These Terms & Conditions described below are between Cre8ive Marketing Ltd (“Cre8ive”) and the client (“client”) for the provision of certain marketing services.
The client acknowledges that it has read, understood and agreed to these Terms & Conditions, and agrees to be bound by them. Any engagement of Cre8ive services shall constitute acceptance of the Terms and Conditions by the client. Should more than one client engage Cre8ive for the same services the clients shall be jointly and severally bound by it.
Cre8ive Marketing is agreeable to providing such services to the client according to these Terms & Conditions.
CLIENT RESPONSIBILITES AND OBLIGATIONS
- The client and any subcontractors will provide accurate, complete and timely information and materials to Cre8ive to avoid impacting project delivery.
- Where the client provides photographs, illustrations or other visual materials, they shall be of professional quality and in a form suitable for reproduction without further preparation or alteration. Client shall pay all fees and expenses required to bring non-conforming materials up to such standards.
- Client Approvals. The client will approve all final proofs. Cre8ive will make all efforts to ensure that no information is misrepresented. However, the client assumes all responsibility for final content that is published and Cre8ive accepts no responsibility for any errors.
- Client Changes. In order to avoid errors, text changes and corrections will not be taken over the telephone (unless very minor) and must be provided via email. Any text with extensive changes must also be provided as marked up hard copy, indicating the revised text.
- Cre8ive’s ability to perform its obligations are dependent on the client fulfilling its obligations. Cre8ive shall not be liable for any costs, charges or losses sustained by client arising directly from any failure of client to fulfill its obligations. Cre8ive is not responsible for delays, errors or omissions resulting from client’s action or inaction, and will not be liable for any claims related to materials, specifications, and information provided by client to Cre8ive for the Project.
- Cre8ive may change these Terms & Conditions, by giving the client notice.
- Invoices will be sent by email to the email address notified by the client. The client must notify Cre8ive immediately of any change of email address.
- Payment of all invoices must be made in full on or before the 20th day of the month following invoice date unless otherwise stated in Cre8ive’s invoice to the client
- Invoices not paid by due date may be charged interest at 10% p.a. calculated daily on the amount outstanding.
- If payment of the invoice is outstanding for 60 days from due date, a collection agency will be sought by Cre8ive to collect monies owing by the client. Interest at 10% p.a, calculated daily on the amount outstanding, collection agency charges and legal costs will be added to the invoice amount owing by the client. In addition to the costs of recovery the client must pay interest at 10% on the amount outstanding from the due date until payment in full and such interest shall continue to be payable notwithstanding any judgment obtained by Cre8ive against the client.
- Unless otherwise stated, all charges and other amounts payable are exclusive of GST.
- If the client believes Cre8ive has made an invoicing error, the client must notify Cre8ive in writing within 7 days from the date of receipt of the invoice, otherwise the invoice shall be deemed to have been accepted by the client. The client shall remain liable to make payment of an undisputed portion of an invoice.
- The Client agrees not to use or duplicate any material produced by Cre8ive until full payment has been made.
DELAYS AND TERMINATION
- All payments received are not refundable in the event the project or the relationship is terminated for any reason. All accrued project hours will be billed at the hourly rate.
- If any part of the work for this project is delayed for longer than 30 days, Cre8ive will invoice for work completed.
- Work to be carried out by Cre8ive may be detailed in an estimate. Any alterations or additions requested by the client following the estimate may be accepted at the discretion of Cre8ive. Estimates are based upon the information provided by the client. Cre8ive reserves the right to amend the estimate, deliverables and/or timetable if any alterations or additions requested by the client occur to the original specifications. Cre8ive reserves the right to charge in addition to the estimate: extra production, time and expenses, equipment hire charges or extra media expenses when the original estimate has been exceeded due to the project extending or changes by the client.
- Cre8ive also reserves the right to adjust the rates of the project and include in its final invoice extra costs incurred by Cre8ive because of interruptions, delays, overtime, unusual hours or errors by the client or any third party.
INTELLECTUAL PROPERTY RIGHTS
- “Intellectual property rights” means all patents, rights to inventions, copyright (including rights in software) and related rights, trademarks, internet domain names, rights to goodwill, rights in designs, database rights, rights in confidential information (including know-how) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or shall subsist now or in the future in any part of the world.
- The client confirms that they are supplying and using material that they have ownership to or have the rights to use. Any royalties or authorisation to use any media, logos, production titles and phrases of any description for the purposes of production has been sought and approved by the appropriate association, individual or company and appropriate fees paid (if any) by the client, the client further guarantees that Cre8ive will not be liable for any grievances caused by non-compliance of right to use material or copyright issues.
- Cre8ive guarantees all elements of the work delivered to the client are either owned by Cre8ive or Cre8ive has obtained permission to provide this to the client. When Cre8ive provides text, images or other artwork to the client, Cre8ive agrees to protect the client from any claim by a third party that the client is using their intellectual property.
