0.1: Please find below the standard Terms and Conditions of trade for Sunny Side Up Limited ("Sunny Side Up", "SSU", "we" and "us"). In engaging Sunny Side Up Limited you ("Client") accept the Terms and Conditions contained in this document.
0.2: These standard Terms and Conditions apply to all work undertaken by Sunny Side Up, in addition and subject to any other specific terms and conditions agreed between Sunny Side Up Limited and its clients in writing.
03: Such other terms and conditions, if any, in conjunction with these standard Terms and Conditions are referred to as the "Agreement". They are intended to set out the rights and obligations for each party. Any specific agreements between you and us, as part of the Agreement, will take precedence over these standard Terms and Conditions in the parts that they cover.
0.4: Other definitions used in this document are listed below:
- "Commencement Date" is the date on which the Project Brief is accepted by both parties and the Agreement becomes binding.
- "Acceptance" the moment when the Client has accepted the work (also known as signed off on the work) constitutes acceptance of the terms contained in the Agreement. Going Live means that the work has been Accepted.
- "Going Live" refers to a Website Project that is:
- made accessible on the Internet,
- being used in any type of "real-live setting" for its intended purpose,
- listed as completed in a written notice from us, or
- regarded as completed as agreed by you and us in writing.
- "Deliverables" means the products and services to be provided to you by Sunny Side Up as set out in the Project Brief and agreed to in the Agreement.
- "Additional Services" means any additional services outside of the scope of the Project Brief.
- "Change Request" refers to any material deviation from the Project Brief.
- "Client Material" means any materials provided by you for incorporation in the Deliverables, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text and any other materials that are created by Sunny Side Up specifically and uniquely for you and contained in the final product delivered to you under the Agreement. This includes software, software designs, code, data, technical components, creative designs, images, artwork and text.
- "Intellectual Property" means, in respect of any person, all intellectual property and industrial property and industrial property rights and interests (including common law rights and interests) owned or held by that person, or lawfully used by that person, including, without limitation to:
- patents, trademarks, service marks, copyright, registered designs, trade names, symbols and logos;
- patent applications and applications to register trademarks, service marks and designs
- all formulae, methods, plans, data drawings, specifications, characteristics, equipment, designs, inventions, discoveries, improvements, know-how, experience, software products, trade secrets, price lists, castings, brochures and other information used by that person.
- "Parties" means the Client and Sunny Side Up, unless stated otherwise.
- "Project" means the project to deliver the Deliverables in accordance with the Project Brief.
- "Project Brief" incorporates all correspondence leading up to the Agreement. The main component of the Project Brief may be a the quote, but any communication that was used to produce the quote is also included. For Projects where no quote is provided the Project Brief shows the mutual understanding by both Parties of the work required to be carried out by SSU for the benefit of the Client. Where there are documents that provide conflicting information the most recent communication will take precedence over earlier communications.
- "Sunny Side Up Materials" means any designs, design materials, software, routines, know-how, methodologies, user-interface conventions or design patterns, interfaces to third-party products and other development and design tools (and all enhancements and derivatives thereto) which Sunny Side Up
- (i) developed prior to this agreement or
- (ii) develops during the course of this agreement but which are developed either at Sunny Side Up’s cost or which are not uniquely applicable to the particular specifications, characteristics or functions of the Deliverables.
- "Website" means any web, intranet, mobile application, web application, extranet, or other software development or application work carried out by Sunny Side Up.
1. Project Approach
1.1: For larger projects, the Project may be broken down into several smaller ones. In this case, each smaller project can be referred to as a Project and each will go through the steps set out in this clause (1).
1.2: Before the Agreement is made about services to be provided by SSU for the benefit of the Client, we shall communicate with you in a variety of ways (quotes, meetings, emails, etc...) to determine what you require. The sum of these communications is called the Project Brief. The Project Brief should contain all relevant information and it is up to the client to ensure that SSU is aware of all the relevant information.
1.3: We may use combinations of technology, as we deem appropriate, to develop the Project. We may use employees and third-party contractors, as we deem appropriate, to deliver the project.
1.4: Going live, signing off, or similar is The Acceptance and the end of the project.
