We know no-one really likes talking about money or terms and conditions, but as we pride ourselves on being pretty upfront and honest, we won’t sugar coat it.
We believe that every local organisation – big or small, old or new – should have the opportunity to do BIG marketing!
Of course, in order to do that effectively, we need a few ground rules, so please check out the not so fine print below.
TERMS AND CONDITIONS
1.1 In these Terms of Trade:
“Client” or “Client” means the person or entity requesting Services from the Company.
“Commencement Date” has the meaning described in clause 10.1.
“Company” means Back 9 Design Limited.
“Engagement” means the engagement of the Company by the Client to perform the Services for the Client.
“Force Majeure Event” means an event or circumstance beyond the reasonable control of the Company which results in or causes the failure of the Company to perform any of its obligations under these terms and conditions or Scope of Work, including fire, flood, act of God, insurrection, sabotage, acts of terrorism, industrial disturbance, acts of vandalism and changes in legislation or regulations of any government.
“Goods” or “Materials” means tangible goods or materials supplied by the Company to the Client at any time, whether included in a Scope of Work or not, including but not limited to documents such as flyers, pamphlets and other written materials.
“Intellectual Property” means all intellectual property rights and interests (whether legal or beneficial) and, without limitation, includes any discovery, invention or original designs (whether or not registrable as designs or patents), copyright in any software, drawings, plans, specifications, designs, know-how and trade secrets owned or used, registered and unregistered trade marks, semiconductor or circuit layout rights, trade or other proprietary rights or rights derivative of those rights (including licence rights) anywhere in the world, and any other rights in intellectual property which are recognised or protected under law.
“Project” or “Projects” means a project or projects conducted by the Company in the course of providing the Services to the Client, and includes any final products (including Goods or Materials) provided to the Client, whether included in the Scope of Work or not.
“Scope of Work” means a scope of work provided by the Company to the Client setting out a summary of the services, goods and/or materials to be supplied by the Company to the Client.
“Services” means services supplied by the Company to the Client at any time, whether included in a Scope of Work or not.
“Working Days” means Mondays to Fridays, with the exception of statutory public holidays (including provincial anniversary holidays pertaining to the Southland region).
2. Services rendered
2.1 The Client engages the Company to perform the Services from the Commencement Date until the Engagement expires or is terminated in accordance with clause 10. The Company will perform the Services for the Client with reasonable skill, care and diligence.
2.2 The Client will, at a time determined by the Company, have the opportunity to review the Services provided by the Company and provide feedback. If, as a result of that review, the Client is not happy with the Company’s Services, the Client may terminate this Agreement immediately, provided the Client pays the Company in full for the Services provided up to the date of termination.
2.3 All work carried out by the Company experimental or otherwise at the Client’s request shall be chargeable by the Company to the Client.
2.4 Where the Company is required to perform any work of whatever nature as a result of copy supplied by a Client not being clear and/or legible, the Company may charges the Client for any time and materials the Company incurs in respect of such work, where it was not included in a Scope of Work.
2.5 The Company may source items or services externally (including subcontracting the whole or part of any of its obligations under these terms and conditions) in order to provide the Services, Goods or Materials to the Client.
2.6 The Company does not guarantee that the Services, Goods or Materials will be error or fault free (we’re human!). Except as expressly provided to the contrary in these terms and conditions, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Services, Goods and Materials or to these terms and conditions, are excluded. The Client acknowledges it is receiving the Services, Goods and Materials for the purposes of a business, and the provisions of the Consumer Guarantees Act 1993 will not apply. Where the Company is supplying Services, Goods or Materials in trade (for the purposes of the Fair Trading Act 1986), the parties agree to the extent permitted by law to contract out of sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 and the parties agree it is fair and reasonable to do so.
3. Mutual co-operation
3.1 The Company agrees to use all reasonable efforts to complete the Services in the timeframes set out in the Scope of Work. The Client agrees to aid the Company in doing so by promptly making available all information reasonably requested by the Company in order for the Company to perform the Services, and to cooperate with the Company in expediting it’s work.
