Terms and Conditions (T&C’s)
The following Terms and Conditions of Trade govern all work performed by the companies AXDC, XDC and TLC and may be altered at any time by any of the Companies. Any instructions or requests for services received by the Company from the Customer for the supply of Goods or Services via, e-mail, verbally, credit application or in writing, is deemed acceptance of Services supplied by the Company and shall constitute acceptance of the current Terms and Conditions of Trade. This agreement is a commitment to a “Common Sense First” approach formalised and is common place within the creative industry. Please take time to read through thoroughly and ensure you understand these terms and conditions before you commence a project with these companies.
1.1 “Seller” shall mean any one of the companies AXDC (Trading as Absolute XDC LIMITED) or XDC (Trading as XDC // XClint Design + Creative LIMITED or TLC (Trading as The Local Connection) and its successors and assigns acting in its capacity includes any person acting on behalf of and with the authority of the Seller.
1.2 “Customer” shall mean the Customer or any person acting on behalf of and with the authority of the Customer. “Customer” also means the entity or person requesting the services of the Company, as described on any accepted estimate, quotation, authority to act, or in any other request or instructions for services received, and is the entity or person who is the recipient of the services of the Company.
1.3 “Guarantor” means that person (or persons), or entity that agrees herein to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall have the same meaning as in section 2 of the Sale of Goods Act 1908 and are Goods or Services supplied by the Seller to the Customer (and where the context so permits shall include any supply of Creative Ideas, Concepts and Original Design Services as here in defined).
1.5 “Services” shall mean all services supplied by the Seller to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods or Services as defined above). “Services” shall mean all Services (including any documentation or any time spent by the Company which it believes will benefit the Customer) supplied by the Company to the Customer and includes any advice or recommendations and are as described on the invoices, estimates, quotations, work authorisation or any other forms as provided by the Company to the Customer, or as requested by the Customer, whether in writing, verbally or electronically. The Services shall be as requested or required by the Customer, and may be described in a letter of engagement, estimate or a quotation provided by the Company to the Customer, or may be of a type previously provided to the Customer or to an Associate of the Customer, or as the Company believes will benefit the Customer. The requirement for the Company to perform services for the Customer may extend beyond the term of this contract, and the Customer acknowledges that where an obligation to perform a Service, such as to provide information to a tax authority, is imposed on the Company, the Customer will pay for those services on a time and cost basis. The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated. The Company shall not be liable for any loss or damage whatsoever due to failure by the Company to deliver any Services promptly or at all.
1.6 All Services contain Creative Ideas, Original Design, Phrases and Concepts which contain “Copyright” and “Intellectual Property” (IP) that belong to the Seller and remain the Seller’s property under this Idea Disclosure Agreement (as part of these Terms and Conditions of Trade) as to such agreed time may be bought in full upon full payment or licensed to the Seller on licence payments subject to clause 15.
1.7 “Price” shall mean the cost of the Goods or Services as agreed between the Seller and the Customer subject to clause 4 of this contract. “Price” also means the amount payable for the Services as determined by the Company from time to time.
1.8 The following Terms and Conditions of Trade govern all work performed by the Company and may be altered at any time by the Company and can be viewed on the website www.xclint.com.
1.9 Any instructions or requests for Services received by the Company from the Customer for the supply of Services and/or the Customer’s acceptance of Services supplied by the Company shall constitute acceptance of the current Terms and Conditions of Trade.
1.10 “Portfolio” shall mean any display of the Seller’s Goods or Services on behalf of the Customer. The Company reserves the right to alter the appearance for the Company’s purposes. The Customer agrees that all partial, incomplete or finished Works may be displayed on the Company’s website or as a part of the Company’s Portfolio freely to the public and potential new Customers.
1.11 The Company will have the right to add the Customer’s name to the Company’s customer list and the right to enter the Work (the end result of the completed Service) into design competitions.
1.12 “Associate” means a person or entity that is an “Associated Person” of a Customer as that term is defined (or most widely defined) in the Income Tax Act in force at the time any service is provided.
1.13 “Proof” means any version of a the Work as a hard or soft copy that is currently work in progress.
1.14 “Final Proof” means the Final version of the Proof (with hopefully no changes to be made), where before publishing, must be signed off by the Customer to be deemed ready or “Good to go” to the print or dissemination process. This may be done physically on the Printer’s Contact Proof, Hard copy or electronically on the Soft Final Proof that was supplied via e-mailed by simply replying “That looks good”, “confirm”, “OK”, “Good to go” or to that effect.