1.5: You will provide us with any Client Materials as specified in the Project Brief. Any services required to convert or input Client Materials not set forth in the Project Brief shall be charged as Additional Services. If you wish to depart from the Project Brief by making a Change Request then our standard times and materials rate applies. Alternatively, if requested by the Client, the Parties will, in good faith, agree to additional fees to cover those revisions (charged as Additional Services). The Client has the responsibility to ensure no Change Requests are made without ascertaining their potential costs.
1.6: The Client will have 90 calendar days, or such other time as Sunny Side Up and the Client agree in writing, from the date of Acceptance, to review and request, in writing, bug-fixes for the Project. We will use commercially reasonable efforts to implement such fixes, as far as these are within the scope of the Project Brief. Unless quoted these are charged using our standard time and materials rate.
1.7: If the Client has not made any requests for revisions by the end of 90 calendar days from the Project being accepted then any improvements or changes will require a new agreement.
2. Our website development approach
2.1: Sunny Side Up uses code to improve the online presence and automate processes for its clients. As part of this, we endeavour to provide:
- a. an accurate account of the hours we spend on Projects, or provide a promised functionality for a quoted price; and
- b. best coding practices,
to the best of our abilities.
2.2: We explicitly do not make any guarantees that:
- a. our recommendations or implementations will work as you may envisage,
- b. our software and coding will be error free, and
- c. we will deliver on time.
2.3: You must understand and accept the risks of software development. These risks lie with you. SSU and its clients must try to reduce these risks by engaging in honest, clear and regular communication, clear project goals, reducing speed, and good quality code.
2.4: In working with us, you understand that no web development is perfect, that bugs and errors are the rule rather than the exception and that the world wide web is a fast changing medium where technology is constantly outdated.
2.5: You are aware that Sunny Side Up will use a wide range of Open Source software in your Website and you need to be aware of how Open Source works.
3. intellectual property rights
3.1: The Client Materials you provide to us to carry out our obligations under the Agreement are owned by you. You grant us a licence to modify, reproduce, create derivative works from, and otherwise use such Intellectual Property to provide services or products in connection with the Project Brief.
3.2: All materials including, but not limited to any computer software code, script, programming code, data, information or web-related script developed or provided by us under this Agreement, and any trade secrets, know-how, methodologies and processes related to our products or services, shall remain our sole and exclusive intellectual property, including, without limitation, all copyrights, trademarks, patents, trade secrets, and/or any other proprietary rights inherent in the Sunny Side Up materials.
3.3: Sunny Side Up will not accept liability for:
- any claim of infringement based on the use of a outdated or altered release of Deliverables if the infringement would have been avoided by the use of a up-to-date or unaltered release of the Deliverables, which we have provided to you;
- the unauthorised modification of the Deliverables; or
- the use of the Deliverables in any manner other than those recommended by Sunny Side Up.
3.4: You acknowledge and agree that Sunny Side Up is the sole and exclusive owner of all Intellectual Property in and relating to the Deliverables and that you have no rights in or relating to the Deliverables other than are expressly provided for in the Agreement.
3.5: The provisions of this Clause 3 shall survive the expiry or termination of the Agreement.
4.1: We grant, and you accept from us, an exclusive, non-transferable, perpetual licence to use the Deliverables created by Sunny Side Up for use as, or incorporation into, a website or other software application, as agreed in the Project Brief. Any portrayal or use of the Deliverables that does not take place on a platform that is operated by you for your own business purposes shall be in breach of this Clause 4.1.
4.2: In consideration of the licence to use the Client Materials and Sunny Side Up materials in the Deliverables you agree to pay Sunny Side Up the fees specified in the Project Brief and/or the Agreement.
4.3: You acknowledge that any licence granted by us under this Clause 4 is granted subject to third party licencors (if any).
4.4: The exclusive, non-transferable, perpetual licence only applies to the Client Materials as a whole. Sunny Side Up has the right to use parts of the Sunny Side Up Materials for other projects as it sees fit, as long as it does not do so in demonstrable, direct competition with the Client.
