Foundation Design – The Fine Print
Foundation Design Terms & Conditions
Cost estimates: Foundation Design’s written cost estimates will be deemed to interpret the Customer’s written and verbal instructions. Customers are accordingly advised to exercise due care and attention when checking cost estimates before any further work proceeds. (The term cost estimate includes estimates for the purpose of these terms and conditions.) Foundation Design will endeavour to absorb minor costs resulting from the additional scope of work. Where this is not possible, variations will be agreed prior to the commencement of any work and charged at an agreed hourly rate (ex GST).
Taxes: In addition to any other consideration payable by the Customer under these terms and conditions, the Customer shall pay to Foundation Design all goods and services tax or charge imposed by the Government (or any statutory or regulatory authority) payable by Foundation Design resulting from the supply of any goods or services to the Customer.
Acceptance: Unless a cost estimate is accepted in its existing form within 30 days from the date on which it is given it will be deemed to have been withdrawn. Cost estimates may be withdrawn by Foundation Design at any time by notice in writing. A 30% deposit is required from all new customers before commencing work.
Alterations: Cost estimates are based on original specifications. If through the Customer’s error or change of mind additional work is involved, that additional work will be charged at current rates.
- Customer corrections on & after first proof including any alterations in style;
- all resetting in making the requested corrections;
- all costs related to the requested alterations.
Errors: Foundation Design will not be liable in any way whatsoever for errors or omissions arising from a Customer’s verbal instructions, or where a proof has been submitted to and approved by the Customer.
Experimental orders: Work prepared in an experimental way at the Customer’s request will be considered an order and charged to the Customer. Sketches and concepts submitted by Foundation Design on a speculative basis will remain Foundation Design’s property and may not be used by the Customer (nor will any idea obtained from Foundation Design be used) except for compensation to be determined by Foundation Design.
Claims: Any complaint by the Customer in respect of goods supplied by Foundation Design must be made in writing within 10 days of receipt of the goods. After this time no claim will be recognised by Foundation Design and the Customer will be deemed to have accepted the goods.
Ownership of Material: Prior to payment in full, FoundationDesign retains ownership of all material produced. Following payment in full, unlimited use rights are granted.
Electronics storage: While all work completed is archived and stored electronically on hard drives, Foundation Design takes no responsibility for the safe preservation of that material. If Foundation Design agrees to duplicate or transfer stored electronic material for or to the Customer, Foundation Design may charge the Customer fees for these services. Discs and tapes supplied by the Customer remain the property of the Customer and, unless otherwise instructed in writing, Foundation Design will assume that the discs and tapes are a duplicate copy of the original.
Customer property and property supplied: All property of the Customer which is held by Foundation Design on the Customer’s behalf will be held at the Customer’s risk. Where materials or equipment are supplied by the Customer, Foundation Design will use all reasonable endeavours to secure good results from the use of those materials or equipment. However, Foundation Design does not accept responsibility for sub-standard work caused by defects in or the unsuitability of any materials or equipment supplied by the Customer. If any change or correction is necessary in order to supply properly finished work, the additional work will be at the Customer’s expense. Where the Customer supplies materials or equipment, adequate supplies must be furnished to cover spoilage.
Displaying Work: Please inform us if you have any objection to FoundationDesign displaying your work on our website on completion and following your own public release. We will respect any need you have for confidentiality.
Urgent delivery: If the Customer requests an urgent delivery and that delivery requires overtime or other additional costs, those additional costs will be at the Customer’s expense.
Cancellation of orders: Orders can not be cancelled except upon terms which will fully compensate Foundation Design for all expenses incurred or to be incurred by Foundation Design in connection with those orders and fully protect Foundation Design against any loss which Foundation Design may suffer in connection with those orders. Should an order be cancelled, work done to date will be charged at an hourly rate, as recorded in FoundationDesign’s time-sheets.
Suspended work: The suspension of any work for a period of 30 days will entitle Foundation Design to immediate payment in full of the portion of the work completed.
Liability: Foundation Design will not be liable for any indirect or consequential loss suffered by the Customer including without limitation, loss of profit, loss of revenue or loss of goodwill. To the extent permitted by law, all warranties, conditions and guarantees, whether express or implied by statute, law or otherwise, do not apply to any goods or services supplied by Foundation Design to the Customer. Where the Customer is acquiring goods or services for business purposes, Foundation Design and the Customer agree that the Consumer Guarantees Act 1993 will not apply.
Risk & ownership of goods: Risk of any loss, damage or deterioration of or to the goods passes to the Customer at the company gate. Title in the goods supplied by Foundation Design to the Customer will not pass to the Customer until the Customer has discharged all outstanding indebtedness to Foundation Design in respect of the goods and other monies owing. If the Customer makes a default in payment for the goods or becomes insolvent, bankrupt, has a resolution passed for its liquidation or has a receiver or manager appointed over all or any of its assets, the Customer grants to Foundation Design and its agents an irrevocable licence to enter without notice onto any premises occupied by the Customer and to remove the goods.