1.15 “Excess Work” is defined as any work involving additions to the original Project Proposal/Estimate/Quote or changes to all pieces of Finished Artwork after sign off by an authorised representative of The Customer.
2. COMMENCEMENT AND ACCEPTANCE
2.1 Any instructions received by the Seller from the Customer for the supply of Goods and Services shall constitute acceptance of the full Terms and Conditions of Trade contained herein.
2.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly liable for all payments of the Price.
2.3 Acknowledgment or acceptance of an estimate, quote or email from the Seller, a verbal request or any form of response from the Customer is evidence that these Terms and Conditions of Trade are accepted by the Customer. The Terms and Conditions of Trade are irrevocable and can only be rescinded in accordance with these Terms and Conditions of Trade or with the written consent of the Seller. NB: These Terms and Conditions of Trade are freely available to the Customer.
2.4 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the Seller in writing nor is the Seller bound by any such unauthorised statements.
2.5 The Customer agrees to provide written approval or emailed approval of the submission before any work is commenced, this is deemed as a Letter of Agreement between The Customer and XDC concerning the work outlined in the XDC Project Proposal/E-mail/Estimate/Quote.
3.1 The Goods and Services are described on the invoices, quotation, estimate, work authorisation or any other work commencement forms as provided by the Seller to the Customer.
3.2 The Customer agrees to supply for free, in addition to fees for service, any number up to 10 of printed samples of every item produced for The Customer by XDC during the course of this project (quantity to be specified by XDC).
4. PRICE AND PAYMENT
4.1 At the Sellers sole discretion the Price shall be either;
(a) the price indicated on invoices provided by the Seller to the Customer in respect of Goods and/or Services; or
(b) the Seller’s current price at the date of delivery of the Goods and/or Services according to the Seller’s price list; or
(c) the Sellers quoted Price subject to clause 4.2, which shall be binding upon the Seller provided that the Customer shall accept verbally, in writing or electronically the Sellers estimate or quotation within thirty (30) days.
(d) On a Time and Cost basis, being a multiple of the time spent by the Company and the applicable Hourly Rate of the person or persons who completed the work on behalf of the Company; or
(e) The Company’s Estimated or Quoted Price which shall be binding upon the Company for a period of 30 days unless otherwise specified in the estimation or quote, provided that the Customer shall accept the Company’s estimation or quotation verbally, in writing or electronically within thirty (30) days or by way of financial deposit; or
(f) On a Value Received basis, being an amount determined by taking into account the benefit of the work to the Customer.
(g) At the Company’s sole discretion any disbursements or costs of providing any service are in addition to the Price.
(h) Where more than one Customer has requested or received services from the Company, the Customers shall be jointly and severally liable for all payments of the Price.
(i) By prior agreement, payment may be made by a deposit or installments in accordance with the Company’s payment schedule.
(j) Time for payment for the Services shall be of the essence and will be stated on the invoice, quotation or estimate. If no time is stated then payment shall be due on the 20th of the month following the month the invoice is for. Normal time for payment is seven (7) days from the date of the invoice.
(k) Payment is to be made by cash, cheque, direct credit, or by any other method agreed between the Customer and the Company.
(l) GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
(m) If the Customer defaults on payment the Company charges a $50+GST SURCHARGE on any invoice where payment is received AFTER the required date and additionally a default penalty at 15% per annum, calculated on a daily basis, on the unpaid portion of the price from due date until payment in full is made.
(n) If a credit or debt collection agency is engaged to obtain payment any costs incurred in the course of collection of outstanding monies owed by the Customer, including commissions, penalties, surcharges and legal expenses, will be payable by the Customer.
(o) Termination of this contract needs to be made in writing within seven (7) days of any print deadline and incurs the cost of all Works to date, disbursements and any other outstanding payments up to the end of the term of this contract or quote.
(p) If you have overdue fines or reparation this information may be included as part of a credit check about you. This may result in you being declined credit and stop you from getting the things you want. XDC can now get access to Ministry of Justice information re unpaid fines (where no current repayment arrangements are in place). The Customer grants permission to XDC to access such records of this specific Privacy Clause.
