As used herein and throughout this Agreement:
1.0 Spicer Design is the trading name used and owned by Beau Spicer, a sole business operator. All liabilities under the name Spicer Design rest with Beau Spicer.
1.1 Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
1.2 Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under NZ Law.
1.4 Deliverables means the services and work product specified in the Proposal to be delivered by Spicer Design to Client, in the form and media specified in the Proposal.
1.5 Designer Tools means all design tools developed and/or utilised by Spicer Design in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
1.6 Final Art means all creative content developed or created by Spicer Design, or commissioned by Spicer Design, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Spicer Design’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.7 Final Deliverables means the final versions of Deliverables provided by Spicer Design and accepted by Client.
1.8 Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Spicer Design and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
1.9 Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
1.10 Services means all services and the work product to be provided to Client by Spicer Design as described and otherwise further defined in the Proposal.
1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.12 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
The terms of any Proposal created by Spicer Design shall be effective for 30 days after presentation to Client. In the event the proposal is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3. FEES AND CHARGES
In consideration of the Services to be performed by Spicer Design, Client shall pay to Spicer Design fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable taxes, even if calculated or assessed subsequent to the payment schedule. Where no price is stated in writing or agreed requested work will be undertaken at the standard hourly rate set forth by Spicer Design. The price may be increased by the amount of any reasonable increase in the cost of supply of the Goods that is beyond the control of Spicer Design between the date of the contract and delivery of the Goods.
Any expenses that are deemed out of the ordinary and requested by the client will be billed in addition to the normal proposal (e.g. non-local travel costs)
3.3 Additional Costs
The Project pricing includes Spicer Design’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses, stock photography or illustrations and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
All invoices are payable by the 20th of the month following the invoice unless an alternative payment plan is agreed to. A monthly service charge of 2% (minimum $25) is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Spicer Design reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.
3.5 Payment Schedule
Where there is no fixed proposal for services or no payment schedule set within a proposal all work shall be billed as it is done, whether this completes a project or not. Where the project is not completed invoices shall be treated as progress payments toward the completed project. Should a scheduled or non-schedule progress payment not be paid on time work and timelines (including any timeline obligations) will cease until the required payment is made.
4.1 General Changes
Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Spicer Design’s standard hourly rate. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Spicer Design may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
4.2 Substantive Changes
If Client requests or instructs Changes that amount to a revision of at least 15% of the time required to produce the Deliverables, and or the value or scope of the Services, Spicer Design shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Spicer Design.
Spicer Design will prioritise performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Spicer Design. Spicer Design shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Spicer Design’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Spicer Design’s obligations under this Agreement.
Spicer Design will exercise commercially reasonable efforts to make all necessary corrections prior to providing Deliverables to Client. Client, within 5 business days of receipt of each Deliverable, shall notify Spicer Design, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Spicer Design will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
5. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making with parties other than Spicer Design;
(b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
(c) final proofreading and in the event that Client has approved Deliverables but has errors, such as, by way of example, but not limited to, typographic errors or misspellings, that remain in the finished product, the Client shall incur the cost of correcting such errors.
(d) on-time payment of all accounts
Spicer Design retains the right to reproduce, publish and display the Deliverables in Spicer Design’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
8. RELATIONSHIP OF THE PARTIES
Spicer Design is an independent business, and shall provide the Services under the general direction of Client, but Spicer Design shall determine, in Spicer Design’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorised to act as agent or bind the other party except as expressly stated in this Agreement or Proposal. Spicer Design and the work product or Deliverables prepared by Spicer Design shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to the Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
8.2 Spicer Design Agents
Spicer Design shall be permitted to engage and/or use third party designers, developers or other service providers as independent contractors in connection with the Services. Notwithstanding, Spicer Design shall remain fully responsible for such third parties’ compliance with the various terms and conditions of this Agreement.
8.4 Non Exclusivity
The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Spicer Design, and Spicer Design shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Spicer Design.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client
Client represents, warrants and covenants to Spicer Design that
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
(b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,
(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
(d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
9.2 By Spicer Design
(a) Spicer Design hereby represents, warrants and covenants to Client that Spicer Design will provide the Services identified in the Agreement in a professional manner and in accordance with all reasonable professional standards for such services.
(b) Spicer Design further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Spicer Design and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Spicer Design, Spicer Design shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Spicer Design to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Spicer Design’s knowledge, the Final Art provided by Spicer Design and Spicer Design’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Spicer Design shall be void.
(c) Except for the express representations and warranties stated in this agreement, Spicer Design makes no warranties whatsoever, Spicer Design explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
10.1 The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Spicer Design which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Spicer Design, Spicer Design’s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
10.2 Except as otherwise provided by clause 10.1 Spicer Design shall not be liable for:
10.2.1 Any loss or damage of any kind whatsoever, arising from the supply of Goods by Spicer Design to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods provided by Spicer Design to the Customer; and
10.2.2 The Customer shall indemnify Spicer Design against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Spicer Design or otherwise, brought by any person in connection with any matter, act, omission, or error by Spicer Design its agents or employees in connection with the Goods.
11. TERM AND TERMINATION
11.1 This Agreement shall commence upon the Effective Date and shall remain effective until cancelled by either party.
11.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach.
11.3 In the event of termination, Spicer Design shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Spicer Design or Spicer Design’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
11.4 In the event of termination by Client and upon full payment of compensation as provided herein, Spicer Design grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
11.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Spicer Design’s invoices may include, and Client shall pay, expenses or costs that Client authorises by electronic mail. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
All notices to be given hereunder shall be transmitted in writing either by mail or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
12.3 No Assignment
Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
12.4 Force Majeure
Spicer Design shall not be deemed in breach of this Agreement if Spicer Design is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Spicer Design or any local, national or international law, governmental order or regulation or any other event beyond Spicer Design’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Spicer Design shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
12.5 Governing Law and Dispute Resolution
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of New Zealand without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through a forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. The parties hereby waive any jurisdictional or venue defences available to them and further consent to service of process by mail. Client acknowledges that Spicer Design will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Spicer Design shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control.
12.9 Consumer Guarantees Act
The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods from Spicer Design for the purposes of a business in terms of section 2 and 43 of that Act.
By their execution, the parties hereto have agreed to all of these terms and conditions.
1. RIGHTS TO DELIVERABLES OTHER THAN FINAL ART
1.1 Client Content
Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Spicer Design a nonexclusive, non-transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Spicer Design’s performance of the Services and limited promotional uses of the Deliverables as authorised in this Agreement.
1.2 Third Party Materials
All Third Party Materials are the exclusive property of their respective owners. Spicer Design shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Spicer Design shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Spicer Design from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
1.3 Preliminary Works
Spicer Design retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Spicer Design within 30 days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Spicer Design.
1.4 Original Artwork
Spicer Design retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Spicer Design within 30 days of completion of the Services.
Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of- pocket expenses due, Spicer Design assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Spicer Design for use by Client as a Trademark. Spicer Design shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Spicer Design from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
1.6 Designer Tools
All Spicer Design Tools are and shall remain the exclusive property of Spicer Design. Spicer Design hereby grants to Client a nonexclusive, non-transferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Spicer Design Tools comprising any software or technology of Spicer Design.
2. RIGHTS TO FINAL ART
Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, Spicer Design hereby assigns to Client all right, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. Spicer Design agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment.