Unless otherwise explicitly stated at the time of agreement, all Tomahawk products and services are delivered under the following Terms & Conditions;
The costs and timeframes identified at anytime are offered on certain assumptions and in order to deliver these Products and/or Services, we require you to agree with the following terms and conditions:
Definitions and Interpretations
In this proposal, unless the context otherwise requires:
"Completion" means the completion of each Phase of work or services identified. A Phase may be complete upon signing of an acceptance form by you or shall be deemed to be complete if, after the passing of five working days from the date of notification of completion of the Phase by Tomahawk to you, you do not notify Tomahawk in writing of any further requisitions or otherwise in relation to that Phase.
"Intellectual Property" means all intellectual property rights, including copyright, designs and patents related to any and all programming code, software, manuals, outlines, materials, systems, solutions and other works developed, discovered or designed by Tomahawk.
"Phase" means any of the Products or Services delivery as purchased by you, the user.
"Products" means any product provided by Tomahawk as specified and agreed between the parties.
"Services" means any service or task to be performed by Tomahawk as specified in this proposal and agreed between the parties.
"Tomahawk" means Tomahawk Brand Management Limited
Delivery of Services
Tomahawk will deliver the Products and/or Services pursuant to the following terms.
Charges and Payments
The amount payable for the supply of the Products and/or Services will be as described at the time of purchase or as per any proposal provided. Unless otherwise stated costs are exclusive of GST.
Unless otherwise stated, an initial 50% deposit is required on acceptance of the identified Products and/or Services and will indicate commencement of the project. A further 40% payment is due on delivery of your Product(s) and/or Services to User Acceptance Testing (UAT). The final 10% payment is required on delivery, or go live, of the Products and/or Services purchased. Payment will become due 7 days following receipt of the invoice in full without set-off or counterclaim unless otherwise agreed between us pursuant to the provision for staggered payment outlined below.
If you fail to pay any amount due on the due date, Tomahawk may, without prejudice to its other rights:
a. Require you to pay interest on the amount due from the due date until the date of payment, at a rate equal to 5% above the current overdraft rate that Tomahawk has with its principal banker; and
b. Arrange for the hosting of the web pages to be terminated.
You hereby authorise Tomahawk to approach any host hosting Products and/or Services delivered by Tomahawk pursuant to this proposal, and to arrange with that host for the immediate termination of your Products and/or Services pursuant to sub-paragraph b. above.
Subject to the exceptions outlined below and to any agreed variations or change requests the prices specified at the time of purchase shall be the total charge to you.
The costs outlined at the time of commencement do not include: Structure changes to the initial finalised design template (Proposal Phase), Photography, Scanning, Copywriting and Copyright Images unless otherwise stated at the time of proposal. In the case of cancellation or delays by either party to the project for more than 14 days due to circumstances outside Tomahawk's control, all time and expenses incurred to date shall be charged and payable by you.
Your Responsibilities and Obligations
You shall designate an appropriate representative as your project manager who will be charged with the responsibility of acting as Tomahawk's principal point of interface with you for the Products and/or Services.
You shall ensure that the project manager is available for all project meetings.
You shall provide any information requested by Tomahawk in the performance of the Products and/or Services within a reasonable time frame.
You shall ensure that the project manager has the authority to provide written and/or email "sign-off" for each Phase identified.
You agree that you will not use the Products and/or Services other than within a single working website for your own business without our prior consent. Tomahawk agrees to negotiate with you in relation to any proposed such use in good faith.
Intellectual Property Rights
Tomahawk's working methods, proprietary software, standards, designs and similar shall at all times remain the property of Tomahawk.
You shall at all times maintain confidentiality of Tomahawk's working methods, proprietary software, standards, designs and similar.
Each invention, discovery or improvement, which includes ideas, concepts, know-how or techniques relating to Tomahawk's working methods, proprietary software, standards, designs and similar, shall remain the property of Tomahawk.
Tomahawk shall not be prevented from supplying or designing any programmes for any other client or from utilising any expertise or know-how in any way in which it may have learned during the preparation or the provision of the Services.
You agree that you have purchased a licence to use only one copy of the programming code and that any subsequent copies that you require will be subject to the terms and conditions of a new licence agreement.
You shall not at any stage whatsoever on sell and/or replicate any of the Intellectual Property of Tomahawk.
Tomahawk owns all of the Intellectual Property rights (past, present and future) to the programming code.
Both parties agree that, unless they have the prior written consent of the other, they will not use or disclose to any third party (other than for the purpose of performing this proposal) the terms and conditions of this proposal or any information which is confidential to the other party.
