These are the terms and conditions of supply of Webhaven in relation to the provision of Software and/or Hosting Services. These terms shall be deemed accepted by our customers upon their placing an order with us:
1. DEFINITIONS
In this document the following words shall have the following meanings:
1.1 "Agreement" means these Terms and Conditions together with the terms of any applicable Quote, Estimate or Specification Documents;
1.2 "Customer" means the organisation or person who purchases services from Webhaven;
1.3 "Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.4 "Quote, Estimate or Specification Documents" means a statement of work, quotation or other similar document describing the services to be provided by Webhaven;
1.5 For Customers in the EU or Denmark "Webhaven" means:
Webhaven International ApS
Bulgariensgade 2
2300 Copenhagen S
Denmark
1.6 For Customers in New Zealand "Webhaven" means:
Webhaven International Limited
18 Montpellier Heights
Whangaparaoa 0932
New Zealand
2. GENERAL
2.1 These Terms and Conditions shall apply to all contracts for the supply of services by Webhaven to the Customer.
2.2 Before the commencement of the services Webhaven shall submit to the Customer a Quote, Estimate or Specification Documents which shall specify the services to be performed and the fees payable. The Customer shall notify Webhaven immediately if the Customer does not agree with the contents of the Quote, Estimate or Specification Documents. All Quote, Estimate or Specification Documents shall be subject to these Terms and Conditions.
2.3 Webhaven shall use all reasonable effort to complete the services within estimated time frames but time shall not be the determining factor in the performance of any services.
2.4 Operating Hours: 09:00 - 17:00 hours, UTC+1
3 FEES AND PAYMENT
3.1 The fees for the performance of the services are as set out in the Quote, Estimate or Specification Documents. Webhaven shall invoice the Customer for the services as detailed therein.
3.2 Invoiced amounts shall be due and payable as detailed within the invoice. Webhaven shall be entitled to charge interest daily on overdue invoices from the date when payment becomes due from until the date of payment at a rate of 2.5% per month. In the event that the Customer's procedures require that an invoice be submitted against a purchase order to payment, the Customer shall be responsible for issuing such purchase order before the services are rendered.
3.3 Webhaven shall not refund any payment unless the amount received exceeds that which is owed to Webhaven at the time of payment, in which case the difference shall be refunded as soon as practicably possible.
3.4 Webhaven reserves the right to transfer any debt to the Customer in connection with any debt collection required for non-payment of undisputed invoices.
3.5 After-hours requests for work, maintenance or repair are not guaranteed, but if agreed will attract a surcharge of 50% of the current base charge rate. Please contact us directly for any enquiries about our current base rate.
3.6 Travel rate is charged at the same as our current base rate.
4 CUSTOMER'S OBLIGATIONS
4.1
To enable Webhaven to perform its obligations under this Agreement the Customer shall:
4.1.1 - co-operate with Webhaven;
4.1.2 - provide Webhaven with any information reasonably required by Webhaven;
4.1.3 - obtain all necessary permissions and consents which may be required before the commencement of the services; and
4.1.4 - comply with such other requirements as may be set out in the Quote, Estimate or Specification Documents or otherwise agreed between the parties.
4.2 The Customer shall be liable to compensate Webhaven for any expenses incurred by Webhaven as a result of the Customer's failure to comply with Clause 4.1.
4.3 Without prejudice to any other rights to which Webhaven may be entitled, in the event that the Customer unlawfully terminates or cancels the services agreed to in the Quote, Estimate or Specification Documents, the Customer shall be required to pay to Webhaven as agreed, damages and not as a penalty, the full amount as set out in the Quote, Estimate or Specification Documents, and the Customer agrees this is a genuine pre-estimate of Webhaven's losses in such a case. For the avoidance of doubt, the Customer's failure to comply with any obligations under Clause 4.1 shall be deemed to be a cancellation of the services and subject to the payment of the damages set out in this Clause.
4.4 In the event that the Customer or any third party, not being a sub-contractor of Webhaven, shall omit or commit anything which prevents or delays Webhaven from undertaking or complying with any of its obligations under this Agreement, then Webhaven shall notify the Customer as soon as possible and:
4.4.1 - Webhaven shall have no liability in respect of any delay to the completion of any project;
4.4.2 - if applicable, the timetable for the project will be modified accordingly;
4.4.3 - Webhaven shall notify the Customer at the same time if it intends to make any claim for additional costs.
