1. General
The Terms and Conditions of Business set out below are designed to create transparency for both Sinclair Creative Agency Limited and you the Client to avert any misunderstandings.
Please peruse these Terms and Conditions of Business, if you are unclear on any points within these Terms please seek clarification. These Terms and Conditions shall prevail any other and apply to the provision of all of Our services.
1.1 Severability
If any provision of these Terms is, or becomes, unenforceable, illegal or invalid for any reason; the remaining provisions of these Terms shall remain in full force apart from such provision which will be deemed deleted.
1.2 Governing Law
The Terms will be governed by, and construed in accordance with, the laws of New Zealand and the parties submit to the exclusive jurisdiction of the courts of New Zealand.
1.3 Waiver and Forbearance
All of Our rights will remain in full force despite any delay in enforcement. We will not be deemed to have waived any condition unless that waiver is in writing and signed by a duly authorised officer of Ours. Any waiver will apply only to the particular matter in respect of which it is given.
1.4 Force Majeure
Neither party will be liable for any default due to any act of God, war, terrorism, strike, lockout, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of the relevant party, provided that this clause will not excuse a party from any obligation to make payment when due under the Terms.
2.Interpretation
2.1 In these Terms and Conditions of Business:
- Terms means these Terms and Conditions of Business to be read and construed with each Estimate, Quote, Proposal or Request for Services
- We, Us or Our means Sinclair Creative Agency Limited
- You or Your means the purchaser of products and / or services from Us
- Product and / or Service means any work commissioned and provided by Us to You
- Project Proposal means scope of works.
3. Formation of the contract
3.1 Estimates, Quotes and Proposals remain valid for acceptance within 30 days unless specified otherwise. No contract shall come into existence until Your order has been accepted by Us.
You can place an order by:
- Accepting our Estimate, Quote or Proposal
- via email, signed proposal or quote
- Paying a deposit
- Requesting Products and/or Services to be delivered in absence of an Estimate, Quote or Proposal.
4. Intellectual Property
4.1 Protection of Intellectual Property (IP)
Trademarking, protection and management of IP and infringements is Your sole responsibility and We will not be liable for any costs or losses, real or otherwise, that may be incurred.
4.2 Ownership of IP
On completion and receipt of full payment, the Intellectual Property Rights (IPR) of the final files for Your work will transfer to You. Until that time, We shall retain all IPR until full payment is received.
You will be entitled to use the work produced for the purpose for which it was intended however You (or any other person or entity) are not permitted to make use of, modify and on-sell any of Our IP, processes or documents received as part of the process.
Concepts and ideas not chosen as part of the project will remain Our property.
4.3 Reservation of rights
All rights not expressly granted hereunder are reserved to Us, including but not limited to Moral Rights, All Rights in sketches, comps, or other preliminary materials created by Us.
4.4 Authorship credit
We may use work in Our portfolio (including, but not limited to, any website that displays Our works). You do not have to display Our name together with work, unless being described with any editorial usage, but You may not seek to mislead others that work was created by anyone other than Us.
4.5 Releases
You agree to indemnify and hold Us harmless against any and all claims, costs, and expenses, including attorney’s fees, due to materials included in the product / service at Your request for which no copyright permission or privacy release was requested or uses which exceed the uses allowed pursuant to a permission or release.
4.6 IP in feedback
If you provide Us with ideas, comments or suggestions relating to the Product and the Products (“Feedback”);
- All IP Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works) are owned solely by Us; and
- We may use or disclose the Feedback for any purpose.
4.7 Pre-existing IP
Subject to clause 4.6, all pre-existing IP shall remain the property of the original owner. You warrant that You hold the rights to any pre-existing IP You provide to Us, including the rights to assign those rights to Us to the extent reasonably required to enable Us to create and provide the Products to You and You hereby indemnify Us in the regard. You grant Us an unrestricted royalty-free transferable irrevocable licence to use and copy Your pre-existing IP to the extent reasonably required to enable Us to create and provide the Products to You.
4.8 Deliverables
Delivery of necessary digital files supplied by Us to You in relevant final soft mechanical file formats such as .JPG, .PNG, .SVG, .EPS, .PDF, .MP4 excluding working design file formats, access to design files will incur additional cost to You.
5. Privacy & security
5.1 We will collect, use and hold information for the purpose of providing products or services for You.
- We may share information to any person / company who can assist in providing relevant products or services for You.