4. Charges for services performed
4.1 Unless otherwise agreed in writing between the Company and the Client or otherwise provided in this clause 4, the charges for Services are set out in the Scope of Work.
4.2 Requests by the Client for the Company to perform work or provide goods and materials outside those listed in the Scope of Work may be considered out-of-scope (at the Company’s discretion), in which case:
(a) the Company will provide a summary of the impact of the proposed additional work or goods and materials on the Scope of Work, any milestones or charges set out in the Scope of Work, and any other contractual issues (“Change Impact Statement”), to the Client.
(b) If the Client does not accept the amended budget, the Company may choose not to perform the additional work or provide the additional goods or materials to the Client, and the Company will continue to provide the Services set out in the Scope of Work to the Client.
(c) If the Client accepts the amended budget and the Company performs the additional work or provides the additional goods or materials, the amended budget will apply for the purposes of clause 5.
4.3 The Client may modify, reject, cancel or stop a Project at any time (“Change in Work”), provided that:
(a) the Client must reimburse the Company for all costs and expenses the Company incurred prior to the Change in Work, including but not limited to costs involved with any contracts to purchase goods, materials or other resources the Company has made in order to perform the Services;
(b) the Client must pay the Company for Services and Goods and Materials supplied to the Client up to the date of the Change in Work;
(c) the Company will provide a Change Impact Statement to the Client for any modified or rejected Project, in which case clause 4.2 will apply; and
(d) where the Client has requested that the Company stop performing Services permanently, the Company will not be required to complete any Projects or Services that are incomplete as of the date of such request.
4.4 Where the client:
(a) issues instructions to the Company to stop providing the Services; or
(b) does not instruct the Company to commence providing Services following the Company providing a Scope of Works to the Client; or
(c) the Company has stopped providing Services to the Client pursuant to clause 5.4,
for longer than 45 days, the Company may (at the Company’s discretion) charge the Client a fee where the Client instructs the Company to resume or commence (as the case may be) providing Services to the Client. The fee will be a genuine estimate of any additional time and resources the Company requires in order to resume or commence providing Services to the Client.
4.5 Unless the parties agree otherwise (in writing), artwork is not included in any print prices quoted to the Client in the Scope of Work.
4.6 If for any reason an employee of the Company commences employment with the Client at any time during their employment with the Company (where such work is separate to the Engagement) or within 12 months after their employment with the Company ends, and is performing the same or substantially similar work for the Client, the Client must pay the Company a finder’s fee of $3000 plus GST.
5. Terms of payment
5.1 Money doesn’t drive our business to do great work and provide great service, but it does fuel it. The may Company require a deposit before undertaking any design work or going into production on any signage or print. The amount of the deposit required and when it must be paid will be specified in the Scope of Work.
5.2 Any payments due to the Company can be made:
(a) by direct credit to our ANZ bank account: 06-0925-0529774-00 (Back 9 Design Ltd); or
(b) by paying in studio – we accept Eftpos, Visa and Mastercard or good old fashioned cold hard cash.
5.3 Unless otherwise agreed between the Company and the Client, the Client must pay each invoice issued by the Company within 10 working days of the date of the invoice.
5.4 Where the Client has not paid an invoice within the timeframe set out in clause 5.3 (or other timeframe as may be agreed in writing between the Client and the Company), the Company may:
(a) stop, suspend or restrict work on a Project, or refuse to commence work on a Project, or refuse to provide Goods and Materials, until all outstanding amounts owing to the Company by the Client have been paid. The Company will not be liable to the Client for any loss or damage (whether in contract or tort or otherwise) including any indirect or consequential losses such as loss of profits, suffered by the Client as a result of the Company stopping or refusing to commence work pursuant to this clause 5.4.
