e-XpertTERMS AND CONDITIONS
as at MARCH 2007
1.0 Charges / Invoicing
1.1 Charges
e-Xpert charges/fees/pricing for the Services are those set out in the body of this document, which are subject to amendment in accordance with the provisions of Clause 9.0.
e-Xpert will issue the Customer an invoice for all Services provided to the Customer where e-Xpert’s records show they are chargeable to the Customer’s account. The Customer must pay all charges due by their Payment Due Date unless the payment is in dispute.
Any alterations and additions requested to your project will be charged for at our standard design and development rates. Work carried out that is not specified in the brief for the project will be charged in addition at our normal hourly rates with a minimum charge of fifteen minute increments.
1.2 Disbursements
Disbursements relating to your job will also be charged. These include kilometres at 65c per km, photocopying, toll calls, faxes, couriers, travel or Accommodation costs incurred.
1.3 Support
Once a Website has gone live we are happy to provide ongoing telephone and email support through our Work Request and Help Desk systems. Unless a Service Level Agreement is in place, any support performed by Help Desk will be charged for at our standard hourly support rate of $125.00 plus GST, billed in fifteen-minute increments. We will supply a call or email log with each invoice.
If a work request through Help Desk requires special design or development expertise from an e-Xpert staff member, then that request will be charged for at the client's applicable design and development rates.
Support related to bug-fixes will not be charged for.
1.4 Disputed Amounts
Where the Customer wishes to dispute any item(s) appearing on an invoice, the Customer must write to, email, or telephone e-Xpert, and seek resolution of the disputed amount. Any notification to e-Xpert of a dispute must be made within 30 days of the invoice date.
The Customer must pay any undisputed amount by the Payment Due Date, otherwise interest or late payment charges may be imposed on the undisputed balance.
If e-Xpert agrees there is a mistake, the account balance will be corrected as soon as practicable. If e-Xpert finds there is no mistake, the Customer will be required to pay the outstanding amount immediately on being notified of e-Xpert’s finding, or by the Payment Due Date, whichever is the latter.
1.5 Dispute Resolution Technique
Having regard to the high degree of good faith that must exist between the parties, the parties agree to do their utmost to ensure that disputes between them are settled equitably, amicably, quickly and without resort to arbitration. In the event of any dispute relating to or arising out of this Agreement, the parties shall (without prejudice to any other right or entitlement they may have pursuant to the Agreement otherwise), explore whether the dispute can be solved by agreement between them using informal dispute resolution techniques.
The rules governing such technique adopted by all shall be agreed between the parties or as selected by the New Zealand Chapter of Lawyers Engaged in Alternative Dispute Resolution (“LEADR NZ”)
1.6 Dispute that cannot be settled by negotiation
Any dispute arising out of this agreement that cannot be settled by negotiation between the parties within one calendar month from the initial communication indicating that an item is in dispute, and pursuant to clause 1.5 above shall be referred to arbitration and shall be finally settled in accordance with the Arbitration Act 1996 and the Arbitration Amendment Act 1998.
Any such reference shall be in writing and specify the nature of the dispute and the points at issue. The parties will agree on a single arbitrator, or failing agreement, such arbitrator will be appointed by the President of the Council of the Arbitrators’ and Mediators’ Institute of New Zealand Inc (AMINZ).
The award of the arbitrator shall be final and binding on the parties. e-Xpert will not withhold services related to the provisions under this Agreement while any payment is in dispute.
1.7 Transaction Fees
Any client who performs online credit card transactions through their website that is hosted by e-Xpert is liable for a transaction processing fee on each transaction that routes through the e-Xpert server. This includes all payments using the MoSTä transaction system and the Charge IT payment gateway, and is for real-time and manual credit card payments.
2.0 Late Payment and Suspension of Services
2.1 Interest
e-Xpert may at its discretion charge the Customer interest at a rate of 2.0% per month, compounding (i.e. interest is also charged on all overdue balances, including interest charges), on accounts or invoices that remain unpaid after the Payment Due Date.
Interest will not be payable on amounts in dispute, provided the dispute is resolved in favour of the Customer, or where e-Xpert believes it would be unreasonable. Otherwise, the interest will accrue from the day after the Payment Due Date until the date payment is received (including that day).
2.2 Right to Suspend Services
If the Customer fails to make payment to e-Xpert for any Service by the Payment Due Date, e-Xpert may suspend the provision of that and/or any other Service.
e-Xpert will provide the Customer five (5) Working Days written notice of its intention to suspend any Service, sent to the most recent postal address, or email address, held on file for the Customer. If payment is not received, or agreed to within that five (5) Working Days e-Xpert may suspend the Customer’s Service(s).
e-Xpert may require the Customer to pay a deposit, or an advance payment, as a condition of lifting any suspension imposed under this clause.