5. Our obligations and acknowledgements
5.1: We make the following warranties to you in respect to the products and services provided under this agreement:
- a. to the best of our knowledge, we have the right to grant the licences in respect of the Deliverables under this agreement to you without violating any rights of any third party;
- b. the Deliverables will, in all substantial respects, conform with the Project Brief, or as otherwise agreed in writing by the parties;
- c. we will use reasonable means to ensure the Deliverables do not contain any known virus or computer software code, routines or devices (other than as provided for in the Project Brief) designed to disable, damage or impair the Deliverables, or other software or data; and
- d. we will fix any errors, bugs, or other oversights free of charge within a period of 30 days from the moment of "Acceptance", but only if these errors prevent the Website from working as intended in the Project Brief.
5.2: Our representation in Clause 5.1 will not apply where you have used the Deliverables in a manner or for a purpose not discussed in the Project Brief or not authorised by us, or where you have made any adaptations, extensions or modifications to the Deliverables.
5.3: The client's sole remedy in the event of Clause 5.1 being breached, at our option, is replacement of the defective Deliverables or refund of the licence fee paid for the Deliverables.
6. Your obligations and acknowledgements
6.1: You acknowledge that we do not transfer any ownership rights of the Deliverables, and you acknowledge that we reserve the rights not expressly granted.
6.2: You are responsible for the use, administration, and management of the Website.
6.3: You acknowledge that we are in the business of web development and that we shall have the right to provide third party services which are the same or similar to the services we provide to you; and to use or otherwise exploit any Sunny Side Up materials in providing such services.
6.4: You agree that the Deliverables comprising of a Website are not warranted to operate on computer systems and networks which do not meet any minimum specifications set out in the Project Brief or common industry standards.
6.5: You confirm that, to the best of your knowledge, you own, or are validly licensed, to provide under the Agreement, all copyright and all other Intellectual Property rights in your Client Materials and our use of your Client Materials will not infringe the Intellectual Property or other rights of any third party or breach any applicable law, statute or regulation.
6.6: You agree to indemnify us against all losses, costs, expenses, demands, or liabilities (including all legal costs and expenses) incurred by us relating to any claim that the provision of your Client Materials, or the use of your Client Materials by us, infringes on the Intellectual Property rights of any third party or any breach of your obligations under this agreement or any wilful, unlawful or negligent act or omission by you.
6.7: You shall ensure that the Client Materials do not contain obscene, threatening or malicious content and that they do not infringe any law, or third party right or which may otherwise expose us to civil or criminal liability. Provision of any Client Materials, which do not satisfy this clause, shall be deemed to be a material breach of the Agreement. Sunny Side Up also reserves the right to terminate the Agreement on the basis of perceived negative social or environmental consequences that may arise from the use of the Deliverables (e.g. we will not assist in the development of pornographic or fraudulent websites).
6.8: Any provision of maintenance and support which is not covered in the Project Brief shall be paid for by you as additional (Additional Services).
7. Disclaimer and limitation of liability
7.1: All software provided by Sunny Side Up Ltd. is provided "as is" and it will not carry any expressed or implied warranties, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
7.2: In no event shall Sunny Side Up Ltd be liable for any direct, indirect, incidental, special, exemplary, or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the use of this software, even if advised of the possibility of such damage.
7.3: We will not be liable for any services or products provided by third party vendors, developers or consultants referred to you by us unless such third party products or services are provided under written agreement between you and us, and then only to the extent expressly provided in those agreements.
7.4: Under no circumstances (including, but not limited to negligence) shall we, or our officers, employees, partners, agents or suppliers, be liable for:
- your reliance on the Deliverables; or
- any direct, incidental, special, consequential, indirect or punitive damages (including loss of use, loss of data, loss of profits, loss of anticipated savings, or loss of goodwill) that result from the use of, or the inability to use, or relating to the Deliverables.
7.5: If you are using the Deliverables for the purposes of business, then you agree that the provisions of the Consumer Guarantees Act 1993 shall not apply to you.
7.6: You agree that the total liability of SSU, our officers, employees, agents, partners or suppliers (together) to you or anyone else using the products or services we provide to you (together) or damages, losses, and causes of action (whether in contract, tort, including negligence, under statute or otherwise) shall not exceed the total cost of providing the Deliverables or $10,000 NZD whichever is the lesser amount.