4.2 The Seller may by giving notice to the Customer (verbally or otherwise) at any time before delivery increase the Price of the Goods to reflect any variation from the plan of scheduled works or specifications beyond the reasonable control of the Seller which increase the cost of the Goods and/or Services by more than 20% of the quoted Price.
4.3 Experimental work, preliminary sketches, dummies and other creative work including intermediate materials and any resultant goods must be paid for by the Customer unless the cost is separately identified and provided for as part of the quoted price and the Customer shall not use any proposal or idea from the Seller for content medium, layout or presentation until such work has been paid for. This is subject to clause 15.
4.4 Time for payment for the Goods and Services shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
4.5 The Seller may withhold delivery of the Goods until the Customer has paid for them, in which event payment shall be made before the delivery date.
4.6 At the Seller’s sole discretion, payment for Customers shall be due on 20th each month following the e-mailing or posting of a statement or invoice to the Customer’s address or address for notices.
4.7 The Price shall be increased by the amount of any freight and packaging and GST and other taxes and duties, which may be applicable, except to the extent that such taxes are expressly included in any estimate or quotation given by the Seller.
4.8 The Customer agrees to pay a non-refundable 50% deposit of the estimated/quoted amount to commence any project, with the balance payable prior to delivery. If the work time exceeds 4 calendar weeks in duration, The Customer agrees to a progress payment of 50% of the balance per month until the conclusion of the project, with any outstanding amount payable in full upon delivery.
4.9 It is agreed that the Price for Service shall be the cost of the Estimates unless work undertaken exceeds work outlined.
If work undertaken exceeds the items specified, The Customer agrees to pay appropriate Price for the excess work.
5. DELIVERY OF GOODS
5.1 Delivery of the Goods shall be made to the Customer’s address . The Customer shall make all arrangements necessary to take delivery of the goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Customer at the Seller’s address.
5.2 Delivery of the Goods to a carrier, either named by the Customer or failing such naming to a carrier at the discretion of the Seller for the purpose of transmission to the Customer, is deemed to be a delivery of the Goods to the Customer.
5.3 The costs of carriage and any insurance which the Customer reasonably directs the Seller to incur shall be reimbursed by the Customer (without any set-off or other withholding whatever) and shall be due on the date of payment of the Price. The carrier shall be deemed to be the Customer’s agent.
5.4 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.5 The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered be either greater or less than the quantity purchased provided that;
(a) such discrepancy in quantity shall not exceed 5%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
5.6 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.7 The Seller shall not be liable for any loss or damage whatsoever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
6.1 If the Seller retains title to the Goods nonetheless all risk for the goods passes to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to title to them passing to the Customer, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms and conditions. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
7.1 The Customer shall inspect the Goods on delivery and shall within thirty (30) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
7.2 For defective Goods which the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods provided that:
(a) the Buyer has complied with the provisions of clause 7.1; and
(b) the Goods are returned at the Seller’s cost within seven (7) days of the delivery date; and
(c) the Seller will not be liable for Goods which have not been stored or used in a proper manner.
8. PROOFS, ERRORS AND LIABILITY
8.1 The Seller provides no guarantee that colour copies or production prints will exactly match colour Proofs because of variation in Proof preparation, monitor displays and variations in methods and substrates.
The Seller will however use its best endeavours to provide a commercially acceptable finished dummy product or Proof of the finished product.
8.2 The Seller is not liable for errors or variations in the finished Goods where such errors or variations were contained in the proof approved by the Customer, either via e-mail, signed Proof or verbally agreed upon.
In the event of the Company making any error or omission in the services provided to the Customer, the Company’s liability is limited to the invoiced value of the assignment in which the error was made.
8.3 It is the responsibility of the Customer to pay when due. While the Company may provide reminders about payments due, the Company accepts no liability for failing to provide such reminders.
8.4 It is the responsibility of the Customer to correctly determine its liabilities, and the Customer acknowledges that any decision may involve uncertainty as to the correct treatment to be applied or position to be adopted, and releases the Company from any and all liability for any additional, penalties or interest that may be payable due to a position being disallowed, whether the position has been made known explicitly to the Customer or not.
8.5 It is the sole responsibility of the Customer or representative thereof to fully check all details contained within the Final Proof and sign it off. The Company is not liable for any or associated print or consequent error or omission costs once the Final Proof has been signed off by the Customer where it has been deemed “Good to go” to print or publication. The Printer or Supplier retains the right to source payment directly from the Customer under their Terms and Conditions if the Customer does not want to pay due to any error or omission that has been mis-proofed by the Customer. The Company is not liable for errors or omissions on artwork that has been signed off by the Customer, you as the Customer, indemnifies the Company against all mistakes, infringements, liabilities, damages and loss of earnings as a consequence.