Illegal matter: Foundation Design will not be required to produce any matter which in their opinion may be illegal or defamatory in nature. The Customer undertakes to indemnify and keep indemnified Foundation Design from and against all claims, losses, damages, costs or expenses (including legal costs and expenses) suffered or incurred by Foundation Design as a result of any illegal or defamatory matter produced for the Customer or any infringement of copyright, patents, design rights or other intellectual property rights resulting from any matter produced for the Customer.
Payment: Progress Payments are typically invoiced monthly until the end of the project. Payment for any work, goods or services supplied to the Customer by Foundation Design is due on the 20th of the month following the date of the relevant Foundation Design invoice. The Customer will reimburse to Foundation Design all costs incurred by Foundation Design in collecting any payment which is overdue by the Customer (including all legal or other enforcement costs). Foundation Design may charge interest on any payment which is overdue, and such interest will accrue at the current bank overdraft rate and will be payable in the manner specified by Foundation Design.
Disbursements: Disbursements are excluded from this Cost Estimate. For example (but not limited to) travel charges, courier charges, printing & copying, additional DVDs, video conversion, incurred fees, etc.
Estimates/quotations: Estimates/quotations are valid for 30 days. Quotes do not include domain names or website hosting unless stated. All amounts are in $NZ. All charges exclude GST.
Pre-work Deposit: A 30% commencement fee deposit is required upfront for all new customers.
Credit limit: Foundation Design may impose a credit limit at its discretion and alter the credit limit without notice. Where the credit limit is exceeded, Foundation Design may refuse to supply goods to the Customer or require security in a form satisfactory to Foundation Design.
Force majeure: Foundation Design will not be liable for any failure to fulfil its obligations under these terms and conditions if that failure is due to any cause beyond Foundation Design’s own reasonable control.
These terms to prevail: If there is any inconsistency between these terms and conditions and any order submitted by the Customer, these terms and conditions will prevail.
Web Hosting – The Fine Print
Foundation Design: Web Hosting Terms & Conditions
Foundation Design, under the name of Foundation Web, offers ongoing website hosting and maintenance services.
The following web hosting terms and conditions apply to Foundation Design’s [under the name of Foundation Web] web hosting services. For other services, including design services, please refer to Foundation Design’s Terms & Conditions above.
By using Foundation Design’s web hosting services, you are agreeing to the following terms and conditions.
All services provided by Foundation Design may be used for lawful purposes only. Transmission or storage of any information, data or material in violation of any New Zealand or International law is prohibited. This includes, but is not limited to, copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secret or other statutes. The subscriber agrees to indemnify and hold harmless Foundation Design from any claims resulting from the use of the service that damages the subscriber or any other parties.
- NOTE: Pornography and sex-related merchandising are prohibited on any Foundation Design server. Foundation Design will be the sole arbiter as to what constitutes a violation of this provision.
- NOTE: Spamming, or the sending of unsolicited email, from a Foundation Design server or using an email address that is maintained on a Foundation Design machine is STRICTLY prohibited. Foundation Design will be the sole arbiter as to what constitutes a violation of this provision.
Provision of Third-party Services
Components of Foundation Design’s web hosting services are provided by third parties. Foundation Design takes no reasonability for any interruption of service caused by actions or inactions of these third parties.
At the time that you sign up for Foundation Design’s web hosting services, you must select a website hosting plan from those offered. Each website hosting plan comes at a different cost and offers a different level of service. The hosting plan you select will/may determine the:
- disk space (web files, email and database);
- maximum monthly level of traffic usage before incurring extra traffic costs;
- number of domains, sub-domains and domain aliases;
- MySQL databases;
- email mail lists,
that are included in the Services.
You must not resell Foundation Design’s web hosting services. Reselling of the Services without our express permission is a breach of this agreement.
Access to Account
Access to your account using the service includes access to your website, and file access (files stored on the website/hosting account).
The Service does not include access to the Service Provider’s hosting account.
You can obtain access to your account through the username and password that Foundation Design assigns to you. It is your responsibility to maintain the confidentiality of your username, password and other account information.
Foundation Web strongly recommends that only Foundation Web staff are given full Administrator capabilities to a hosted site. Repairs to the site and/or its components due to damage caused by ‘user access’ will be viewed as additional services beyond those detailed in Foundation Design’s web hosting service plans for you. Any additional services will be invoiced at our then-current professional rates.
Technical Support and Other Additional Services
The Fees include the provision of normal web hosting and server maintenance services as described in the hosting plans. At your request, we may carry out additional services for you. You must pay for all additional services that you request at our then-current professional rates.
Payment is due upon receipt of invoice. All payments must be in New Zealand dollars and must be able to be withdrawn at a New Zealand bank. Accounts are in default if payment is not received within 30 days after the date of invoice.
Accounts unpaid 30 days after the date of invoice may have their service interrupted. Such interruption does not relieve the subscriber from the obligation to pay the monthly charge. Only a written request to terminate the service relieves the subscriber of obligation to pay the monthly account charge.
Accounts in Default
Accounts in default are subject to a late payment charge of $25 and an interest charge of 1.5% per month on the outstanding balance. If the subscriber defaults, the subscriber agrees to pay Foundation Design its reasonable expenses, including solicitor and collection agency fees, incurred in enforcing its rights under these Terms and Conditions.