(b) charge a late payment fee of 5.4% (over and above the current ANZ overdraft rate at the time of default) per annum on any overdue and unpaid balance not in (reasonable) dispute, to cover the manpower, interest, and other costs the Company may incur for carrying overdue invoices. Such late payment fee will be charged by the Company to the Client on a monthly basis.
5.5 The Client may, if it meets the criteria of the Company (as notified by the Company from time to time) create a credit account with the Company. The approval and provision of such credit account is at the complete discretion of the Company.
5.6 In the event the Company incurs any legal fees (on a client-solicitor basis), costs and disbursements in an effort to collect unpaid invoices from the Client, the Client will reimburse the Company for these expenses.
5.7 The Client will make all payments due to the Company under these terms and conditions in full without deductions of any nature whatsoever whether by way of set-off, counterclaim or other equitable or lawful claim and without deduction or any taxes or other government charges. However, if any set-off, counterclaim, equity, deduction, withholding or charges are required by law, the Client will concurrently pay to the Company such additional amounts as will result in the Company receiving the full amount it would have received had no set-off, counterclaim, equity, deduction, withholding or charge been required.
6. Responsibilities of the Company
6.1 The Company shall obtain any releases, licenses, permits or other authorizations required to use any materials belonging to third parties sourced by the Company in performing the Services or providing the Goods and Materials.
6.2 To the extent permitted by law, the Company will not be liable to you or any third party for loss or damage (whether in contract, tort or otherwise), including loss of profits, loss of savings or other incidental, consequential or special damages, even if you’ve advised us of them, except where such loss or damage is a result of the negligence, fraud or other unlawful act of the Company. Without limiting the foregoing, the maximum liability of the Company to the Client will be, in respect of all claims, proceedings, actions, liabilities, damages, costs, expenses or losses, an amount equal to the total amount paid by the Client to the Company for the provision of Services, Goods and Materials by the Company to the Client.
7. Responsibilities of the Client
7.1 The Client will fully indemnify the Company (including its employees) against all claims, proceedings, actions, liabilities, damages, costs, expenses and losses (including full legal costs on a solicitor client basis) suffered or incurred by either or both the Client or its Personnel as a result of any claim or alleged claim that:
(a) the possession or use of any Intellectual Property supplied or licensed by the Client; or
(b) the use of the Services, Goods, Materials or any Intellectual Property used to provide the Services, Goods or Materials,
infringes any third party’s rights.
7.2 In the event of any claim or alleged claim under clause 7.1 (in each case, a “Claim”), the Client will:
(a) give written notice of the Claim to the Company as soon as practicable;
(b) permit the Company (at the Company’s cost) to handle all negotiations for settlement and to control and direct any litigation that may follow; and
(c) provide all reasonable assistance to the Company (at the Company’s cost) in the handling of any negotiations and litigation.
7.3 The Company will:
(a) keep the Client informed of the defence or negotiations in relation to a Claim at all material times;
(b) diligently conduct any litigation or negotiations using competent counsel and in a manner that does not adversely affect the name or reputation of the Client; and
(c) not enter into any settlement or compromise in relation to any Claim without first obtaining the written consent of the Client (which must not be unreasonably withheld).
7.4 The Client is responsible for the accuracy, completeness and propriety of information supplied to the Company verbally or in writing in connection with the performance of the Services.
7.5 Proofs of all work may be submitted for the Client’s approval and the Company will not be liable for any errors not corrected by the Client in proofs so submitted.
7.6 The Company may charge the Client amounts additional to those set out in the Scope of Work for additional proofs that are required as a result of alterations requested by the Client. When the Client instructs the Company to choose style, type or layout at the Company’s discretion, any subsequent changes to such style, type or layout required by the Client shall be subject to additional charges by the Company on a time and materials basis.
7.7 The Client must only use the Services for it’s own internal business use and must not sell, rebill or otherwise provide any of the Services to anyone else without the Company’s written consent.