8.6 The Customer indemnifies the Company against all mistakes, infringements, liabilities, damages and loss of earnings as a consequence of false or faulty information.
8.7 Liability of the Company is to try to meet the print deadlines if humanly possible. If an unforeseen problem or an act of god slows the process, communication will be sent. Conversely, if the Customer holds up the printing process for any reason, it is that Customer who is liable for any consequences, legal or monetary, if they have a problem with the delay.
8.8 Whilst every care is taken in pre-print production, it remains the Customer’s responsibility to proof all text, figures and colour specification prior to print, and the Seller accepts no responsibility for inaccuracies within copy after the sign off of the Final Proof. The Seller is not liable for any artwork that has been signed off by Customer’s, you as the Customer, indemnifies the Seller against all mistakes, infringements, liabilities and damages after that point of the process.
8.9 Changing any details whatsoever after signing off the Final Proof, whilst at the printer (changing artwork), attracts an additional origination fee from the printer. Usually this is upwards of $200 for consumables. You must realise that changing artwork at print time breaks the deadline and the Terms and Conditions of Trade of this contract.
8.10 The Customer is to proof read and approve all final copy before the production of Finished Artwork. Signing of the Electronic Proof Form or the e-mail verification of the Client’s Representative shall be conclusive as to the approval of all artwork prior to their release for printing, implementation or installation. While XDC takes all care to avoid errors, XDC accepts no responsibility for typographical errors, spelling mistakes, or incorrect information on any project approved by a client. No refunds or reprints are given after a final approved design has gone to print due oversights by The Client’s proof reading.
8.11 With all printing there may be some colour variations from what you have seen on screen, to what the final product looks like, and previous orders. This is due to the nature of CMYK printing and bulk-run printing system. There will be no reprints at our expense.
9. DEFAULT AND CONSEQUENCES OF DEFAULT
9.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.
9.2 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Seller from and against all of the Seller’s costs and disbursements including legal, on a solicitor and own Customer basis and in addition all of the Seller’s nominee’s costs of collection.
9.3 Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods or Services to the Customer and any of its other obligations under the Terms and Conditions of Trade.
The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller exercised its rights under this clause.
9.4 If any account remains unpaid at the end of the second month after supply of the Goods or services the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable in addition to the interest payable under clause 9.1 here-of.
9.5 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to meet its payments as they fall due, or;
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors, or,
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer, then without prejudice to the Seller’s other remedies at law:
(a) the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
(b) all amounts owing to the Seller shall, whether or not due for payment, immediately become due and payable.
10.1 It is the intention of the Seller and agreed by the Customer that property in the Goods or Services shall not pass until:
(a) The Customer has paid all amounts owing for the particular Goods or Services, and
(b) The Customer has met all other obligations due by the Customer to the Seller in respect of all contracts between the Seller and the Customer, and that the Goods or Services, or proceeds of the sale of the Goods or Services, shall be kept separate until the Seller shall have received payment and all other obligations of the Customer are met.
(c) Copyright of the Goods or Services belong to the Seller until all obligations set out in this document are met, and
(d) Intellectual Property (IP) belong to the Seller until all obligations set out in this document are met, and
(e) Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership of rights in respect of the Goods shall continue.
It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from the Seller to the Customer the Seller may give notice in writing to the Customer to return the Goods or any of them to the Seller. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods or Services shall cease.
(b) If the Customer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
11. COMPILATION ENGAGEMENTS
11.1 A Compilation engagement is where the Company is asked to compile Financial Statements from records provided by the Customer.
11.2 The Company will prepare general purpose financial statements in accordance with generally accepted accounting practice in New Zealand and if compliance with generally accepted accounting practice does not result in a true and fair view of the financial information, additional explanations will be required to achieve that result.
11.3 The management of the Customer is responsible for the accuracy and completeness of the accounting records and other information supplied to the Company, and for the reliability, accuracy and completeness of the financial information compiled on the basis of those records and information.
11.4 The Customer acknowledges that the engagement cannot be relied upon to disclose internal control weaknesses, errors, illegal acts or other irregularities (e.g. fraud or non-compliance with laws and regulations applicable to the entity).
