Terms of Service | NetPotential

Terms of Service

NetPotential endeavours to operate in a customer-focused, fair and reasonable manner at all times and it is part of NetPotential’s philosophy to ensure a great relationship with its clients.  It is, however, important to have certain contractual aspects agreed in order to protect both parties.  Accordingly our services are provided on the following terms.

1.    Interpretation

In these Terms of Business (Terms): Agreement means these Terms, the Letter and any other document attached to or referred to in the Letter; Client means the person or company to whom the Letter is addressed; Estimate means the estimate of the cost of providing the Services, as set out in Schedule A to the Letter; Letter means the letter with which these Terms are provided; Specifications means any requirements or specifications document attached to the Letter; Words with capitalised initials that are not separately defined in these terms have the meanings given to them in the Letter.

2.    Client Website Project

NetPotential will start work on the Project on the date specified in the Letter, unless another date is agreed. NetPotential will commence work once the Client:

  • has paid the deposit referred to in the Letter or the Estimate;
  • has supplied NetPotential with data, information, logos, any supporting designs, graphic and related materials to be incorporated into the Client Website. Any further material supplied at a later date may incur an additional charge; and
  • where applicable, has accepted the hosting terms.

During the Project NetPotential may place versions of the Client Website on one of NetPotential's development servers, so that the Client can view and comment on the Client Website's progress, and approve design concepts and prototypes.

NetPotential may withhold publishing or take down the Client Website without liability to the Client until full payment for the Project has been received.

3.    Acceptance Testing

Once the Client Website is complete, the Client will conduct the acceptance tests on the deliverables within two weeks of installation to ensure that they perform in accordance with any Specifications. If a deliverable does not pass the acceptance test, NetPotential will correct the failure. If during the Project the Client requests additional or changed functionality/content from the deliverables outlined in the Specifications, NetPotential will provide a time + materials quote, which will be in addition to the cost of the Project. The Client Website will be tested on the latest two versions of Edge, Firefox, Chrome and Safari, including the latest versions of default browsers on Android and iOS, at the time of build.

4.    Hosting and Email Marketing Services

Where NetPotential provides Hosting services to the Client, the hosting terms and conditions will apply. These can be viewed here. Where NetPotential provides email marketing services to the Client, the email marketing terms and conditions will apply.

NetPotential may modify the hosting and email marketing terms and these Terms from time to time by posting a change notice or new terms on this website.  The Client’s continued use of the Services after any modification has been posted will constitute the Client’s acceptance of the modified terms.

5.    Copyright

All material, both text and images, supplied by the Client and used in the construction of the Client Website, will remain the Client's property.  The Client warrants that such material is the property of the Client and that NetPotential is authorised to use it without infringing any other person’s rights.  The Client will indemnify NetPotential against any liability it incurs as a result of NetPotential’s use of material provided by the Client. The copyright in all material provided by NetPotential, such as HTML code, graphics, photographs and text, but excluding software code, will remain the property of NetPotential until NetPotential receives full payment, whereupon such material will become the property of the Client. All software code provided as a part of the Client Website will remain the property of NetPotential.  The Client will be granted a multiple use, single site licence to use the software code as part of the Website. The Client may not copy, reverse engineer, decompile, sell or redistribute the software code without NetPotential’s prior written consent. NetPotential may accept work from other clients to develop web solutions with the same or similar functionality to the Client Website.  NetPotential may replicate and exploit all techniques, structures, designs and individual modules of program code used in the creation of the Client Website.

6.    Prices and payment

The price for the Project is as specified in the Estimate but should the Client decide to make design changes once the concept has been signed off, NetPotential may increase the price to take account of any additional work required. If the Client is responsible for any delays in completion of the Project, NetPotential’s final invoice will be deemed payable in full after 60 days from initial start date. Payment is to be made within 10 days of the date of each invoice, unless otherwise agreed by NetPotential. If an invoice is not paid within 90 days and no other arrangements have been agreed to by NetPotential, the invoice will be handed over to a debt collection agency.  In that case the Client will be liable for an additional 15% of the overdue amount and any collection costs incurred. All prices are quoted exclusive of GST.  This tax may not apply to overseas Clients.