8. Ownership of Intellectual Property
8.1 The Client (or its licensors) is the owner of, and retains all Intellectual Property rights in, all materials:
(a) existing at the date first used in respect of a Project, which are brought to a Project by the Client or its nominees; and
(b) all data relating to the Client or its employees,
together, the “Client IP”.
8.2 The Company (or its licensors) is the owner of, and retains all Intellectual Property rights in, all materials:
(a) existing at the date first used in respect of a Project, which are brought to a Project by the Company or its nominees, and all adaptations, modifications and new versions of those materials made by the Company; and
(b) the proprietary tools and methodologies used by the Company in connection with the Services; and
(c) any materials or works (including software) which are created or developed by the Company (or any subcontractor) or jointly with the Client, in the performance of the Services (the “Developed Materials”),
together, the “Company IP”.
8.3 The Client hereby grants to the Company a non-exclusive, non-transferable, revocable, royalty-free licence to use, copy (for backup and business continuity purposes only) and modify the Client IP solely for the purposes of providing the Services.
8.4 The Company hereby grants to the Client a non-exclusive, transferable (including the right to sub-license), royalty-free licence to:
(a) use and copy (for backup and business continuity purposes) Company IP in order to use, support, operate and obtain the full benefit of the Services; and
(b) use, copy, store, modify, adapt and exploit the Developed Materials, in perpetuity.
8.5 The Company does not guarantee that it will keep copies of any of the Company IP or Developed Materials. It is the responsibility of the Client to retain any such copies and or back-ups that it requires.
8.6 All risks in respect of Goods and Materials pass to the Client upon delivery. At the Company’s sole discretion:
(a) physical delivery of the goods to the Client or to a carrier or other bailee (whether named by the Client or not) for the purpose of transmission to the Client; or
(b) the notification by the Company to the Client that the Goods or Materials are ready for collection,
constitutes their delivery to the Client for the purposes of this clause 8.6.
8.7 Notwithstanding any other provision of these terms and conditions, the Company (or it’s licensors) retain all ownership rights in any software (including any upgrades or updates of software) provided by the Company to the Client as part of the Services. The Client may only use the software for the purposes for which the Company provides it and the Client must not change or interfere with the software in any way. The Client must not copy any part of the software without the Company’s permission.
9. Confidentiality and Privacy
9.1 Where either party has specified that certain information it provides to the other party is confidential, the first party will use all reasonable efforts to preserve the confidentiality of such information.
9.2 The Company and any service providers approved by us may collect and hold information about the Client and share it to the extent appropriate (including for credit reference and debt collection services) with each other, with the Company’s employees, contractors and agents and any provider. This enables the Company to:
(a) provide services to the Client and others;
(b) send the Client invoices and recover and report on money the Client owes;
(c) keep the Client informed of services available to the Client from the Company and other people; and
(d) exercise any lawful right the Company has.
9.3 The Company may use the Client’s personal information to provide the Client with newsletters and promotional material and, at the time of collecting such personal information, the Company may request other information about the Client in order to identify which of the Company’s current and future products may be of interest to the Client. Unless the Client notifies the Company otherwise, the Client consents to receiving marketing, promotional and other material both in the post and by way of electronic messages from the Company.
10. Term and Termination
10.1 These terms and conditions apply from the date the Client signs the Scope of Work or indicates their acceptance of the Scope of Work in any other way (including but not limited to by email to the Company) (“Commencement Date”), and shall continue to apply until:
(a) the Company and Client have performed their obligations set out in the Scope of Work and these terms and conditions; or
(b) the Engagement is terminated either:
(i) pursuant to the Client’s request for the Company to stop providing the Services permanently in accordance with clause 4.3; or
(ii) by the Company in accordance with clause 10.2.
10.2 The Company may terminate the Engagement where:
(a) the Client defaults in the performance of any of its obligations under these terms and conditions and, if the default can be remedied, the default is not remedied within thirty days of the receipt of notice of such default from the Company; or
(b) the Client is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction, if the Client makes an assignment for the benefit of creditors, if a trustee, or similar agent is appointed with respect to any property or business of the Client; or
(c) the Client breaches its obligation to make payment to the Company pursuant to clause 5; or
(d) The Company cannot perform it’s obligations under these terms and conditions or Scope of Work due to a Force Majeure Event.