11.5 The Company may inform the appropriate level of management of the Customer or those charged with governance of the entity, as appropriate, of any matters that come to the Company’s attention in the course of performing any compilation engagement which cause the member to believe or suspect that errors or misstatements, illegal acts or other irregularities exist, either in relation to the entity or the financial information that is the subject of the engagement.
11.6 The Customer will stipulate the intended use and distribution of the information once compiled, including expected use of the information by third parties, in writing, where the intended user is not restricted to the Customer.
11.7 The Company confirms that the independence of the Company from the Customer or the appointing party is not a requirement for an engagement to compile financial information.
11.8 The Company confirms that any working papers prepared by the Company in relation to any service are the Company’s property.
11.9 Any compilation prepared by the company will carry a disclaimer similar to the following: A compilation is limited primarily to the collection, classification and summarisation of financial information supplied by the Customer. A compilation does not involve the verification of that information. The Company has not carried out an audit or a review assignment on the compilation material and therefore neither the Company nor its employees accept any responsibility for the accuracy of the materials from which the accounts have been prepared. Further, the compilation has been prepared at the request of and for the purpose of the Customer only and the Company accepts no responsibility on any ground whatever, including liability for negligence, to any other person.
12. PRIVACY AND CONFIDENTIALITY
The Customer agrees that the Company may use any information it has about the Customer relating to their credit worthiness and supply that information to any other person, including any legal, credit or debt collection agency for credit assessment, legal and debt collection purposes.
12.1 The Customer agrees that Company may supply confidential information to the Inland Revenue Department and other Government Bodies in the ordinary course of providing Services to the Customer’s company, and the Customer authorises the Company to supply such information as the Company deems appropriate to such bodies.
12.2 The Company agrees that other information gathered about the Customer is to remain confidential to the Company and is not to be disclosed to third parties except for the purpose of providing services to the Customer or as required by law.
12.3 If the Customer is an individual, the Customer has rights under the Privacy Act 1993 to access and request the correction of any personal information that the Company holds about the Customer.
12.4 At a time determined by the Company after the completion of any Service, the Company may supply to the Customer any documents it holds which relate to the service or the Customer. The Customer agrees to retain these for the period required by any law applying to the Customer, and to make them available to the Company at no cost, upon the request of the Company, for any lawful purpose. This provision shall survive the termination of any contract between the Company and the Customer, and shall continue until the Customer is no longer legally required to hold any records which have been provided by the Company.
12.5 It is agreed that employees of XDC shall not at any time either during the continuance of the work outlined or thereafter, except in the course of their duties, divulge any of the confidential affairs of The Customer or any of its clients or associated companies to anyone whatsoever without the previous consent in writing of The Customer.
13. PERSONAL PROPERTY SECURITIES ACT 1999
Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods previously supplied by the Seller to the Customer (if any) and all Goods that will be supplied in the future by the Seller to the Customer during the continuance of the parties relationship.
The Customer undertakes to:
(a) sign any further documents and/or provide any further information, such information to be complete, accurate and up-to-date in all respects, which the Seller may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any Goods charged thereby;
(c) not register a financing change stat or a change without the prior written consent of the Seller;
(d) give the Seller not less than fourteen (14) days prior written notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice); and
(e) immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales. The Seller and the Customer agree that nothing in sections 114(1a), 133 and 134 of the PPSA shall apply to these Terms and Conditions. The Customer waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
Unless otherwise agreed to in writing by the Seller, the Customer waives its right to receive a certificate statement in accordance with section 148 of the PPSA. The Customer unconditionally ratifies any actions taken by the Seller under and by virtue of the power of attorney given by the Customer to the Seller under clauses 11.1 to 11.5.
14. SECURITY AND CHARGE
Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable here-under have been met.
(b) Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clause indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own Customer basis.
(c) To give effect to the provisions of clause [11, 12.1 (a) to (b)] inclusive here-of the Customer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registrable or not) including such other terms and conditions as the Seller and/or the Seller’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Customer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Customer’s and/or Guarantor‘s name as may be necessary to secure the said Customer’s and/or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any ne y legal proceedings, and further to execute all or any documents in the Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
15. INTELLECTUAL PROPERTY
15.1 Where the Seller has designed or drawn Goods for the Customer, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Customer at the Sellers’ discretion. The Customer warrants that all designs or specifications supplied to the Seller or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customer’s order. In the case of the Seller proposing original, creative ideas and concepts, these are all vested to the Seller and are strictly under a nondisclosure agreement with the Customer not to use anything for other purposes. Copyright belongs to the Seller until such time the Price is paid in full or is licenced.
15.2 Work must be original and creative to be copyrightable. Here, “Originality” simply means that the Seller (designer) created the work and did not copy it from someone else. If, by some incredible chance, two designers independently created an identical work, each work would be original and copyrightable. “Creative,” in the Copyright Office’s definition, means that the work has some minimal aesthetic qualities. Artistry of graphic design, especially when uncopyrightable elements are arranged to create a new design, all graphic design is copyrightable and owned by the Seller unless otherwise stated. In this case ideas, titles, names and short phrases are copyrightable because they contain sufficient amounts of expression, and ideas that are protected by an this Idea disclosure agreement, which expressly provides compensation if the idea is used by the Customer or Third Party to which it is submitted.
15.3 Typeface and Calligraphy designs (singular or joined by way of ligatures) are automatically copyrighted if expressed in artwork, especially insofar if the characters are embellished, which belong to the Seller unless otherwise stated in writing (IP or Copyright document).
15.4 The Seller, as the copyright owner, has the exclusive rights to reproduce work; license work; prepare derivative works, such as a poster copied from a design; perform work; and display work. However, the owner of a copy of the work can also display it. Anyone who violates these rights is an infringer whom the designer can sue for damages and prevent from continuing the infringement. If the Seller were to have trouble proving actual damages, which include the Seller’s losses and the infringer’s profits, the law provides for statutory damages that are awarded in the court’s discretion in the amount of $750 to $30,000 for each infringement. If the Seller can prove that the infringement was willful, the court, under the copyright law, can award up to $150,000 in statutory damages. Infringers will also be required to pay attorney’s fees. However, to be eligible for statutory damages and attorney’s fees, designs or other works must be registered with the Copyright Office prior to the commencement of the infringement. For newly published works, registration within three months of publication will be treated as having taken place on the publication date for purposes of eligibility for statutory damages and attorney’s fees. It should be noted that the copyright law defines publication as the distribution of a work to the public by sale, other transfer of ownership, rental, lease or lending. Offering to distribute copies for to a group of persons for further distribution or public display also constitutes publication. Exhibiting a work on the internet would also be a publication as is emailing a message containing any Work.
15.5 Transfers and terminations. The copyright law explicitly states that copyrights are separate from the physical design, such as a mechanical or, more recently, digital storage media. Selling the physical design would not transfer the copyright, because any copyright or any exclusive right of use of a copyright must always be transferred in a written instrument signed by the Seller. Only a non exclusive right can be transferred verbally, such as when the Seller licenses a design to one Customer, such as a wallpaper company, but doesn’t make the transfer exclusive so that it can also be licensed to another Customer, such as a place mat company. Both exclusive transfers of copyrights or parts of copyrights and non exclusive licenses of copyrights can be terminated by the Seller during a five-year period starting 35 years after the date of publication or 40 years after the date of execution of the transfer, whichever period ends earlier. This right of termination is an important right, but it does not apply to works for hire or transfers made by will.
15.6 Copyright duration. Sellers now have copyright as soon as a design is created—without putting a copyright notice on it or registering it with the Copyright Office. Copyrights created after January 1, 1978, as well as those already existing in works not published or registered, will last for the designer’s life plus 70 years. If the designer is an employee, the copyright term will be 95 years from the date of first publication or 120 years from the year of creation, whichever expires first. In this case, however, the design will belong to the employer, since it was created as a work-for-hire.
15.7 The Seller and all consequent Suppliers agrees not to license the design or any images contained therein to competitors of the Customer.
15.8 For the purposes of this agreement, any sub-contractor, supplier, affiliated person and Customer agree to give full Copyright and IP ownership to the Seller’s owner.
15.9 Agreement to transfer Copyrights or IP may only be made to the Customer if the Price and any associated costs have been paid in full, and a professional Copyright or IP agreement has been entered into with a patent attorney.
15.10 Warranty of non-infringement is limited to “the best of our knowledge.“
Responsibility for ”Prior Art”, trademark and copyright search is solely the Customers.
15.11 It is agreed that all Works and Materials provided for The Customer by XDC will be free and clear of all liens and encumbrances and may be lawfully used by The Customer without infringing upon the rights of others including, and without limiting the generality of the foregoing, any copyright trade secret patent or trade mark rights of any third party.
15.12 The use of design proposals submitted but not approved by The Customer for the work outlined is strictly forbidden. Until final payment, XDC fully retains ownership of all artwork and website architecture. XDC reserve the rights to certain elements used to create your images including fonts, patterns, stock images, textures, colour palettes and other non exclusive items. XDC reserve the right to use stock images in the creation of designs if required.
15.13 Other than for the promotional use of XDC all Services provided shall be for the exclusive use of The Client’s said purposes only. Designs may not be used for other promotional items, website or printed materials without permission. Upon payment of all invoices, reproduction rights for all approved final designs created by XDC shall be outlined in the Project Proposal. For additional usage, price will be assessed as needed.
15.14 The Customer agrees to allow XDC to place a small credit on printed material, exhibition displays, advertisements and/or XDC’s own website or on the customer’s website. This will be in the form of a small logo or line of text placed towards the bottom of the page.
15.15 The Customer also agrees to allow XDC to place websites and other designs, along with a link to the client’s site on XDC’s own website for self promotional purposes.
16. ELECTRONIC IMAGES AND/OR FILES
16.1 It is the Customer’s responsibility to retain a copy of any electronic image or file supplied by the Customer to the Seller. The Seller is not responsible for accidental damage to any electronic material supplied and such material is held at the Customer’s risk. The Seller may charge for any additional translating or programming needed to utilise Customer files or images supplied and such charges shall be in addition to the quoted price. Upon such notice the rights of the editing or programming needed to utilise Customer supplied files or images and Customer to obtain ownership or any other interest in the Goods shall cease. Such charges shall be in addition to the estimated or quoted price. The Seller’s own electronic records and Master Files shall remain the property of the Seller and is subject to clause 15.
16.2 Sub-standard or corrupt files or work will not be published. Matching or swapping will occur and a Change Order may be issued to correct such artwork.
17. PRIVACY ACT 1993
17.1 The Customer and the Guarantor/s (if separate to the Customer) authorises the Seller to:
(a) collect, retain and use any information about the Customer, for the purpose of assessing the Customers creditworthiness or marketing products and services; and
(b) to disclose information about the Customer, whether collected by the Seller from the Customer directly or obtained by the Seller from any other source, to any other credit provider or any legal or credit reporting agency for the purposes of providing or obtaining a credit reference, legal or debt collection or notifying a default by the Customer.
17.2 Where the Customer is a natural person the authorities under (clause 17.1) are authorities or consents for the purposes of the Privacy Act 1993.
17.3 The Customer shall have the right to request the Seller for a copy of the information about the Customer retained by the Seller and the right to request the Seller to correct any incorrect Information about the Customer held by the Seller.
18. CUSTOMERS DISCLAIMER
18.1 The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Customer acknowledges that they buy the Goods or Services relying solely upon their own skill and judgement and that the Seller shall not be bound by nor responsible for any term, representation or warranty other than the warranty given in Clause 8, which shall be personal to the Customer and shall not be transferable to any subsequent Customer.
19. CONTRACTUAL REMEDIES ACT
19.1 The provisions of the Contractual Remedies Act 1979 shall apply to this contract as if section 15(d) of the Contractual Remedies Act which states that nothing in the Contractual Remedies Act shall affect the Sale of Goods Act 1908, were omitted from the Contractual Remedies Act 1979.
20. CONSUMER GUARANTEES ACT 1993
20.1 This agreement is subject, in all cases except where the Customer is contracting within the terms of a trade/business (which cases are specifically excluded), to the provisions of the Consumer Guarantees Act 1993. If the Customer is acquiring Services for the purposes of a trade or business, the Customer acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Services by the Company to the Customer.
Unpaid Sellers Rights To Dispose Of Goods In the event that:
(a) the Seller retains possess or control of the Goods; and
(b) payment of the Price is due to the Seller; and
(c) the Seller has made demand in writing of the Customer for payment of the Price in terms of this contract; and
(d) the Seller has not received the Price of the Goods, then, whether the title in the Goods has passed to the Customer or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Customer the loss to the Seller on such disposal.
