Sunny Side Up works with open source software. You (also referred to as The Client or you) can hire Sunny Side Up (also referred to as us or we) to implement freely available code. The only promise we make to our clients are the hours we spend on projects (as invoiced) and that we follow best practice to the best of our abilities. We explicitly do not make any guarantees that:
These general terms and conditions apply to all web development and related work undertaken by Sunny Side Up, in addition and subject to any other specific terms and conditions agreed between Sunny Side Up Limited ("Sunny Side Up", "we" and "us") and its clients ("you", "The Client"). Such other terms and conditions, if any, are referred to as "the Agreement". They are intended to set out the general rights and obligations for each party.
IMPORTANT: All software provided by Sunny Side Up ltd. is provided "as is" and it will not carry any expressed or implied warranties, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose are disclaimed. In no event shall Sunny Side Up ltd. be liable for any direct, indirect, incidental, special, exemplary, or consequential damages (including, but not limited to, procurement of substitute goods or services; loss of use, data, or profits; or business interruption) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) arising in any way out of the use of this software, even if advised of the possibility of such damage.
1.1: Upon agreement of the Project Brief of the Website, and upon receipt of any Client Materials and any fees payable as set out in the Project Brief, Sunny Side Up will commence work to develop the Website.
1.2: For larger projects, the Website project may be broken down into several smaller ones. In this case, each smaller project can be referred to as a Website project and each will go through the steps set out in clause 1.
1.3: You will provide us with any Client Materials as specified in the Project Brief. Any services required to convert or input Client Materials not set forth in the Project Brief shall be charged as Additional Services.
1.4: We may use combinations of technology, as we, in consultation with you, deem appropriate to develop the Website.
1.5: If you wish to depart in any material respect from the Project Brief, the parties will, in good faith, agree to additional fees to cover those revisions.
1.6: The Client will have 90 calendar days, or such other time as Sunny Side Up and The Client agree in writing, from the date of notification of completion of the Website Development by Sunny Side Up to review and request in writing from us revisions to the Website Development. We will use commercially reasonable efforts to implement such revision requests that are within the scope of, and consistent with the Project Brief.
1.7: If The Client has not made any requests for revisions by the end of 90 calendar days from the project going live (being published and accessible in the internet), or the date of written notice of completion of the Website from us, or by such time as otherwise agreed by you and us in writing, or upon completion of implementation of such request which were mutually agreed upon by you and us under the revised Project Brief under clause 1.5, then the Website shall be deemed to be accepted by you ("Acceptance").
2.1: You have read and understood the way we develop websites and our policies in relation to this work.
2.2: You understand that no web development is perfect, that bugs and errors are rule rather than exception and that the world wide web is a fast changing medium where technology is constantly outdated.
2.3: You need to be aware that Sunny Side Up will use a wide range of Open Source software in your project and you need to be aware how Open Source works.
3.1: The Client Materials you provide to us to carry out our obligations under this agreement are owned by you. You grant us a licence to modify, reproduce, create derivative works from, and otherwise use such Intellectual Property to provide services or products in connection with this agreement.
3.2: All materials including, but not limited to any computer software (in object code and source code form), script, programming code, data, information or web-related script developed or provided by us under this agreement, and any trade secrets, know-how, methodologies and processes related to our products or services, shall remain our sole and exclusive property, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent in the Sunny Side Up Materials.
3.3: Sunny Side Up will accept no liability for any claim of infringement based on the use of a superseded or altered release of Deliverables if the infringement would have been avoided by the use of a current or unaltered release of the Deliverables, which we have provided to you; the unauthorised modification of the Deliverables; or the use of the Deliverables other than recommended by Sunny Side Up.
3.4: You acknowledge and agree that Sunny Side Up is the sole and exclusive owner of all Intellectual Property in and relating to the Deliverables and that you have no rights in or relating to the Deliverables other than are expressly provided for in this agreement.
3.5: The provisions of this clause 3 shall survive the expiry or termination of this agreement.