10.3 Where the Engagement is terminated pursuant to clause 10.2:
(a) the Company may immediately stop performing the Services and will not be required to complete any Projects or Services that are incomplete as of the date of termination of the Engagement;
(b) the Client must reimburse the Company for all costs and expenses the Company incurred prior to the date of termination, including but not limited to costs involved with any contracts to purchase goods, materials or other resources the Company has made in order to perform the Services;
(c) the Client must pay the Company for Services and Goods and Materials supplied to the Client up to the date of the termination.
10.4 Following termination or expiry of these terms and conditions:
(a) the Client must not use any Goods, Materials or other products produced by the Company in the performance of the Services for the Client until the Client has paid all amounts due to the Company in full;
(b) the Company shall transfer or make available to the Client all Client IP in the Company’s possession or control. The Client will pay for any costs associated with such transfer.
10.5 The provisions of clauses 2.6, 4.3, 4.6 5, 6.2, 7, 8, 9, 10.4, 11.1, 11.4, 11.5, 11.7-11.9 (inclusive) and any other provision which by its nature is intended to survive the termination or expiration of the Engagement will survive termination or expiration of the Engagement.
10.6 Termination will be without prejudice to any rights or obligations either party may have under these terms and conditions or the Scope of Work.
11. General Provisions
11.1 The Engagement and these terms and conditions shall be governed and construed in accordance with New Zealand legislation.
11.2 The parties each individually represent and warrant that they have the full power and authority to agree to these terms and conditions and to perform all of their obligations under them without violating the legal or equitable rights of any third party.
11.3 Except as otherwise or referred to in these terms and conditions and Scope of Work, these terms and conditions and the Scope of Work constitute the sole and entire agreement and understanding between the parties as to their subject matter, and supersede all prior discussions, agreements and understandings of every kind and nature between them as to such subject matter. If any provision of these terms and conditions or the Scope of Work is held to be illegal, invalid, or unenforceable under any present or future law, then that provision will be fully severable. In such instance, these terms and conditions and the Scope of Work will be construed and enforced as if the illegal, invalid, or unenforceable provision had never comprised a part of them, and the remaining provisions of these terms and conditions and the Scope of Work will remain in full force and effect.
11.4 If there is any conflict or inconsistency between the Scope of Work and terms and conditions the order of precedence is:
(a) The Scope of Work;
(b) These terms and conditions.
11.5 The Company will not be liable to the Client for any loss, costs or damages caused by or arising directly or indirectly out of a Force Majeure Event.
11.6 The Client may not assign or transfer any of its rights or obligations under these terms and conditions or the Scope of Work, except with the Company’s prior written consent.
11.7 Every notice or other communication given under or in connection with these terms and conditions is to be in writing, is to be made by email, facsimile, personal delivery or by post to the addressee at the email address, facsimile number or address, and is to be marked for the attention of the person, in the Scope of Works or such other address or facsimile number as is notified in writing for that purpose from time to time.
11.8 No notice or other communication is to be effective until received or deemed to have been received in accordance with this clause. A notice or other communication is deemed to be received by the addressee:
(a) in the case of email and facsimile, on the business day on which it is sent or, if sent after 5.00 pm (in the place of receipt) on a business day, or if sent on a non-business day, on the next business day after the date of sending;
(b) in the case of personal delivery, when delivered; and
(c) in the case of a letter, on the third business day after posting.
11.9 Neither party will be deemed to have waived any right under these terms and conditions unless the waiver is in writing and signed by the parties. Any failure or delay by a party to exercise any right or power under these terms and conditions will not operate as a waiver of that right or power. Any waiver by a party of any breach, or failure to exercise any right, under these terms and conditions will not constitute a waiver of any subsequent breach or continuing right.