8. Resolution of disputes
8.1: The parties will use their best endeavours to amicably resolve any dispute between them, which may arise concerning the interpretation of the Agreement or in relation to any matter arising under the Agreement. If the parties cannot settle amicably and in good faith any dispute between them then the party with the claim may submit the dispute to the Disputes Tribunal.
8.2: For the avoidance of doubt, the existence of a dispute will not relieve any party from the requirement to perform its obligations under the Agreement generally, and notwithstanding the dispute, each party will continue to perform such obligations in accordance with the Agreement to the maximum extent possible (while having regard to the nature of the dispute).
9. Breach and termination
9.1: Either party may terminate the Agreement by providing 30 calendar days prior written notice to the other party at any time.
9.2: If either party breaches any term of the Agreement, then the other party shall give notice to the offending party in writing to remedy the breach. If the breach is not remedied within 14 days then either party may, at their discretion, terminate the Agreement.
9.3: If you commit an act of bankruptcy, or, where you are a company, if a receiver is appointed or you do anything which would render you liable to be liquidated we may terminate this Agreement immediately upon providing written notice to you.
10. Effect of termination
10.1: If the Agreement is terminated by either party then the following will apply:
- a. any licence granted under or pursuant to the Agreement will end and you will not be authorised to use the Deliverables after expiry or termination of the Agreement;
- b. you agree to pay us for any work carried out up to the date of termination;
- c. you agree to pay us for any unpaid fees arising from your use of the Deliverables up to the date of termination;
- d. you agree to return to us, on our demand, any manuals, specifications, designs or other information relating to the business of Sunny Side Up, or the services or products provided under this agreement;
- e. termination of the Agreement shall be without prejudice to the rights of any party which have accrued prior to, or which arise in connection with, such termination; and
- f. the provisions of the Agreement intended to apply after termination shall continue to apply.
11. General provisions
11.1: Notices to you may be given by email or by regular mail.
11.2: We will not be liable for any failure to perform the Agreement if it is due to a cause beyond our reasonable control.
11.3: The provisions of the Agreement shall not be varied, except by agreement in writing, including email, between the Parties.
11.4: The Parties agree that New Zealand law governs the Agreement and that New Zealand courts have jurisdiction.
12.1: In this agreement, unless the context otherwise requires:
- a. the singular includes the plural and vice versa; and
- b. references to a part, section or clause is a reference to that part, section or clause in this agreement, unless specifically stated otherwise.
12.2: To the extent that there is any inconsistency or conflict between the client specific Agreement and these standard Terms and Conditions, the more client specific part of the Agreement will take precedent.
To follow are some more specific Terms and Conditions that provide clarity to specific situations.
13.1: In many cases, Sunny Side Up will provide a quote as part of the Agreement of a Project. In all cases where no quote is provided, Sunny Side Up will work on an hourly rate (times and materials basis). No matter what expectations, presumptions, or ideas the Client may have about the actual cost of a particular job, if no quote has been agreed on, clearly labelled as a quote by Sunny Side Up then the Client agrees to pay Sunny Side Up for any agreed work carried out on a time and attendance basis.
13.2: The quote may not be amended in any way without agreement from Sunny Side Up. That is, a quote can only be accepted in its entirety and not in parts.
13.3 The Client will need to keep all quotes confidential.
14.1: Every website needs a host (a place where it is stored and from where it can be accessed by users through the Internet). In most cases, Sunny Side Up recommends hosting companies and liaises in the relationship between the hosting company and the Client. However, under no circumstances will Sunny Side Up take responsibility for any problems that arise from actions of the actual hosting provider even if the Client pays Sunny Side Up for the hosting. The reason for this are that:
- a. Sunny Side Up pays the hosting fee to the actual hosting company on the Client's behalf, and
- b. any surplus income from the hosting fee is solely used to pay for the transaction and liaising service provided by Sunny Side Up.
14.2: The Client is required to select a hosting company in agreement with Sunny Side Up.
14.3: From time to time, Sunny Side Up will carry out maintenance on the Client's hosting platform (e.g. apply security patches). This means that the Client's website may be offline during that time. What is more, some piece of code that worked at various periods of time, may stop working because of new server settings and security requirements. It is the sole responsibility of the Client to regularly check if the Website is still working as intended and to contact Sunny Side Up immediately if there are any doubts about this. All websites will go down from time to time and the Client accepts this as business as usual. Sunny Side Up will take reasonable steps to minimise these down-times.
