to payment in full for all work in progress at the time of suspension. Beanstalk reserves the right to revise the Quote for the uncompleted portion of the order before re-commencing any work that formed part of the original Services.
12.1. Any functional or creative concepts, ideas, recommendations or designs presented by Beanstalk to the Customer remain the property of Beanstalk until full payment of Services has been received.
12.2. The Customer and Beanstalk will not copy or reproduce any documentation provided as part of the Services except to the extent otherwise authorised in this Contract.
12.3. The Customer will not assign, transfer or sub-licence any of its liabilities or rights under this Contract without the prior written consent of Beanstalk which may be withheld at its discretion.
12.4. Beanstalk cannot assign any of its rights or liabilities under this contract without the the prior written consent of the customer (which cannot be unreasonably or arbitrary withheld).
12.5. The Customer may grant to Beanstalk the right to use the name of the Customer, and related product(s) or service(s) or a description of the Services provided, in Beanstalk advertising,
publicity, or promotions. Approval will be granted on a case by case basis, the customer reserves the right to withhold approval for any reason.
12.6. This Contract can only be amended or supplemented in writing signed by representatives of both parties.
12.7. If any provision of this Contract is or becomes invalid or unenforceable, that provision shall be deemed deleted from this Contract and such invalidity or non-enforceablity shall not
affect the other provisions of this Contract, all of which shall remain in full force and effect to the extent permitted by law, subject to any modifications made necessary by the deletion of the invalid or unenforceable provisions.
12.8. The laws of New Zealand govern this Contract and the parties submit to the non-exclusive
jurisdiction of the New Zealand courts in respect of all matters relating to this Contract.
12.9. The parties will meet and discuss in good faith any dispute between them arising out of this Contract. Neither party may require arbitration or issue any legal proceedings (other than urgent injunction relief) in respect of any dispute unless that party has first taken all reasonable steps to resolve the dispute in good faith with the other party.
13.0 Compatibility of websites to web browsers and mobile platforms is based on W3C Web Standards and we support our sites according to this. We cannot guarantee website compatibility on browsers that do not correctly adhere to W3C standards. Internet Explorer will be supported to version 9.0 and above only, we can support other versions at extra cost.
13.1 Due to the huge diversity of mobile handsets and tablets complete uniformity of design and usability cannot be guaranteed as exactly the same.
14. EMAIL AND SECURITY
14.1 Beanstalk will provide free email
addresses with each hosting account but this does NOT include time for setting up email addresses client side. This is chargeable.
14.2 Beanstalk recommends PC Experts or similar company install a dedicated email service for your company.
As you browse [company website], advertising cookies will be placed on your computer so that we can understand what you are interested in. Our display advertising partner, AdRoll, then enables us to present you with retargeting advertising on other sites based on your previous interaction with [company website]. The techniques our partners employ do not collect personal information such as your name, email address, postal address, or telephone number. You can visit this page to opt out of AdRoll’s and their partners’ targeted advertising.