4.1: We grant to, and you accept from us, an exclusive, non-transferable, perpetual licence to use the Client Materials that are created by Sunny Side Up in the Deliverables for use as, or incorporation into, a website or other internet application. Any portrayal or use of the Deliverables that does not take place on a website that is operated by you for your own business purposes shall be in breach of this clause 4.1.
4.2: In consideration of the licence to use the Client Materials and Sunny Side Up Materials in the Deliverables you agree to pay Sunny Side Up the fees specified in the Project Brief and quotes.
4.3: You acknowledge that any licence granted by us under this clause 4 is granted subject to third party licensors (if any).
5.1: We make the following warranties to you in respect of the products and services provided under this agreement:
5.2 We indemnify The Client against all losses, costs, expenses, demands, or liabilities (including all legal costs and expenses) incurred by The Client relating to any claim that the provision of the Deliverables, or the use of the Deliverables by The Client, infringes on the intellectual property rights of any third party or any breach of Sunny Side Up’s obligations under this agreement or any wilful, unlawful or negligent act or omission by Sunny Side Up. Make sure to read our limitations of liability and disclaimer (7).
5.3: Our representation in clause 5.1 and 5.2 will not apply where you have used the Deliverables in a manner or for a purpose not reasonably contemplated or not authorised by us, or where you have made any adaptations, extensions or modifications to the Deliverables.
5.4: The client's sole remedy in the event of a representation in clause 5.1 or 5.2 being breached, at our option, is replacement of the defective Deliverables or refund of the licence fee paid for the Deliverables.
6.1: You acknowledge that we do not transfer any ownership rights in the Deliverables, and you acknowledge that we reserve the rights not expressly granted.
6.2: You are responsible for the use and management of The Website.
6.3: You acknowledge that we are in the business of web development and that we shall have the right to provide third parties services which are the same or similar to the services we provide to you and to use or otherwise exploit any Sunny Side Up Materials in providing such services.
6.4: You agree that the Deliverables comprising a website are not warranted to operate on computer systems and networks which do not meet any minimum specifications set out in the relevant Project Brief.
6.5: You confirm that to the best of your knowledge you own, or are validly licensed to provide under this agreement, all copyright and all other intellectual property rights in and to your Client Materials and our use of your Client Materials will not infringe the intellectual property or other rights of any third party or breach any applicable law, statute or regulation.
6.6: You agree to indemnify us against all losses, costs, expenses, demands, or liabilities (including all legal costs and expenses) incurred by us relating to any claim that the provision of your Client Materials, or the use of your Client Materials by us, infringes on the intellectual property rights of any third party or any breach of your obligations under this agreement or any wilful, unlawful or negligent act or omission by you.
6.7: You shall provide Client Materials that do not contain obscene, threatening or malicious content and do not infringe any law, or third party right or which may otherwise expose us to civil or criminal liability or affect our triple bottom line. Provision of any Client Materials, which do not satisfy this clause, shall be deemed to be a material breach of this agreement.
6.8: Any provision of maintenance and support which is not covered in the Project Brief shall be paid for by you as Additional.
7.1: We disclaim all warranties and conditions, whether express, implied or statutory, other than those identified expressly in this agreement, including but not limited to warranties of title, non-infringement, merchantability and fitness for a particular purpose. We will not be liable for any services or products provided by third party vendors, developers or consultants referred to you by us unless such third party products or services are provided under written agreement between you and us, and then only to the extent expressly provided in those agreements.
7.2: Under no circumstances (including, but not limited to negligence) shall we, or our officers, employees, partners, agents or suppliers, be liable for:
If you are using the Deliverables for the purposes of business, then you agree that the provisions of the Consumer Guarantees Act 1993 shall not apply to you.
7.3: You agree that the total liability of us, our officers, employees, agents, partners or suppliers (together) to you or anyone else using the products or services we provide to you (together) or damages, losses, and causes of action (whether in contract, tort, including negligence, under statute or otherwise) shall not exceed the total cost of providing the Deliverables or NZD10,000 whichever is the lesser amount.