14.4: Sunny Side Up reserves the right to disable the Client's hosting for the sole reason of hosting invoices not being paid by their due date. We highly recommend all our clients to set up an automatic payment for hosting to avoid such situations.
14.5: Only limited back-up facilities are provided for Sunny Side Up hosted websites. In practice that means that the website can, in most cases, be rolled back, between one and a few days. That is, if all the content is deleted today then, in most instances, we may be able to recover the state of the website yesterday. If you want to be very sure about having proper back-ups then there is only one solution: make your own back-ups, store them on a separate device in a different place, and test the back-up and back-up systems regularly. Sunny Side Up will not accept liability for any direct or indirect losses caused by back-up failure of any kind.
15. Deliverables and timeline
15.1: Sunny Side Up shall contact via email or meet with the Client on a mutually acceptable schedule for progress reports, problems encountered, and recommended changes relating to the development and testing of the Website.
15.2: Sunny Side Up will make every effort to meet deadlines or let the Client know as soon as possible if it is clear that these will not be met. However, failure to meet deadlines does not mean that Sunny Side Up has broken the Agreement. It is in the nature of software projects for there to be delays and they should be expected.
16. The Client is responsible for uploading content
16.1: Unless agreed otherwise, the Client is required to provide and insert all content on the Website, using Content Management Systems provided by Sunny Side Up.
16.2: Working with a Content Management System requires a fair amount of computer literacy. For Clients who come to Sunny Side Up with little or no web or computer knowledge Sunny Side Up can also provide training but additional costs will be associated with this.
16.3: For content changes that cannot be achieved by the Client using the provided Content Management System, the Client may request Sunny Side Up to make the changes. Sunny Side Up reserves the right to charge its standard hourly rate for this work.
17. Who is at fault?
17.1: Websites usually are made up of many layers of code (in most cases this will include code from Linux, Apache, Mysql, PHP, and the Silverstripe CMS). In most cases Sunny Side Up only applies the top layer, amalgamating thousands of lines of code written by others into a website. It will often be impossible for the Client to determine where a problem lies (a mistake made by Sunny Side Up or a fault in the underlying code) and so it will have to rely on advice from Sunny Side Up or invite a third-party to determine the cause of a problem. Sunny Side Up will communicate about these matters with the Client in an open manner and Sunny Side Up welcomes any questions towards finding the underlying causes of bugs and errors.
18.1: While Sunny Side Up will take reasonable steps to ensure that any Deliverables are free from faults, there is a significant chance there will be some errors (bugs) in the Deliverables. Sunny Side Up does not employ a tester as a matter of course.
Unless specified otherwise, the Client will be required to carry out and be fully responsible for all testing. This means that the Client will need to set aside some time and resources to make sure the Website is working according to the Project Brief. Alternatively, Sunny Side Up can provide testing services to the Client, both in terms of technical functionality and user experience. These services shall be considered as Additional Charges, unless contracted otherwise.
19. Browser compatibility
19.1: The website shall function to industry standards on the latest version of the most popular browsers:
- Firefox, and
19.2: Websites can be viewed in many different ways: on a computer monitor, a mobile phone, a TV screen, as a printout, on an i-pod, and so on. Unless agreed otherwise, Sunny Side Up will only ensure that the Client’s Website will work on an average sized monitor for desktop, mobile and tablet.
19.3: If the Client requires the Deliverables to function on any other platforms or browsers (e.g. iPhone 5s, iPad 4, or a specific Nokia phone) then this must be specifically requested and documented in the Project Brief. These are Additional Services and additional charges will apply.
19.4: We specifically exclude the outdated Internet Explorer browser from the list of modern browsers, because they are no longer developed and/or supported by Microsoft.
20. Payment, fees and licensing
20.1: Unless agreed otherwise, half of the quoted cost for each Project (part) is due before the Project starts. The remaining amount is invoiced at completion of the same Project.
20.2: Sunny Side Up reserves the right to request progress payments at any time during a Project, up to, but not exceeding all work carried up to that time.
