These Terms & Conditions (“Agreement”) are between Cre8ive Marketing Ltd (“Cre8ive”) and the client (“client” or “you”) for the provision of certain marketing services described below.
You acknowledge that you have read, understood and agreed to these Terms & Conditions, and agree 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 enter into this agreement the Clients shall be jointly and severally liable for payment in full.
Cre8ive Marketing is only willing to supply marketing services on 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 reserves the right to update these terms and conditions from time-to-time and the client is responsible for regularly reviewing for updates.
- 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 within 60 days of due date may be charged interest at 10% p.a. calculated monthly 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 and collection agency charges and/or legal costs will be added to the amount owing payable by the Client. In addition to the costs of recovery the client will pay penalty interest on any unpaid amount from the due date until payment in full at the rate of 10% per annum and such penalty interest shall continue to be payable after and 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 us in writing 7 days from the date of receipt of the invoice, failing which the invoice shall be deemed to have been accepted by the client. The client shall remain liable to make payment of an undisputed portions of an invoice.
- The Client agrees not to use or duplicate any material produced by Cre8ive until full payment has been made.
- 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 made by the Client following the estimate may be at the financial discretion of Cre8ive dependent upon the extent of the alterations or additions. Cre8ive reserves the right to charge: 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 and these expenses may be on-charged to the Client in addition to original estimate.
- Any payments made in full or part, or indication of payment, indicates that the client has read and understood all of our Terms and Conditions.
- “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.
- We guarantee that all elements of the work we deliver to you are either owned by us or we’ve obtained permission to provide them to you. When we provide text, images or other artwork to you, we agree to protect you from any claim by a third party that you’re using their intellectual property.
- Provided you’ve paid for the work and that this contract hasn’t been terminated, we’ll assign all intellectual property rights to you as follows:
- You’ll own the projects we design and develop for you plus the visual elements that we create for it. You own all intellectual property rights of text, images and data you provided, unless someone else owns them. Cre8ive reserves the right to retain ownership of any material and its copyright until full payment has been made.
- We’ll own any intellectual property rights we’ve developed prior to, or developed separately from this project and not paid for by you. 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 correspondence and documents provided will be treated as confidential between the client and Cre8ive, unless consent has been granted by both parties involved.
- Save as required by law, the client shall not disclose any confidential information relating to Cre8ive or its afflilitates, which the client obtained during or arising out of this agreement, to anyone (except the client’s employees on an as need basis).
- These estimations are based upon the information provided by the client. Cre8ive reserves the right to amend the price and/or the deliverables timetable if any changes, additions or other client alterations occur to the original specifications. We reserve the right to adjust the rates of the project should Cre8ive incur extra costs because of interruptions, delays, overtime, unusual hours or errors by any party or third party, such extra costs will be added to the price.
- Marketing Services shall be provided without any guarantees, conditions or warranties as to its 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 your 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: (a) all conditions, warranties and other terms which might otherwise be implied by statute, common law or equity; and (b) any liability for any direct, indirect or consequential loss or damage incurred by you or any end user in connection with Marketing Services, or use of Marketing Services, 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, you agree that in no event shall Cre8ive’s aggregate liability exceed NZ$1,000.00.
- You 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 you, use of Marketing Services by you or anyone else, or otherwise arising as a result of this Agreement.
- 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.
- You shall not, during duration of this Agreement, and for a period of one (1) 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 Marketing Services.
- ‘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.
- Cre8ive can use samples or photographs of the work created under this agreement for publications, our website and other promotional purposes (such as our 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 we are 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.
- This contract stays in place and need not be renewed.
- In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Agreement.
- The waiver by either Party of a breach, default, delay or omission of any of the provisions of this Agreement by the other Party will not be construed as a waiver of any subsequent breach of the same or other provisions.
DELAYS AND TERMINATION
INTELLECTUAL PROPERTY RIGHTS
ALTERATIONS OR DEVIATIONS FROM THE BRIEF
ACCEPTANCE OF THE WORK PRODUCT
SAMPLES AND CREDIT