21. CANCELLATION (BAIL-OUT CLAUSE)
21.1 The Seller may cancel these terms and conditions or cancel delivery of Goods and Services at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall promptly repay to the Customer any sums paid in respect of the Price for those Goods. That could be the Customer’s deposit minus Works already undertaken to date. The Seller shall not be liable for any loss or damage.
21.2 If the Customer notifies the Seller that Work is not acceptable this must be undertaken in writing within seven (7) days before any print deadline otherwise the Customer is liable for full print costs. The Seller should have the opportunity to effect a cure. If no agreement on the cure is made all Works are subject to clause 15 (where all copyrights and IP belong to the Seller) and cannot be used by another Seller or Third Party under this Cancellation clause subject to non-disclosure between all parties. The Price of all outstanding contracts become immediately due subject to clause 3.
22. ADDITIONAL EXPERTS
22.1 The Company reserves the right to utilise the services of outside organisations, sub-contractors or specialists in order to undertake any Services. The cost of the outside organisations will be disbursed to the Customer, or a Price for the service may be set under these terms.
23. TWO OR MORE CONTRACTS
23.1 Where, at any time, there is an Amount Owing to the Company under two or more contracts, the Company may apply a payment made by the Customer under the contract in such manner (including in such order and to any amounts owing to the Company, including under another Contract) as the Company thinks fit (despite any direction to the contrary and whether before or after any default by the Customer). The security interest provided for by these Terms and created by the Contract also secures the Amount Owing under any other Contract, and each Contract (and these Terms) shall be construed accordingly.
23.2 Governing Law. The Contract and these Terms are governed by the law of New Zealand.
24.1 If any provision of these Terms and Conditions of Trade shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
24.2 All Goods and Services supplied by the Seller are supplied subject to the laws of New Zealand and the Seller takes no responsibility for changes in the law that affect the Goods or Services supplied.
24.3 The Seller shall be under no liability whatsoever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these Terms and Conditions of Trade.
In the event of any breach of this contract by the Seller the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
24.4 Neither party shall be liable for any default due to any act of God, terrorism, war, strike, lock out, industrial action, flood, storm or other event beyond the reasonable control of either party.
24.5 The Customer shall not set off against the Price amounts due from the Seller.
24.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
24.7 The Seller reserves the right to review these Terms and Conditions of Trade at any time and from time to time.
If, following any such review, there is to be any change in such Terms and Conditions of Trade, that change will take effect from the date on which the Seller updates the document and notifies the Customer of such change.
24.8 The Seller is not liable for infringements and royalty payments, this is solely the Customer’s responsibility.
24.9 If the Customer causes a serious delay, a delay penalty or a restart fee may be charged by the printer and in some cases close to print deadlines, the project may be pulled or both. This is at the discretion of the printer and the Seller and is payable by the Customer.
24.10 Website design post-completion alterations. Once web design is complete, XDC will provide the customer with the opportunity to review the resulting work. XDC will make one set of minor changes at no extra cost within 14 days of the start of the review period. Minor changes include small textual changes and small adjustments to placement of items on the page. It does not include changes to images, colour schemes or any navigation features. Any minor changes can be notified to XDC by e-mail and confirmed by post. XDC will consider that the client has accepted the original draft, if no notification of changes is received in writing from the customer, within 14 days of the start of the review period.
24.11 Website Management Packages. Your website can be one of the most cost effective way to promote your small business.
The best sites are always well maintained.
What about unused hours?
— All unused hours for any month are carried over to the next month. However, hours cannot be carried over from year to year.
How is the maintenance billed?
— All work is billed in 15 minute increments.
How long are the Web Manage contracts?
— Each plan lasts for a 12 month period.
Can I cancel our contract if I wish?
— Yes, we require 30 days written notice only. This notice may be e-mailed or posted.
Can we use hours in advance?
— No, hours must be accrued before they can be used.
What can we use our maintenance hours for?
— The uses are many, they include content updating, web page design, search engine optimisation, online marketing & research.
24.12 Amendments to these Terms and Conditions Of Trade. All and any amendments to the Terms and Conditions Of Trade outlined above must be provided in writing by The Seller and signed by an authorised representative of The Customer prior to the commencement of work outlined in this submission.
This can be agreement verbally, via email or in writing. Any engagement notice.
24.13 The Customer agrees to opt in to email newsletters from time to time and can unsubscribe at any point through the email newsletter’s mechanisms.
24.14 XDC will not sell the Customer’s private details, for example the Customer’s email address, to any other third party.