5 ALTERATIONS TO THE QUOTE, ESTIMATE OR SPECIFICATION DOCUMENTS
5.1 The parties may at any time mutually agree upon and execute new Quote, Estimate or Specification Documents. Any alterations in the scope of services to be provided under this Agreement shall be set out in the Quote, Estimate or Specification Documents, which shall reflect the changed services and fees and any other terms agreed between the parties.
5.2 The Customer may at any time request alterations to the Quote, Estimate or Specification Documents by notice in writing to Webhaven. On receipt of the request for alterations Webhaven shall, within 5 working days or such other period as may be agreed between the parties, advise the Customer by notice in writing of the effect of such alterations, if any, on the fees and any other terms already agreed between the parties.
5.3 Where Webhaven gives written notice to the Customer agreeing to perform any alterations on terms different to those already agreed between the parties, the Customer shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise Webhaven by notice in writing whether or not it wishes the alterations to proceed.
5.4 Where Webhaven gives written notice to the Customer agreeing to perform alterations on terms different to those already agreed between the parties, and the Customer confirms in writing that it wishes the alterations to proceed on those terms, the Quote, Estimate or Specification Documents shall be amended to reflect such alterations and thereafter Webhaven shall perform this Agreement upon the basis of such amended terms.
6 WARRANTY
6.1 Webhaven warrants that the services performed under this Agreement shall be performed using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices.
6.2 Without prejudice to Clause 6.1, and except as expressly stated in this Agreement, all warranties whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the services to be provided by Webhaven.
7 INDEMNIFICATION
The Customer shall indemnify Webhaven against all claims, costs and expenses which Webhaven may incur and which arise, directly or indirectly, from the Customer's breach of any of its obligations under this Agreement, including any claims brought against Webhaven alleging that any services provided by Webhaven in accordance with the Quote, Estimate or Specification Documents infringes a patent, copyright or trade secret or other similar right of a third party.
8 LIMITATION OF LIABILITY
8.1 EXCEPT FOR SUPPLIER'S INDEMNITY UNDER CLAUSE 7, WEBHAVEN'S LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE IS EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN THE EVENT THAT SUPPLIER HAS ANY LIABILITY TO THE LICENSEE, NOTWITHSTANDING THIS CLAUSE 8.1, WEBHAVEN’S LIABILITY SHALL NOT IN ANY EVENT EXCEED THE AMOUNT OF THE FEES PAID TO WEBHAVEN BY THE CUSTOMER UNDER THIS AGREEMENT
8.2 NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS LICENCE OR OTHERWISE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF DATA OR USE OF DATA OR INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
8.3 CUSTOMER AGREES TO NEVER RELY ON WEBHAVEN SOFTWARE OR SERVICES IN ANY SITUATION WHERE THE LIFE OR WELLBEING OF ANYONE IS KNOWINGLY PUT AT RISK. ANY LIABILITY OR CONSEQUENCE OF SUCH AN EVENT WILL REST SOLELY ON THE CUSTOMER.
9 TERMINATION
Either party may terminate this Agreement forthwith by notice in writing to the other if:
9.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
9.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;
9.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
9.4 the other party ceases to carry on its business or substantially the whole of its business; or
9.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
10 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement will be governed by a separate Software License Agreement.
11 FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, the act or omission of government, highway authorities or any telecommunications carrier, operator or administration or other competent authority, or the delay or failure in manufacture, production, or supply by third parties of equipment or services, and the party shall be entitled to a reasonable extension of its obligations after notifying the other party of the nature and extent of such events.
12 INDEPENDENT CONTRACTORS
Webhaven and the Customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. Webhaven may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer and such engagement shall not relieve Webhaven of its obligations under this Agreement.
13 ASSIGNMENT
The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of Webhaven.
14 SEVERABILITY
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
15 WAIVER
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
16 NOTICES
Any notice to be given by either party to the other may be served by email, fax, personal service or by post to the address of the other party given in the Quote, Estimate or Specification Documents or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmission report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by post shall be deemed to have been delivered in the ordinary course of post.
17 ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written. Unless expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both parties.
18 NO THIRD PARTIES
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
19 GOVERNING LAW AND JURISDICTION
If the customer is a legal business entity OUTSIDE New Zealand, this Agreement shall be governed by and construed in accordance with the law of Denmark.
If the customer is a legal business entity INSIDE New Zealand, this Agreement shall be governed by and construed in accordance with the law of New Zealand.