8.1: The parties will use their best endeavours to amicably resolve any dispute between them, which may arise concerning the interpretation of this agreement or in relation to any matter arising under this agreement. If the parties cannot settle amicably and in good faith any dispute between them within 30 calendar days, then the party with the claim may submit the dispute to the Disputes Tribunal.
8.2: For the avoidance of doubt, the existence of a dispute will not relieve any party from the requirement to perform its obligations under this agreement generally and, notwithstanding the dispute, each party will continue to perform such obligations in accordance with this agreement to the maximum extent possible (having regard to the nature of the dispute).
9.1: Either party may terminate the agreement on 30 calendar days prior written notice to the other party at any time.
9.2: If either party breaches any term of the agreement, then the other party shall give notice to the offending party in writing to remedy the breach. If the breach is not remedied within 14 days then either party may, at their discretion, terminate this agreement.
9.3: If you commit an act of bankruptcy, or, where you, are a company, if a receiver is appointed or you do anything which would render you liable to be liquidated we may terminate this agreement immediately upon written notice to you.
10.1: If this agreement is terminated by you or us then the following will apply:
11.1: Notices to you may be given by email or by regular mail.
11.2: We will not be liable for any failure to perform this agreement if it is due to a cause beyond our reasonable control.
11.3: The provisions of this agreement shall not be varied, except by agreement in writing, including email, between the Parties.
11.4: The Parties agree that New Zealand law governs this agreement and that New Zealand courts have non-exclusive jurisdiction.
12.1: In this agreement, unless the context otherwise requires:
12.2: In this agreement, unless the context otherwise requires: I. the singular includes the plural and vice versa; and II. references to a part, section or clause is a reference to that part, section or clause in this agreement, unless specifically stated otherwise.
12.3: To the extent that there is any inconsistency or conflict between the Agreement (if any) and these terms and conditions, the agreement will prevail.
In some cases, Sunny Side Up will provide a quote at the start of a project and invoice The Client for the agreed price. However, in all other cases Sunny Side Up will work on an hourly rate. This rate is NZD$120.00 per hour unless agreed otherwise.
The Client's approval shall be obtained for any increases in fees or expenses that exceed the original quote by ten percent or more.
The Client cannot remove / add any parts of a quote without seeking agreement about this with Sunny Side Up. In other words, a quote can only be accepted in its entirity or not at all.
Sunny Side Up requests that The Client keeps all quotes confidential.
If Sunny Side Up has not specifically provided a written quote that The Client has signed and accepted then the hourly rate applies for all work requested by The Client. No matter what expectations, presumptions, or ideas The Client may have about the actual cost.
Every website needs a host (a place where it is stored). In most cases, Sunny Side Up recommends hosting companies and liaises in the relationship between the hosting company and The Client. However, under no circumstances will Sunny Side Up take responsibility for any problems that arise from actions of the hosting company even if The Client pays Sunny Side Up for the hosting. The reason for this is that the hosting fee paid by the client to Sunny Side Up only serves two purposes:
The Client is required to select a hosting company in agreement with Sunny Side Up.
From time to time, Sunny Side Up will carry out maintenance on The Client's hosting platform (e.g. apply security patches). This means that The Client's website may be offline during that time. What is more, some piece of code that worked at various periods of time, may stop working because of new server setting and security requirements. It is the sole responsibilty of The Client to regularly check their website is still working as intended and to contact Sunny Side Up immediately if there are any doubts about this.
Sunny Side Up reserves the right to disable The Client hosting for any hosting invoices that are not paid within their due date. We highly recommend all our clients to setup an automatic payment for hosting to avoid such situations.
The Client is required to provide all relevant information before Sunny Side Up can finalise the Project Brief. Any requirements, changes, updates or other information provided after the completion of the Project Brief may render an existing quote void.
Any changes to the project, the Project brief, this agreement or any other related information shall be documented in writing before coming into effect.
Sunny Side Up shall contact via email or meet with The Client on a mutually acceptable schedule for progress reports, problems encountered, and recommended changes relating to the development and testing of the site.