2.3 Right to Terminate Services or Agreement(s)
e-Xpert reserves the right to terminate this Agreement or any related Delivery of Service Agreement(s), and/or restrict credit terms, where accounts are deemed to be in a state that is deemed to be a financial (or other) risk from e-Xpert’s perspective.
A “financial risk” to e-Xpert would include:
Where invoices are more than two (2) months overdue.
2.4 Debt Collection Costs
Where the Customer’s accounts are sent for debt collection with an external agent, the Customer agrees to bear and pay all costs imposed on e-Xpert in relation to the collection of the debt.
These costs will generally include debt collection commission charges; case opening or closing fees; and legal costs in extended cases.
3.0 Hosting Terms and Commencement
If hosting with e-Xpert Developments Ltd, Hosting Fees shall commence on the agreed go live date and shall continue on a month-to-month basis indefinitely unless expressly terminated with one months notice.
All hosting charges are due and payable on the first day of each calendar month, monthly in advance.
4.0 Payment Terms
e-Xpert will not commence a project until a contract or agreement is signed and the client has been invoiced the project deposit amount as indicated on the document given to the client outlining provision of services.
The Customer must pay an invoice, or their account balance, by the Payment Due Date, which is based on the Payment Terms they have with e-Xpert at the time the invoice(s) is (are) generated. If not specified then payment terms are seven days from the date of invoice.
5.0 Quotations
Where fixed price quotations are provided, these are exclusive of GST and disbursements and are valid for 30 days from the date of the quotation.
6.0 Estimate of Costs
Where it is not possible to provide a quotation, an estimate will be given if required. If you decide not to proceed with the matter to completion, work carried out and payments made on your behalf remain chargeable.
Any significant costs to be incurred in excess of any estimate given will be referred to the client prior to the work being undertaken.
7.0 Responsibilities
7.1 e-Xpert’s Responsibilities
e-Xpert will provide each Service in accordance with the terms and conditions set out in the documentation outlining the provision of Services to you and in accordance with those overridden by any Service Level Agreement(s) that may apply.
Where e-Xpert performs work for the customer, it will ensure that competent and suitably experienced personnel carry out all work, in a professional manner and in accordance with the appropriate standards and regulations.
While e-Xpert Developments Limited will make every endeavour to ensure a fully professional approach to all work carried out, it cannot guarantee the results of recommendations as many factors are outside of our control. Consequently, e-Xpert Developments Limited shall not be liable for any consequences of the provision of services to you, except for consequences arising as a direct result of the proven negligence on the part of e-Xpert Developments Limited.
e-Xpert will provide Hosting Services with reasonable care and skill, and will use all reasonable efforts to ensure that the Hosting Services are reliable at all times, but cannot, and it does not, guarantee that the Services will be continuous or fault free except in the case of proven negligence.
e-Xpert cannot and will not be responsible for unauthorised access to our facilities or equipment or for alteration, loss or destruction of data files, programs, procedures or information of the Customers by accident, fraudulent method or equipment, any Act of God or any other method.
From time to time, e-Xpert may (and has the right to) send information and offers to the Customer about upgrades and other services offered by e-Xpert.
7.2 The Customer’s Responsibilities
The Customer agrees that they will not use the Services, nor permit the services to be used in any way that is illegal, or could damage or knowingly affect e-Xpert’s or any other operators network.
The Customer will ensure that all information provided to e-Xpert is accurate, and that they will inform e-Xpert promptly of any material changes to this information, including all contract information.
The Customer will use the Services for the purposes that they are provided, and in accordance with any reasonable directions given by e-Xpert.
The Customer is liable for and indemnifies e-Xpert against any costs, expenses, or damages incurred by e-Xpert as a result of the Customer failing to comply with their obligations under this clause.
8.0 Interest on Overdue Accounts
In the absence of special arrangements, we do not allow a credit facility. For that reason we reserve the right to charge interest on all overdue accounts (including fees and disbursements) at the rate specified in section 2.1 of this document. Overdue accounts are deemed to be those accounts that remain unpaid after seven days from the date of invoice for services provided by e-Xpert Developments Limited.
Collection costs incurred by e-Xpert Developments Limited for the collection of any overdue accounts will be the responsibility of the client and all charges must be paid in full at the time of collection as per section 2.4 of this document.
9.0 Warranties
Any custom software development the client purchases from e-Xpert developments Limited has a warranty period of 60 days from the date that the acceptance confirmation for the software is issued to e-Xpert. Extended warranties are available for purchase.
10.0 Acknowledgement of Terms
This document contains the terms upon which e-Xpert Developments Limited accepts your instructions to act for you. These Terms and Conditions of Trade may be changed by e-Xpert Developments in consultation with the client.
