Terms of service

NetPotential aims to work in a fair, reasonable and customer-focused way, and to build long relationships with its clients. It is still important to agree certain contractual points to protect both parties, so our services are provided on the following terms.

1. Interpretation

In these Terms of Business (Terms): Agreement means these Terms, the Quote and any other document attached to or referred to in the Quote; Client means the person or company to whom the Quote is addressed; Quote means the written proposal or quote NetPotential gives the Client, setting out the Scope, the Fixed Price, the deposit and the payment stages; Scope means the deliverables, features and Specifications described in the Quote; Fixed Price means the price for the Scope set out in the Quote; Change means any work the Client asks for that is outside the Scope; Specifications means any requirements or specifications document attached to the Quote. Words with capitalised initials that are not separately defined in these Terms have the meanings given to them in the Quote.

2. Client website project

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

• has accepted the Quote and paid the deposit set out in it;
• has supplied NetPotential with the data, information, logos, supporting designs, graphics and related materials to be incorporated into the Client Website, as described in the Quote. Material supplied later that changes the Scope is treated as a Change under clause 6; 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 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 carry out acceptance tests on the deliverables within two weeks of installation to make sure they perform in accordance with the Scope. If a deliverable does not pass the acceptance test, NetPotential will correct the failure at no additional cost. If during the Project the Client asks for additional or changed functionality or content, that request is a Change and is handled under clause 6. The Client Website will be tested on the latest two versions of Edge, Firefox, Chrome and Safari, including the latest 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 apply. Where NetPotential provides email marketing services to the Client, the email marketing terms and conditions 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. Changes do not alter the Fixed Price or Scope of a Quote already accepted. 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, changes and payment

The price for the Project is the Fixed Price set out in the Quote. NetPotential will not increase the Fixed Price for work within the Scope, even if that work takes longer than NetPotential expected.

If the Client asks for a Change (for example new features, extra pages or design changes after a concept has been signed off), NetPotential will give the Client a written fixed price and any effect on the timeline before doing the work. The Change goes ahead only once the Client has approved it in writing, and its price is added to the Project.

If the Client is responsible for delays in completing the Project, NetPotential's final invoice will be deemed payable in full 60 days after the start date in the Quote. Payment is due 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 arrangement has been agreed with NetPotential, it may be referred 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. GST may not apply to overseas Clients.

7. Maintenance

Maintenance, updates and fixes outside the Scope and after the warranty period in clause 9 (including bugs in the content management system, such as WordPress, WooCommerce or Shopify, or in third party software modules) are charged separately. NetPotential will give the Client a fixed price for this work before starting, unless it is covered by a hosting, care or retainer plan the Client already has.

8. Termination of the Agreement

Either party may terminate the Agreement by 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, calculated as a share of the Fixed Price.

On termination of this Agreement NetPotential will, at the Client's request and expense and subject to the Client paying NetPotential the amount 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 the Client's obligations in clause 5 of this Agreement in respect of NetPotential's intellectual property 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 of 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 fix 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 a 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, including 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, its liability for any single event or series of related events is limited to the fees payable in the 30 days before the date on which the 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 the Agreement without NetPotential's prior written consent.

12. Miscellaneous

Any notice to be given under the Agreement must be in writing, by email or post to the registered office or principal place of business of the other party, or to such other address as either party notifies the other from time to time. An email is deemed to be received when sent to the correct email 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 is the entire agreement between the parties and supersedes all previous negotiations, commitments and writings. No alteration of the Agreement will be binding unless it is in writing and agreed 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.