Limitation and Exclusion of Liability
Tomahawk does not warrant third party products or systems whether these are supplied by Tomahawk or not. Tomahawk makes no representation as to the reliability and/or functionality of the Internet and related services.
Tomahawk will take all due care and apply best industry practices and standards in its provision of the Services. However, Tomahawk will rely on the pro-active provision of information and other items by you and your employees and on information provided and representations made by third party suppliers.
Tomahawk will not, under any circumstances, be liable under the law of tort, contract or otherwise for any loss of profits or savings or for any direct, indirect or consequential loss or damage, however caused, arising out of or in connection with the performance or non-performance of its Products and/or Services, or those of any third party whether supplied by Tomahawk or not.
In any event, Tomahawk's liability to you arising out of any claim for damages for any cause whatsoever will under no circumstances exceed in aggregate the total amount of the sums actually paid by you to Tomahawk for the Services which gave rise to the claim.
No action arising out of this proposal, regardless of form, may be brought by either party more than two years after the party becomes, or should reasonably have become, aware of the cause of action.
Warranty and Indemnity
Tomahawk warrants that operation of the services delivered exclusively to your business will be free of errors, viruses and material defects and that these services will perform in accordance with the requirements identified and agreed.
Unless otherwise agreed, the warranty period for the services delivered will be as follows:
Bespoke Website Delivery: 90 days from the date of Go Live
Themed Website Delivery: 30 days from the date of Go Live
Upgrades and/or Bespoke Service Development: 30 days from the date of Go Live
You warrant that you own all the information, graphics, copy, materials and otherwise that you provide to Tomahawk in the course of the provision of the Products and/or Services by Tomahawk. You will indemnify Tomahawk against all claims, damage and losses (including costs) incurred by Tomahawk as a result of:
a. Your failing to comply with your obligations under this proposal; or
b. Any negligent or malicious act or omission on your part or by your employees; or
c. Any breach of warranty given by you in this proposal.
Term and Termination
This proposal shall commence on signing by both parties and shall continue in full force and effect until the Products and/or Services have been completed by Tomahawk and fully paid for by you unless terminated earlier in accordance with the provisions of this proposal.
This agreement may be:
a. Terminated upon mutual agreement by the parties;
b. Terminated by either party giving 30 day’s notice of such in writing to the other party;
c. Terminated by either party by notice in writing to the other party if the other party enters into a composition with its creditors, enters into any form of voluntary or statutory administration, is declared bankrupt, goes into liquidation, or a receiver, administrator or statutory manager is appointed in respect of it;
d. If one party defaults in the performance of any of its obligations under this proposal and:
i. The default is capable of being remedied and within 20 business days of notice by the non-defaulting party specifying the default, the default is not remedied; or
ii. The default is not capable of being remedied;
then the non-defaulting party may immediately terminate this proposal by notice in writing to the other party, or temporarily suspend the operation of this proposal until the default is remedied, at its sole discretion.
Effect of Termination
Any termination of this proposal will be without prejudice to the rights of either party arising prior to termination.
Upon termination of this proposal, Tomahawk may charge a reasonable sum for work performed if applicable and in respect of which no sum has been previously charged.
Termination shall not affect the operation and effect of the confidentiality and warranty and indemnity provisions outlined in these Terms and Conditions.
Neither party will be liable for or for any delay arising as a result of any act, omission, or failure to fulfil its obligations under this agreement to the extent that such act, omission or failure arises from any cause reasonably beyond its control (called "Force Majeure").
The party unable to fulfil its obligations due to Force Majeure will immediately notify the other party in writing of the reasons for its failure to fulfil its obligations and the effect of such failure.
Sub-Contracting to Third Parties
Tomahawk may sub contract its obligations to a third party.
Tomahawk shall ensure that any third party sub-contractor it wishes to contract with is properly trained and has the necessary skills to carry out the Services required.
Disputes and Remedies
The parties agree to use their best efforts to resolve any dispute which may arise under this proposal through good faith negotiations. Except as provided in this clause, no party shall commence any dispute resolution proceedings in relation to this proposal unless it has first invited the other party to meet with it for the purpose of endeavouring to resolve the dispute on mutually acceptable terms.
Any dispute arising under this proposal which cannot be settled by negotiation between the parties or their respective representatives shall be referred to a LEADR qualified mediator chosen by the parties.
If the parties cannot agree, a mediator will be chosen by the President of the Auckland District Law Society or the President's nominee. The time, place and procedures for the mediation will all be fixed by the mediator.
Subject to the provisions of this clause, neither party may commence any other dispute resolution or legal proceedings unless and until the mediation process has been completed and the parties have failed to reach an agreement in settlement of the dispute.
Nothing in this clause shall preclude either party form taking immediate steps to seek urgent equitable relief before a New Zealand Court.