- Provided the client has paid for the work and that this contract hasn’t been terminated, Cre8ive will assign all intellectual property rights to the client as follows:
- The client owns the projects designed and developed for the client plus the visual elements Cre8ive has created for it. The client owns all intellectual property rights of text, images and data provided by the client, unless someone else owns them. Cre8ive reserves the right to retain ownership of any material and its copyright until full payment has been made.
- Cre8ive owns any intellectual property rights developed by Cre8ive prior to, or developed separately from this project and not paid for by the client. Cre8ive shall own and retain all rights to any and all concepts, ideas, designs, proposals and other work and materials (collectively, “the Work”) which have been presented to the client but not included in the final work product.
- All phone calls, correspondence and documents arising between Cre8ive and the client will be treated as confidential unless consent by email has been granted by both parties.
- Save as required by law, or to obtain advice from an accountant or lawyer, Cre8ive and he client shall not disclose any confidential information which either party obtained during or arising out of the course of the contract between them to anyone (except the client’s employees on an as need basis).
- Services supplied by Cre8ive shall be provided without any express or implied guarantees, or warranties as to their accuracy, completeness, reliability, suitability or currency of Marketing Services and they are provided on an “as is where is” basis. Cre8ive does not warrant that the Marketing Services will be uninterrupted or error free, will meet client requirements, nor will they be free from external intruders (hackers), unauthorised virus or worm dissemination. Any timeframes are provided as a guide or estimate only.
- To extent permitted by law, Cre8ive, its directors and employees hereby expressly exclude all conditions, warranties and other terms which might otherwise be implied by statute, common law or equity.
- The client acknowledges that Cre8ive, its directors and employees shall have no liability for any direct, indirect or consequential loss or damage incurred by the client or any end user in connection with services supplied by Cre8ive, including, without limitation any liability for loss of income or revenue; loss or interruption of business; loss of profits; loss of anticipated savings; loss of data; loss of goodwill; wasted management; and for any other loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
- This does not affect liability of Cre8ive which cannot be excluded or limited at law. Without limiting foregoing, parties acknowledge that laws in certain jurisdictions may imply warranties and conditions which cannot be excluded, restricted or modified except to a limited extent. If any such laws apply, then to extent permitted by law of relevant jurisdiction, Cre8ive’s liability is limited to any one or more of the following in its sole discretion: (a) in case of any goods, replacement or repair of goods, or supply of equivalent goods, or payment of cost of repairing or replacing goods or supplying equivalent goods; and (b) in case of any services, supply of services again or payment of cost of having services supplied again.
- Without limiting foregoing, the client agrees that in no event shall Cre8ive’s aggregate liability exceed NZ$1,000.00.
- The client shall indemnify Cre8ive, its directors, employees and representatives from and against all actions, claims, suits, damages, liabilities or costs (including legal costs) arising from, or directly or indirectly related to provision of materials by the client, use of Marketing Services by the client or anyone else, or otherwise arising as a result of this Agreement.
- Notices by Cre8ive may be given by email to the email address notified by the client.
- Notices by the client must be emailed to email@example.com
- Emails sent by one party to the other party shall be deemed to have been received when sent.
- Cre8ive shall not be responsible for any delay, suspension or failure arising out of any circumstances outside of its reasonable control, including but not limited to, acts of God, governmental actions, labour difficulty, war or national emergency, terrorism, fire, explosion, flood, pandemics, an act or omission of a third party, inability to obtain any materials, equipment, facilities or services, failure of performance provided by others, internet interruption or virus, breakdown software, hardware or communication network.
- The client shall not, during the duration of any service supplied by Cre8ive, and for a period of one year thereafter, hire, engage, solicit, employ or contract the services of any of the employees or contractors of Cre8ive or others involved in the provision of such service.
ACCEPTANCE OF THE WORK PRODUCT
- ‘Work product’ is defined as the final deliverables. Each final work product or deliverable will be deemed accepted if, no later than the end of the business day, 14 days after delivered to the client, the client does not reject the Deliverable by sending Company written notice detailing the reasons for the rejection and reasonable modification guidelines.
SAMPLES AND CREDIT
- Cre8ive can use samples or photographs of the work created under this agreement for publications, their website and other promotional purposes (such as Cre8ive’s social media channels) once the project has been made public.
- The client agrees that it will preserve the “designed by” credit links in the footer of the website (if the client is engaged for this project), during and after ownership passes to and becomes the property of client. The client agrees that it will not attempt to in any way alter, modify, eliminate, or conceal the copyright attribution to Cre8ive so long as it uses the products created for it.
- Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement.
- If any of the provisions of these Terms and Conditions are held to be invalid or unenforceable in whole or in part they shall be deemed as severed and all other provisions will continue to be valid and enforceable.
- The waiver by either party of a breach, default, delay or omission of any of the provisions under these Terms and Conditions by the other party will not be construed as a waiver of any subsequent breach, default, delay, or omission of the same or any other provisions.
- If the client is a company or other incorporated body and if requested by Cre8ive it will nominate a person satisfactory to Cre8ive to act as guarantor and enter into a deed of guarantee for the due performance of all of its obligations under the contract with Cre8ive.