20.3: Sunny Side Up invoices are due within 21 days of invoice date unless agreed otherwise.
20.4: Billable expenses (e.g. purchase of a Font for the Client, premium module, PDF converters) are invoiced at the time they are incurred.
20.4: Every invoice paid after its due date will incur a NZ$25 administration fee and 2% of the original invoice in interest and service fees, per month overdue.
For example, if an invoice is three months overdue, the total late fees are: NZ$25 + 3 x 2% of [total invoice sum excluding GST]. If the total cost of an invoice, excluding GST, is $100 and the invoice is paid three months after its due date then the total late payment fees and penalties are: $25 + 2 + 2 +2 = $31 + any applicable GST.
20.5: Late payment penalties and administration costs are charged using additional invoices and these late payment invoices can also attract late payment penalties in their own right.
20.6: The Client will be held responsible for all collection and legal fees that may be necessitated to collect payment of an invoice. Over and above the standard late payment penalties and interest.
20.7: Sunny Side Up reserves the right to remove the Client’s Website from public viewing until all invoices have been paid in full.
20.8: The Client is required to pay Sunny Side Up in a manner that is acceptable to Sunny Side Up. Sunny Side Up reserves the right to charge for any payment transaction costs.
20.9: Any questions and disputes about invoice amounts need to be raised by the client before the due date of the invoice. All invoices are deemed to be accepted in full at their due date.
21.1: Software is a cooperative effort rather than an individual achievement and, in this light, Sunny Side Up will try to work with the Client to achieve the best results. The more the Client works in partnership with Sunny Side Up, the more the Client will get out of their engagement.
21.2: Sunny Side Up is committed to helping the Client become more successful in whatever they do. Similarly, the Client will be expected to provide a supportive environment for Sunny Side Up in which we can deliver our services in the most efficient, fun and effective manner.
21.3: An important part of effective partnership is clear and open communication. Both Parties are expected to communicate in good faith.
22. Assignment of work
22.1: Sunny Side Up reserves the right to assign other designers or technical experts to the project to ensure quality and on-time completion. All contractors will be vetted by Sunny Side Up for their suitability and reliability to carry out the work and Sunny Side Up will take responsibility for their actions, as far as this is required under New Zealand law, while performing the contracted work.
23. Confidentiality and open source code
23.1: Sunny Side Up acknowledges and agrees that sensitive source material, technical and marketing plans, and other sensitive business information provided by the Client and developed in the course of a project are confidential information, unless agreed otherwise. Sunny Side Up will take all practicable steps to maintain this confidentiality. As a rule of thumb, basic coding solutions are not considered to be confidential (see Clause 23.2). Similarly, the Client will treat as confidential to Sunny Side Up pricing, trade secrets, working methods, coding plans, and any other information; whether or not dissemination could aid Sunny Side Up competitors or whether or not dissemination may reduce Sunny Side Up’s income potential.
23.2: While confidentiality is important, Sunny Side Up is also a supporter of Open Source Software Development. Many of the Sunny Side Up clients have benefited from this approach. Therefore, at our discretion, Sunny Side Up may publish non-sensitive, generic parts of any Project as Open Source Code. This mainly happens, where, for example, the code can be used for a wide variety of uses not relating to the Project at hand, or in situations where peer review and peer contribution could aid the future development of the code. Sunny Side Up reserves the right to publish parts of the Project as Open Source Code without seeking permission from the Client.
23.3: Because Sunny Side Up promotes the use and development of open source software, our general rule of thumb is that generic code developed in the course of a project should be placed in the public domain unless there is a good reason not to do so. Clients will benefit substantially from previous open source releases and so, in the same spirit, Sunny Side Up expects all their Clients to provide some level of support to open source software development.
24. Supportive communities
24.1: Sunny Side Up tries to deliver on an (informal) triple bottom line. This means that Sunny Side Up measures its success based on economic, social and environmental impact.
24.2: Sunny Side Up reserves the right to cancel any Agreement for any project that it deems to be adversely affecting its triple bottom line. For example, Sunny Side Up will not be involved in developing websites with deceitful content. Sunny Side Up will notify the Client as soon as we become aware it deems the Client’s Project unacceptable under this condition.
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