All files, information and mail under the account will be preserved for 60 days from the date the payment is due. If the payment is not received after 60 days, all files, information and mail under the account may be deleted. If the subscriber wishes to use the service again, the subscriber must re-apply as a new subscriber. For this, an activation fee will be required.
The subscriber agrees that Foundation Design has the right to delete all data, files or other information that is stored in the subscriber’s account if the subscriber’s account with Foundation Design is terminated, for any reason, by either Foundation Design or the subscriber.
System accounts cannot be transferred or used by anyone other than the subscriber without prior permission from Foundation Design.
Depending on the time frame concerned, the recovery of customer backup data may incur a fee to cover Foundation Design’s time and/or associated costs.
Foundation Design shall have the right to suspend service to the subscriber at any time, and for any reason, without notice. If such a suspension is to last for more than 2 days, the subscriber may be notified as to the reason. Account suspension will not be done without good reason (such as an account been hacked or corrupted).
Services provided by Foundation Design may be terminated at any time by either party without penalty provided one month’s notice is given in writing.
Foundation Design reserves the right to change the rate for the Services by notifying the subscriber 30 days in advance of the effective date of the change.
If the subscriber requests that Foundation Design provide services not set out in this agreement at any time during agreement the subscriber agrees to pay Foundation Design’s then hourly rate for the provision of those services. A free estimate can be provided in advance if requested in writing.
Foundation Design exercises no control whatsoever over the content of the information passing through Foundation Design’s servers.
Foundation Design makes no warranties of any kind, whether expressed or implied, for the service, it is providing. Foundation Design also disclaims any warranty of merchantability or fitness for a particular purpose. Foundation Design will not be responsible for any damage suffered. This includes loss of data resulting from delays, non-deliveries, miss-deliveries, or service interruptions. Use of any information obtained via Foundation Design is at the subscriber’s own risk. Foundation Design specifically denies any responsibility for the accuracy or quality of information obtained through its services.
Exclusion of Liability
- Any defect in the Services shall not entitle the Subscriber to immediate cancellation of this contract.
- Without limiting the other terms of this contract, the Subscriber’s sole remedy against Foundation Design shall be limited to breach of contract and Foundation Design’s sole and total liability for any such claim shall be limited to, at the option of Foundation Design, either the re-supply of the services again or the amount of the current monthly Subscriber’s Levies for the month during which the breach allegedly occurred.
- Foundation Design is not liable for any losses caused by an interruption of services that are a result of third parties (i.e. your ISP or whatever you are using)
- Subject only to Foundation Design’s liability for breach of contract (if any) pursuant to the ‘No Warranties’ clause above, Foundation Design will not be liable to the Subscriber for any claim for breach of contract, breach of statute or breach of duty in tort (including negligence) or for any claim in equity or otherwise at law for any losses or damages whether general, exemplary, punitive, direct, indirect or consequential (including any claim for loss of profits) however caused which may be suffered or incurred by the Subscriber or any third person or which may arise directly or indirectly out of or in respect of this contract or the Services ( or by reason of any act or omission on the part of Foundation Design to comply with its obligations under this contract.
- Notwithstanding anything herein contained or implied no employee, agent or director of Foundation Design will be liable to the Subscriber for any breach of duty of care in contract, tort, equity or otherwise in relation to the performance of obligations under this contract or in relation to the subject matter of this contract.
- To the maximum extent permitted by law all terms, warranties or representations, whether statutory or otherwise and whether express or implied, oral or written as to the state, merchantability, quality, fitness for purpose or fitness of the services and its maintenance are hereby excluded.
- Notwithstanding anything else herein contained or implied Foundation Design is not attempting to exclude any of its legal liabilities under the Consumer Guarantees Act 1993.
- This clause shall survive the termination of this contract.
Relationship of the Parties
The Subscriber warrants it has not relied on:
- Any representation made by or on behalf of Foundation Design which has not been expressly stated in this contract; or upon any publicity material or brochures produced by or on behalf of Foundation Design.
- This contract constitutes the complete and exclusive understanding between the parties in relation to the subject matter hereof and supersedes all prior contracts, proposals, communications and representations made by either party (whether oral or written) and this contract may only be modified if such modification is in writing and signed by a duly authorised representative of each party. This contract shall prevail over any inconsistent terms and conditions in any other contract between the parties whether in correspondence or otherwise and any conditions or stipulations to the contrary are hereby excluded and extinguished. Except as otherwise expressly stated in this contract, neither party has any other responsibility or obligation to the other.
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.
Should any provision of this contract be held to be illegal, invalid, or unenforceable by a court law, the legality, validity and enforceability of the remaining provisions of this contract shall remain unaffected thereby unless otherwise stated.
Terms & Conditions Acceptance
These Terms and Conditions supersede all previous representations, understandings or contracts and shall prevail notwithstanding any variance with terms and conditions of any order submitted. Use of Foundation Design’s service constitutes acceptance of these Terms and Conditions.