1. Relationship of the Parties
The parties intend that an independent contractor relationship will be created by this contract, and that no partnership, joint venture or employee/employer relationship is intended or implied.
2. Project Process
2.1 Avela Design cannot always guarantee that work will begin immediately on a project, but will arrange a date with the Client as to when work can commence.
2.2 Work on the project will commence, provided that the following has been supplied by the client;
a) 50% deposit,
b) Final data, information, logos, designs, graphic and related materials to be incorporated into the website ready for publication, prior to the design call. Any further material supplied at a later date may incur an additional charge.
2.3 Once both parties agree that the website meets the criteria agreed upon during the project process, the project balance will be invoiced.
2.4 In all cases, the website launch will be delayed until full payment for the web design project has been received.
3. Acceptance Testing and Approval
3.1 The Client will review and test the website within 2 weeks of having received the website preview link. Should the client report any bugs found on the website, these will be fixed. The Client will repeat the review and test process. This process will continue until the website passes the acceptance test.
3.2 Additional or changed functionality / content may be requested at any time during the project process, however this may incur additional costs. Avela Design will provide a time and materials quote before proceeding with any work which is additional to the original project proposal.
3.3 The website will be designed and tested to operate on mainstream PC and Mac web browsers Design and development services will not support outdated / unsupported browsers.
4. Copyright
4.1 All material supplied by the client and used in the construction of the website, will remain the Client’s property and be considered free to use without fear of breach ing copyright laws. All such material will be assumed to be the property of the client's.
4.2 The copyright for all material provided by Avela Design, such as HTML code, graphics, photographs and text, but excluding software code, will remain the property of Avela Design until such time as Avela Design receives full payment, whereupon they will become the property of the client.
4.3 All software code provided as a part of the website will remain at all times the property of Avela Design. 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 the system.
4.4 The parties acknowledge that Avela Design may accept jobs from other clients to develop web solutions with the same or similar functionality, and that Avela Design may replicate and exploit all techniques, structures, designs and individual modules of program code used in the creation of the web solution.
5. Terms of Payment
5.1 Unless otherwise agreed upon, a 50% invoice will be provided on acceptance of the proposal or quote. This invoice must be paid before the project can commence.
5.2 If the parties have agreed upon a Payment Plan, where the project price is paid over 4 instalments or more, the first instalment will be invoiced to the client upon acceptance of the quote or proposal.
5.3 Once the project is complete and approved by the client the final instalment, whether 50% or other, will be invoiced. Payment for this invoice shall be made within 7 days of the date of issue of the invoice unless otherwise arranged.
5.4 If we are forced to hand your account over to a debt collection agency for collection you will be liable for any collection costs incurred.
6. Maintenance
6.1 Avela Design provides maintenance services for its clients; however any maintenance or updates are outside the scope of the design project. When updates are required, Avela Design will provide time and materials based quotes for this work. If a Service Level Agreement is in effect, clauses relating to support services will be applicable.
7. Validity of the Agreement
7.1 Either party may terminate the agreement on 7 working days’ written notice to the other party.
7.2 If at any point during the project process a client wishes to cancel, they may do so but an amount that Avela Design judges to be proportional to the amount of work completed on the project will be invoiced.
7.3 Avela Design reserves the right to cease immediately without liability to provide the service and to terminate this agreement if the client should go into liquidation or bankruptcy, or if the client fails to meet any obligation in accordance with this agreement.
8. Assignment and Delegation
8.1 Avela Design may assign or transfer its rights and responsibilities under this contract to another party.
8.2 Avela Design may also subcontract the performance of any of its responsibilities under this contract to another party.
8.3 The client may not assign or transfer any of its rights or responsibilities under this contract to anyone else without our prior written consent.
9. Liabilities
9.1 The client agrees that Avela Design will not be liable for any indirect or consequential damages, including but not limited to, loss of profits or for any claim made on the client by any other party, even though Avela Design may have been notified of such damage or claims.
9.2 Avela Design shall not be liable to the client for any loss or damage directly or indirectly arising out of or in connection with any delay in delivery of the goods or failure to perform its obligations under this agreement where such delay is caused directly or indirectly by an act of God, armed conflict, labour dispute, civil commotion, intervention of a government, inability to obtain labour, materials or manufacturing facilities, accidents, interruptions of, or delay in, transportation or any other cause beyond Avela Design's control.
9.3 The client agrees to defend, indemnify and hold Avela harmless from and against any and all claims, losses, liabilities and expenses (including attorneys’ fees) related to or arising out of the services provided by us to you under this agreement, including without limitation claims made by third parties (incl. your customers) related to any false advertising claims, liability claims for products or services sold by you, claims for patent, copyright or trademark infringement, claims due to disruption or malfunction of services provided hereunder (including malfunction of Web site/Software or Internet), or for any content submitted by you for publication by us.
9.4 If, despite the other provisions of this agreement, Avela Design is found to be liable to you then its liability for any single event or series of related events is limited to the fees.
9.5 Due to the public nature of the Internet, all material submitted by the client for publication will be considered publicly accessible. Avela Design does not screen in advance client material submitted to Avela Design for publication. Avela Design’s publication of material submitted by clients does not create any express or implied approval by Avela Design of such material, nor does it indicate that such material complies with the terms of this agreement.
10. Applicable Law
10.1 The Consumer Guarantees Act 1993 may apply to any services we provide to you if you acquire these services for personal, domestic or household use. If this act applies, all rights you may have under it apply in addition to the rights you may have in this agreement. Nothing in this agreement will limit or exclude your rights under this act.
10.2 Where you acquire or hold yourself out as acquiring our services for the purpose of a business, then you agree that the provisions of the Consumers Guarantee Act 1993 will not apply to our service or the provision of any other services to you.
10.3 This agreement shall be deemed to be an agreement made in New Zealand and shall be subject to, governed by and interpreted in accordance with the laws of New Zealand.
11. Waiver
11.1 Failure by any party to enforce any right or obligation with respect to any matter arising in connection with this contract shall not constitute a waiver as to that matter or any other matter either then or in the future. Any waiver of any right or obligation under this contract shall only be of any force and effect if such waiver is in writing and is expressly stated to be a waiver of a specified right or obligation under this contract.
