Terms & Conditions
The legal stuff.
- All subscriptions are for a minimum 12-month term. At the end of the 12-month term, the subscription continues at the same price for the provision of ongoing services including hosting, security, upgrades and support.
- Websites must be hosted on Marshmallow servers.
- Out of the ordinary custom design or feature requests may incur additional charges. These will be discussed before the project commences.
- There are no limits on storage or traffic volumes but fair use applies.
- All prices are in New Zealand Dollars and exclude GST. Prices are subject to change in which case the Customer will be notified in writing.
- If any services need to be outsourced, such as photography, then they may incur additional fees.
- The subscription fee does not include domain name purchases/renewals, email hosting or Search Engine Optimisation (SEO) services. These are separate services that can be arranged for you on request (if required).
- Online stores (eCommerce) usually incur additional fees from your chosen payment gateway or merchant bank services.
Payment for any work, goods or services supplied to the Customer by Marshmallow is due on the 20th of the month following the date of the relevant Marshmallow invoice.
If the Customer purchases a subscription then payment is required as per the schedule for the chosen subscription. If the website is still in production, then the first payment is due on the 20th of the month following the commencement of the project.
The Customer will reimburse Marshmallow for all costs incurred by Marshmallow in collecting any payment which is overdue by the Customer (including all legal or other enforcement costs). Marshmallow may charge interest on any payment which is overdue, and such interest will accrue at a rate of 5% above the current New Zealand Official Cash Rate (OCR) per month and will be payable in the manner specified by Marshmallow.
Cancellation of Subscriptions:
Subscriptions can be cancelled at any time after the minimum term of 12 months by contacting Marshmallow in writing via email or using the contact form. If the Customer chooses to cancel a subscription before the completion of the minimum 24-month term, the Customer will be required to pay the balance of the subscription term in full.
Cancellation of orders:
Orders can not be cancelled except upon terms which will fully compensate Marshmallow for all expenses incurred or to be incurred by Marshmallow in connection with those orders and fully protect Marshmallow against any loss which Marshmallow may suffer in connection with those orders.
The suspension of any work for a period of 30 days will entitle Marshmallow to immediate payment in full of the portion of the work completed.
Marshmallow’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.)
In addition to any other consideration payable by the Customer under these terms and conditions, the Customer shall pay to Marshmallow all goods and services tax or charge imposed by the Government (or any statutory or regulatory authority) payable by Marshmallow resulting from the supply of any goods or services to the Customer.
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 Marshmallow at any time by notice in writing.
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. This includes:
- Customer corrections on and after the first proof including any alterations in style;
- all resetting in making the requested corrections;
- all costs related to the requested alterations.
Marshmallow 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.
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 Marshmallow on a speculative basis will remain Marshmallow’s property and may not be used by the Customer (nor will any idea obtained from them be used) except for compensation to be determined by Marshmallow.
There is no guarantee that production prints will exactly match colour proofs because of variations in proof preparation methods and substrates.
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.
Any complaint by the Customer in respect of goods supplied by Marshmallow must be made in writing within 10 days of receipt of the goods. After this time no claim will be recognised by Marshmallow and the Customer will be deemed to have accepted the goods.
While all work completed is archived and stored electronically on multiple backup drives and in the Cloud, Marshmallow takes no responsibility for the safe preservation of that material. If Marshmallow agrees to duplicate or transfer stored electronic material for or to the Customer, Marshmallow may charge the Customer fees for these services.
Discs and drives supplied by the Customer remain the property of the Customer and, unless otherwise instructed in writing, Marshmallow will assume that the discs and drives are a duplicate copy of the original.
Customer property and property supplied:
All property of the Customer which is held by Marshmallow on the Customer’s behalf will be held at the Customer’s risk.
Where materials or equipment are supplied by the Customer, Marshmallow will use all reasonable endeavours to secure good results from the use of those materials or equipment. However, Marshmallow 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.
Marshmallow 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 Marshmallow to the Customer. Where the Customer is acquiring goods or services for business purposes, Marshmallow 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 Marshmallow to the Customer will not pass to the Customer until the Customer has discharged all outstanding indebtedness to Marshmallow in respect of the goods and other monies owing. Additionally, all creative work provided by Marshmallow, including (but not limited to) design, identity development, concepts, naming and copywriting, shall remain the copyright of Marshmallow until the Customer has discharged all outstanding indebtedness to Marshmallow.
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 Marshmallow and its agents an irrevocable licence to enter without notice onto any premises occupied by the Customer and to remove the goods.
Marshmallow 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 Marshmallow from and against all claims, losses, damages, costs or expenses (including legal costs and expenses) suffered or incurred by Marshmallow 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.
Marshmallow may impose a credit limit at its discretion and alter the credit limit without notice. Where the credit limit is exceeded, Marshmallow may refuse to supply goods to the Customer, or require security in a form satisfactory to Marshmallow.
Marshmallow 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 Marshmallow’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.