7.    Maintenance

NetPotential will charge separately for any maintenance or updates outside the scope of the Project and for fixing bugs in the website code, content management system (DNN/Evoq or nopCommerce) or any third party software modules. If the Client requires an update, NetPotential will provide time and materials based quotes for this work.

8.    Termination of the Agreement

Either party may terminate the Agreement on giving 14 days' prior written notice to the other party. NetPotential may suspend the Services and/or terminate the Agreement immediately if the Client: (a)    goes into liquidation or receivership or enters into any composition with its creditors; or (b)    breaches any of its obligations under the Agreement and fails to remedy the breach within 5 days of receiving notice of the breach. If the Agreement is terminated before completion of the Project, the Client will pay an amount proportional to the amount of work completed by NetPotential up to the date of termination.

On termination of this Agreement NetPotential will, at the Client’s request and expense and subject to the Client paying NetPotential an amount proportional to the amount of work completed as at the date of termination (as set out above):

(a)   if the Project is complete, grant the Client a perpetual, non-transferable licence to use one copy of the website root and database files created by NetPotential but only as part of the Client’s website. The Client will not, and will ensure that any third party does not, copy, reverse engineer, decompile, sell or redistribute the software code or any component of the Client Website without NetPotential’s prior written consent. All of Client’s obligations in clause 5 of this Agreement in respect of the NetPotential IP will remain in full force and effect following termination of this Agreement; and

(b)   if the Project is not complete but the design of the Client Website is complete, NetPotential will provide the Client with a copy the final design of the Client Website.

9.    Warranties

NetPotential warrants that all Services will be performed in a professional manner, to the Client’s reasonable satisfaction and will conform to best practice and professional standards.

NetPotential will provide a 30-day warranty after the website go-live date and rectify any bugs or technical issues identified with the agreed design and/or functionality at no additional cost, during those 30 days.

Except as expressly provided in these Terms all representations or warranties (statutory, express or implied), except any which may not lawfully be excluded, are expressly excluded, including the implied warranties of merchantability and fitness for a particular purpose.  

10.    Limitation of Liability

NetPotential will not be liable for any indirect or consequential damages, including loss of profits, or for any claim made on the Client by any other party, even though NetPotential may have been notified of such claim.

NetPotential will not be liable to the Client for any loss or damage arising in connection with any delay in providing the Services.

In the event of a security breach, unauthorised access, hacking incident, or loss of data, whether or not arising from NetPotential's actions or negligence, NetPotential's liability shall extend to the following:

(a) NetPotential will take immediate and reasonable measures to rectify the situation and mitigate the breach, hack, or loss of data. Any time required on such measures from NetPotential will be billed on time and materials basis. 

(b) NetPotential will not be liable for direct damages incurred by the Client as a result of the security breach, hack, or data loss, included but not limited to the costs of data recovery, legal expenses, and notification to affected parties.

If despite any other provision of the Agreement, NetPotential is found to be liable to the Client then its liability for any single event or series of related events is limited to the fees payable in the three months prior to the date on which such a liability arose.

11.    Assignment and Delegation

NetPotential may subcontract the performance of any of its responsibilities under the Agreement to another party. The Client may not assign or transfer any of its rights or responsibilities under Agreement without NetPotential’s prior written consent.

12.    Miscellaneous

Any notice to be given under the Agreement must be made in writing, by email or by facsimile transmission sent to the registered office or principal place of business of the other party or to such other address as may be notified by either party to the other from time to time.  Any communication by email or facsimile transmission will be deemed to be received when transmitted to the correct email or facsimile transmission address of the recipient. Any other communication in writing will be deemed to be received when left at the specified address of the recipient or on the third day following the date of posting. The Agreement constitutes the entire agreement between the parties and supersedes all previous negotiations, commitments and/or writings.  No alteration of the Agreement will be binding unless it is in writing and executed by both parties.

13.   Jurisdiction

The Agreement is subject to the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts.