Website Services Terms of Service

The following Terms of our service (“TOS,” “Terms” or “Agreement”) apply to the use of any website design and hosting services provided by Toby Rutter trading as Toby Rutter Digital referred to in these terms as “Toby Rutter Digital”, “us”, “our”, “we”,).  Excluded from these terms are our Marketing Services including SEO which are covered under our Marketing Services Terms. By purchasing website design, hosting or domain services from Toby Rutter Digital, you declare that you have read, understood and agree to be bound by this TOS. The latest version of our TOS is always available on the Toby Rutter Digital website https://www.tobyrutter.co.nz. It is essential that you read this TOS prior to purchasing website design, hosting or domains services from Toby Rutter Digital.

Toby Rutter Digital will endeavour to operate in a fair and reasonable manner at all times and it is part of our ethos to ensure we maintain a great relationship with our Clients. It is, however, important to agree to certain contractual aspects in order to protect both parties. By undertaking services with Toby Rutter Digital, you are agreeing to the following terms and conditions.

1.  APPLICATION OF TERMS

1.1. For the purposes of these TOS “Service” or “Services” means any and all website services provided by Toby Rutter Digital under these TOS including, without limitation, any of our subscription plans for hosting services, additional website features, website migration services, website updates, domain name registration services, email hosting services, website support services, third-party website products and services, any any other services which may be provided from time to time as set out in your original quotation and invoice. Excludes from these terms are our marketing services such as  SEO, Social Media Mangement and Online Advertising which are covered by or Marketing Services Terms.

1.2 “Client” shall mean the individual, company, partnership or other entity engaging the services of Toby Rutter Digital. The Client is referred to as “Client”, “You”, or “Your” within these terms.

2. ORDER. ACCEPTANCE OF ORDER

2.1 You must be at least eighteen (18) years of age at the time you place your order for Services. By submission of an order for Services you declare that you are eighteen (18) years old or older and have the legal capacity to enter into an agreement with Toby Rutter Digital.

2.2 If you place an order for Services on behalf of a legal entity, you represent and warrant that you have the legal authority to bind such legal entity to these TOS, in which case the terms “Client” “you” or “your” shall refer to such legal entity. In the event that Toby Rutter Digital establishes that you do not have the legal authority to bind such legal entity, you will be personally liable for the obligations under these TOS.

2.3 You understand and agree that all order for Services may be subject to compliance checks to determine if they meet our financial, security and other reasonable criteria (Fraud Screen). In some cases we might ask you for additional information before we can approve and accept your order.

2.4 We provide detailed proposals and quotes for all website design Services. Clients will be asked to accept a quote in writing and you may be asked to make a deposit of 30% to secure your contract. Any deposits paid on a contract are non refundable.

2.5 All prices quoted are excluding GST.

2.6 Unless specified in writing to the contrary any indication of price for the provision of Services by Toby Rutter Digital is by way of an estimate only and shall not be binding on Toby Rutter Digital.  If there are any changes to the initial quote then the Client will be notified in writing prior to work being carried out. Quotes and proposals are only valid for one month after issue and Toby Rutter Digital reserves the right to change the pricing of services at any with 14 days notice.

2.8 All website hosting, email and domain name services are invoiced/paid for in advance and are non refundable.

2.9 When services are provided for existing clients that do not fall within a quoted project services will be provided at my current hourly rates. To provide my clients with affordable services I offer two hourly rates one for standard administrative tasks and one for technical tasks which require complex knowledge and coding. Clients will be advised of the rate that is applicable to the service they are being offered. Toby Rutter Digital reserves the right to change hourly rates with 14 days written notice.

2.9 This agreement shall be deemed to be an agreement made in New Zealand and shall be subject to, governed by and interpreted in accordance with the laws of New Zealand.

3. PERSONAL DATA. DATA PROCESSING AGREEMENT

3.1. In order to purchase and use our Service(s) you will be required to provide personal data. For the purposes of these TOS, personal data shall have the meaning set out in our Privacy Policy. Please refer to our Privacy Policy for complete information on what personal data we collect and how we process and disclose it.

4. SERVICES

4.1 We provide post website launch assistance for the first 30 days after your website is launched. Clients who sign up for hosting Services will also receive ongoing website support as requested. This support is provided free of charge for up to 15 minutes per month, after which Toby Rutter Digital reserves the right to charge Services at the current rate. This will be advised to the Client at the time of the request.

4.2 We provide a quality web hosting service. Unless you have specified otherwise, we will launch and maintain your website on this service. We ensure this service is reliable, secure and that your website is backed up daily or upon written request.  Any issues relating directly to web hosting, such as down time are our responsibility and we will take care of this for you.

4.3 The Services will be provided to you as configured for our standard customer. Toby Rutter Digital and any the third party we use to provide you with these services might modify, update or upgrade Services and/or add, remove or modify any software, functionality or configuration installed on or used by the Services at any time with or without prior notice. You will bear ultimate responsibility to ensure that the Services are configured to meet your operational, privacy and security needs. Your hardware, software as well as any other items you deem necessary to use the Services shall be compatible with the Services. We will not be obliged to modify the Services to accommodate your use.

4.3. To the maximum extent applicable under national law and without affecting your rights as a Consumer, the Services will be provided on “as-is basis”. The hardware configurations may vary. Toby Rutter Digital extends services to you from third parties and these providers may choose to replace, change, update or discontinue offerings at any time. Where features of your website no longer meet the  expectations of your original proposal Toby Rutter Digital will do their best to replace the feature with a similar one, however Toby Rutter Digital is unable to guarantee that features of your website will remain the same as when the website was initially launched.

5. User Access and Responsibility

5.1 You will have standard editor or shop manager access to independently edit or update your web pages after completion of your website, unless otherwise agreed by the Client and Toby Rutter Digital.

5.2 If anyone other than Toby Rutter Digital or its subcontractors attempts to update the web site and damages the design or impairs the ability for the web pages to display or function properly, time to repair the web pages will be assessed at our current hourly rate. There is a one-hour minimum.

5.3 Clients can request to be given full administrative access to their website on consultation with Toby Rutter Digital provided website design services have been paid in full. Full administrative access is only recommended for advanced users.

5.4 Any client who accepts administrative access must also accept that by doing so they can effect performance, security and functionality of their website. Toby Rutter Digital does not guarantee that speed, security and performance of your website can be maintained when additional plugins or features are added and the Client becomes responsible for the management and updates of plugins they added.

5.5 Toby Rutter Digital accepts no liability of any damages caused to a website by users with administrative access and accepts no responsibility for loss of data or down time caused by the actions of those with administrative access.

5.6 A client with administrative access should take reasonable steps to back up their website data before making changes to plugins and core wordpress files.

5. Security

6.1 The Client is obliged not to disclose the login information to unauthorised third parties. You shall inform Toby Rutter Digital immediately if you obtain knowledge that unauthorised third parties are aware of the password. Unauthorised third parties are not such persons who utilise storage, which forms the subject matter of the agreement, with the knowledge and  agreement of the customer.

6. Backups, Updates and Maintenance

6.1 Automated daily backups are included in all website hosting Services with Toby Rutter Digital. Daily backups can be reinstated by a request in writing.

6.2 A request for a custom backup from Toby Rutter Digital can be made at any time for clients that have purchased website hosting Services. Toby Rutter Digital reserves the right in some instances to charge for requests for custom website backups.

6.3 Clients must accept that if they request their last daily backup to be reinstated they may loose data such as website changes, form submissions and orders received following the time that backup was taken.

6.4 The client accepts that Toby Rutter Digital will not always be available immediately to take custom backups or to reinstate the daily backup but will do so as soon as possible and within a 24hrs Monday to Friday except if the client has been advised in writing that Toby Rutter Digital will be unavailable to do so for a period of time.

 6.5 General updates and performance optimisation may be carried out during normal working hours when down time of your website is likely to be less than 10 minutes and in most cases well less than 5 minutes.

6.6 Advanced optimisation and improvement of performance of the systems where down times are likely to be longer than those expressed above are carried out outside the usual business hours, generally on Sunday between 2 am and 3 am. The customer shall be informed of the execution of maintenance which exceeds 10 minutes website downtime times by e-mail in a timely manner, with the exception of instances where security issues or website errors require immediate attention to mitagate against security threats or liability.

6.7 As part of the hosting service, we provide access to a number of tools and services that require yearly paid licence renewals. We licence these products exclusively for use on our hosting. We use these licensed products to enhance your website while your website is hosted with us. If either party, you (“the Client”) or Toby Rutter Digital, terminates your hosting agreement, Toby Rutter Digital is not obliged to continue licensing any of these products for you. If you choose to continue to use these tools and services you will need to purchase valid licences for any and all products and services you require.

Domain Names

7.1 Domain registration is carried out on request, Toby Rutter Digital will register domain names on behalf of the customer with the respective issuing body. The customer authorises Toby Rutter Digital to issue all declarations or execute all activities necessary for registration of a domain with the respective issuing body, on behalf of the customer. The customer can only expect the actual assignment of the domain name once this has been confirmed by Toby Rutter Digital. Toby Rutter Digital shall not accept liability and provides no guarantee in respect of the assignment of the domain name orders.

7.2 All domain registrations are paid for advance and Toby Rutter Digital accepts no liability for lost domains due to failure to pay invoicing on time.

7.3 Requests to cancel a domain name, or transfer a domain name must be made in writing by the Client to Toby Rutter Digital. Requesting a UDAI code will not cancel any domain services with Toby Rutter Digital and charges will continue to apply until written notice is received by Toby Rutter Digital from the Client.

7.4 Toby Rutter Digital will provide such assistance as is reasonably requested by the Client to enable the transfer of their domain name(s) to another domain registrar. Where a Client chooses to cancel or transfer a domain name managed on their behalf by Toby Rutter Digital, the Client will not be entitled to a refund of any charges related to the registration of their domain name.

7.5 Toby Rutter Digital will provide such assistance as is reasonably requested by the Client to manage and make any changes to the DNS records for any domain name that Toby Rutter Digital manages on the Customer’s behalf. Toby Rutter Digital reserves the right to charge at the current rate for the provision of such assistance.

8 Liability

8.1 Toby Rutter Digital is not responsible for the content of the Clients saved data or the saved contents. Toby Rutter Digital also does not accept liability for damage suffered by the customer due to alterations of the saved data by the customer or other internet users.

8.2 Toby Rutter Digital can not guarantee that the functions contained in any web page templates or in a completed website, or web hosting services will always be error-free and so we can’t be liable to you or any third party for damages, including lost revenue, lost savings or other incidental, consequential or special damages arising out of the operation of, or inability to, operate this website and any other web pages, even if you have advised us of the possibilities of such damages. If for any reason, this does not prevail, our liability shall never exceed the amount paid to us by you under these terms of service in the immediate 6 months preceding any notice of claim.

8.3 Toby Rutter Digital will take the security of your website data and access seriously and will put in place reasonable measures to ensure your website remains secure. However Toby Rutter Digital is not liable for any damages caused by the circumvention of password protection and similar protection facilities through “hacking” on the server used by the customer. Toby Rutter Digital and the customer are both informed of the fact that a binding assurance regarding the security of these protection facilities is not possible due to the manifold opportunities of unauthorised third parties to influence the system in and via the internet.

8.4 It is your responsibility, as the client and owner of your business to ensure that you comply with all relevant legislation, copyright legislation, advertising standards and privacy rules within New Zealand and the countries that you operate in. Compliance with legislation is entirely your responsibility as the business owner. While we may in good faith help you implement changes to ensure compliance, we cannot be held responsible or liable for past, present or future compliance with the applicable laws. Any advice we may give verbally or in writing should not be treated as professional legal advice. We are not qualified in this area and you should seek independent professional legal advice on any compliance and liability issues.

9. Copyright

9.1 Toby Rutter Digital does not assume any responsibility or liability for any of the content of the websites it manages, maintains and/or hosts. The client guarantees to us that any elements of text, graphics, photos, designs, trademarks, or other artwork that you (or third parties at your request) provides us for inclusion on any websites we build or host, are either owned by your good selves, or that you have permission to use them. You will comply with any applicable copyright laws in New Zealand (or the country you are based in).

9.2 We love to show off our work and share what we have learned with other people, so we reserve the right to display and link to any completed project as part of our portfolio and to write about the projects we have completed on websites, in magazine articles and in books about web design.

9.3 We retain all intellectual property rights for the project until the final payment has been received.

10. Overdue accounts and termination of services

10.1 Non payment of invoices will result in the suspension of any ongoing work. We make no guarantee that we can hold to the original timelines provided in this circumstance. We reserve the right to reschedule the resumption of that work as per our current production schedule once payment has been received.

10.2 Website Hosting invoices overdue for more than 20 days will result in the immediate suspension and possible termination of the hosting services. If we are forced to suspend hosting services due to non payment of invoices we will not be liable for any loss of income, loss of business or any other damages resulting from the suspension. We reserve the right to charge a reconnection fee after suspension of hosting services.

10.3 Any costs incurred by us for late payments, including, but not limited to debt collection and or court costs, to recover overdue accounts will be paid by you, (The Client).

10.4 We do not permit illegal or ‘adult only’ content on our servers and we reserve the right to terminate your hosting agreement immediately if we discover you are engaged in any of these activities.

10.5 If either party, you (“the Client”) or Toby Rutter Digital, terminates your hosting agreement, Toby Rutter Digital is not obliged to continue licensing any products provided to you with your hosting package or set out expressively in your your proposal when your website was built. If you choose to continue to use these tools and services you will need to purchase valid licences for any and all products and services you require.

10.6 If either party, you, the client, or Toby Rutter Digital, choose to terminate the hosting agreement for any reason, we will provide a site backup to you. You will be responsible for restoring/migrating the website and any other services provided from the backup provided to your new hosting service provider. We may choose to help you but are not obligated to do so. Any materials, work or services required to facilitate this process, other than the backup, will be charged at our normal service rates. 

10.7 We reserve the right to terminate the hosting agreement for any reason and will provide you a minimum of 14 days notice of that change. We will always honour the remaining hosting period current paid in advance. Termination for hosting accounts that are overdue by 20 days or more, will have immediate effect.

10.8 Website Hosting is paid in advance annually if you cancel part way through the invoiced year then no pro-rata refunds will be given.