Sunny Side Up will make every effort to meet deadlines or let The Client know as soon as possible if it is clear that these will not be met. A failure by Sunny Side Up to deliver at the agreed due date caused solely by lack of performance on the side of Sunny Side Up may allow The Client to ask for a refund for uncompleted parts (so that The Client can continue the work with another service provider). However, this refund is only available in situations where there is no opportunity for Sunny Side Up to make up for the lost time. This refund option is not available if delays were due to reasons beyond the reasonable control of Sunny Side Up.
Unless agreed otherwise, The Client is required to provide and insert all content on the website, using Content Management Systems provided by Sunny Side Up.
Working with a Content Management System requires a fair amount of computer literacy. Clients who come to Sunny Side Up with little or no web knowledge will be expected to spend some time up-skilling themselves for this purpose. Sunny Side Up can also provide this training.
All websites created by Sunny Side Up carry a three months warranty. This warranty starts on the day the code goes live or is as deemed by Sunny Side Up as ready for use. Any bugs or errors will be fixed free of charge, during this period, where they stop the website from functioning as intended in the agreed Project Brief and where these errors or bugs are a clear mistake on the part of Sunny Side Up.
The warranty is cancelled in case any other party, including The Client, makes any changes to the website coding or transfers the site to a different hosting platform.
Please note that websites are usually are made up of many layers of code. In most cases Sunny Side Up only applies the top layer, amalgamating millions of lines of code written by others. In many situations, it will be impossible for The Client to determine where the problem lies (i.e. was it a mistake made by Sunny Side Up or is the underlying code faulty) and so it will have to rely on advice from Sunny Side Up or invite a third-party to determine the cause of a problem. Sunny Side Up will provide as much information as possible in order to make a fair judgement in these matters.
While Sunny Side Up goes through all reasonable steps to ensure that any work delivered will be free of faults, there is a likely chance that its deliverables will contain some errors. Sunny Side Up does not employ a tester as a matter of course. Unless specified otherwise, The Client will carry out and be fully responsible for all testing. This means that the Client will need to set asside some time or resources to make sure that our code is working correctly. Alternatiavely, Sunny Side Up can provde testing services to The Client.
The website shall function to industry best practice standards on the latest versions of the most popular browsers: the latest version(s) of Firefox, Internet Explorer, Safari and Chrome. If The Client would like the website to function on any other platforms or browsers (e.g. i-Phone) then this should be specifically requested and documented in the Project Brief. Additional charges also apply. We specifically exclude Internet Explorer 7 (and all earlier versions) from the collection of modern browsers, as they are outdated and incompatable with current technology. Support for these browsers can be provided at an hourly rate.
Websites can be viewed in many different ways: on a computer monitor, a mobile phone, a TV screen, as a printout, on an i-pod, and so on. Unless agreed otherwise, Sunny Side Up will only ensure that The Client’s website will work on a standard width (e.g. 1024pixels) computer monitor only. Having said that, it is very likely the website will also work on other viewing devices because of the coding quality provided by Sunny Side Up.
Unless agreed otherwise, half of the quoted cost for each project part is due at work commencement (after the Project Brief has been finalised). The remaining amount is invoiced at completion of the same project part and should be paid within 21 calendar days. Billable expenses are invoiced at the time they are incurred.
Every invoice paid after its due date incurs a NZ$25 administration fee and 2% of the original invoice, per month, interest + service fee. Furthermore, The Client is responsible for all collection and legal fees necessitated by default in payment. Sunny Side Up reserves the right to remove The Client’s website from public viewing until all invoices have been paid in full.
In the unlikely event any licensing or royalty fees are applicable Sunny Side Up will advise the client in advance about these charges.
After completion of a project, Sunny Side Up will provide a range of service contracts, which may include regular support, maintenance, and updates of The Client’s website at an agreed charge. In case Sunny Side Up is unable to provide this service, they will notify The Client about suitable alternatives in a timely manner.
If The Client chooses not to take up any service contracts then Sunny Side Up can provide ad hoc service at its standard hourly rate. Each service request will have a minimum charge of two hours.
Software is a cooperative effort rather than an individual achievement and in this light, Sunny Side Up will try to work together with The Client to achieve the best results. The more The Client puts into their website, the more The Client will get out of it.
Sunny Side Up is committed to helping The Client become more successful in whatever they do. Similarly, The Client will be expected to provide a supportive environment for Sunny Side Up in which it can deliver its services in the most efficient, fun and effective manner.
An important part of effective partnership is clear and open communication. Both The Client and Sunny Side Up are expected to show excellence in communication.
Sunny Side Up reserves the right to assign other designers or technical experts to the project to ensure quality and on-time completion. If there will be additional charges for sub-contracting then Sunny Side Up will seek Client approval before going ahead. All contractors will be vetted by Sunny Side Up for their suitability and reliability to carry out the work and Sunny Side Up will take responsibility for their actions, as required by law, while performing the contracted work.
Sunny Side Up acknowledges and agrees that source material, technical and marketing plans, and other sensitive business information provided by The Client and developed in the course of project are to be considered confidential information, unless agreed otherwise. Sunny Side Up will take all practicable steps to maintain this confidentiality. Similarly, Sunny Side Up trusts that The Client will apply a similar level of confidentiality to Sunny Side Up pricing, trade secrets, working methods, coding plans, and any other information; where dissemination could aid Sunny Side Up competitors or where dissemination may reduce Sunny Side Up’s income potential.
While confidentiality is important, Sunny Side Up is also a proponent for Open Source Software Development. Many of the Sunny Side Up clients have benefitted from this approach. Therefore, Sunny Side Up will encourage the client to allow non-sensitive parts of projects to be published as Open Source Code. In trivial cases Sunny Side Up may publish parts of a project as Open Source Code without seeking prior approval from The Client.
In general copyright belongs to the author. If you purchase a book then you do not buy the right to copy it, even if you asked the author to write the book and you are the only purchaser of the book. The same applies to photography and similarly, for our work, the copyright remains with us. You pay us for developing a website with a set of functionality and the concept, idea, and configuration of the coding parts as a whole is yours. We can call this the working collection of code, which includes many snippets that are freely available through download from your website or open source publication. In other words: you do own the copyright of the parts, but you do have the right to use, sell and copy the whole. At the same time, as long as there is no direct conflict, we have the right to sell to others, promote, publish, or enhance the parts that make up this working collection of code.
In other words, you will not own the code we write for you, but you are free to use it as you see fit and we will make sure that we do not provide the same working collection of code to any third-party. This achieves a number of goals: you do not have to worry someone is going to copy your code as a whole (to setup a competing website), the open source community benefits in its symbiotic relationship with its contributors, and we are able to build on our past work, improving it with every iteration.
Where possible, Sunny Side Up will avoid working for two clients who are in direct competition. In grey areas, we will endeavour to discuss any conflict of interests with the parties involved. Similarly, you must disclose any relationships that may cause a conflict of interest from your side (e.g. your business partner owns a web development company who compete with Sunny Side Up).
For any website hosted by Sunny Side Up limited back-up facilities are provided. In practice that means that the website can, in most cases, be rolled back, between one and a few days. That is, if all the content is deleted today then we can recover what was on the server a few days ago. If you want to be very sure to have proper back-ups then there is only one solution: make your own back-ups, store them on a separate device in a different place, and test the back-up and back-up system regularly. Sunny Side Up can not be held responsible for the direct or indirect losses caused by back-up failure of any kind.
Upon completion or cancellation of the project, if requested, Sunny Side Up shall provide The Client with all copies and originals of the source materials provided to Sunny Side Up by The Client.
Sunny Side Up delivers on an informal triple bottom line. This means that Sunny Side Up measures its success based on economic, social and environmental performance.
Sunny Side Up will withdraw from any project that it deems to be adversely affecting its triple bottom line. For example, Sunny Side Up will not be involved in developing websites with deceitful content. Sunny Side Up will notify The Client as soon as they become aware that The Client’s project is deemed unacceptable under this policy.
In this online shop all prices are indicative only. Exact costs will be confirmed after we have reviewed your order. Placing an order does not constitute a sales contract. Rather, placing an order is an expression of interest for customer and service provider to work together, using the order as a starting point.