- We can use any work in Our portfolio, website and social media, including draft concepts, before and after examples, results of successful campaigns, testimonials received unless You have requested them to be kept confidential.
5.2 Security of Company Assets
Access to Our accounts will not be granted to You or any of Your suppliers which includes; servers, hosting environments, Google, Facebook and other business accounts of Ours.
6. Fonts & licensing
6.1 We may be required to purchase fonts, software, or licensing to be able to execute your projects. The investment in these items may not be transferable, should you wish to gain supply of fonts or other licensed assets for your own in-house use. It’s important that if you do receive copies of fonts or any other licensed assets that the licence terms continue to be met for purposes You are asking for these to be supplied for or that You purchase additional licenses as required.
6.2 To ensure continuity of service, all licenses will continue to be renewed unless advised otherwise in advance. This includes but isn’t limited to services such as domains, software and subscriptions purchased on Your behalf. Please advise Us in advance of any planned changes as subscriptions and licences are not refundable
7. Price & payments
7.1 Prices in all Estimates, Quotes and Proposals are estimated in New Zealand Dollars.
7.2 You agree to pay Us within seven days of the date of Invoice. In the event that work is postponed at Your request, We shall have the right to bill pro rata for work completed through the date of that request, while reserving all other rights under the Terms.
7.3 All payments You are required to make to Us under clause 7 are essential Terms of these Terms of Business and You acknowledge that if You fail to make any such payment to Us by its due date, then we have the right to suspend the provision of Services and We will not be liable for any loss or damage suffered by You or any third party as a result of such suspension.
8. Non-payment
8.1We have the right to charge Late Payment Fees on overdue invoices that include:
- Interest at 15% P.A.
- Administration fees.
8.2In the event You fail to pay Your invoices:
- We reserve the right to stop provisions of Products and/or Services for You immediately and will not be liable for any loss You may suffer as a result of such discontinuance.
- We reserve the right to withhold the supply of any files, products or services until receipt of full payment.
- We reserve the right to initiate debt collection and/or legal action.
- You shall be liable for all expenses and costs, including legal fees in relation to Us enforcing or attempting to enforce these Terms.
9.Proofing
Proofs of work may be submitted for Your approval. In the situation where You ask Us to sign-off on proofs on Your behalf or proceed directly to print and / or placement, We shall incur no liability for any errors. We shall also not be held accountable for any errors not corrected by You.
10.Websites, cms & browsers
10.1Digital third-party platforms including CMS platforms, browsers, plugins or licensed products can become out-of-date and unsupported by their providers over time. These situations are entirely out of Our control.
10.2Approval to ‘go live’ on the internet is considered approval and completion of the project and all work ongoing from that point is considered ongoing maintenance unless agreed in advance and will be charged on a time-taken basis.
10.3We will not actively build or develop on unsupported digital third-party platforms and will advise suitable upgrades or options which will involve investment if required. Maintenance in some circumstances may still be available for short-term fixes however no responsibility can be taken by Us for the security or stability of such work.
11.Delivery & Risk
11.1Delivery shall take place when the visual designs representing Your brand are signed-off by You.
11.2Notwithstanding that We may retain IP and or property in the Deliverables, all risk in the Deliverables passes from Us to You on Delivery.
11.3Despite the transfer of risk of the products as specified in clause 11.2, We may at Our sole discretion electronically store the Products for a period of 12 months following Delivery. During this time, if You request We may at Our sole discretion re-supply the Products to You at a reasonable fee.
12.Warranty
12.1Each party warrants that it has full power and authority to enter into, and perform its obligations, under these Terms.
12.2To the maximum extent permitted by law Our warranties are limited to those set out in these Terms. All other guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded.
12.3If we are supplying Products and / or Services to You for the purposes of trade or a business You agree that the provisions of the Fair Trading Act 1986, the Consumer Guarantees Act 1993 and any other applicable customer protection legislation do not apply to the extent permissible by law.
12.4If the Consumer Guarantees Act 1993 applies to the supply of Services, You have all of the rights and remedies provided under that Act.
13.Limitation of Liability
13.1 Our maximum aggregate liability under or in the connection with these Terms or relating to the provisions of the Products, whether in contract, tort (including negligence), breach of statutory duty or otherwise, is limited to supplying the Products or Services again, and / or paying the costs of having the Products and / or Services supplied again. In either case, Our liability is capped at an amount equivalent to the Price.
13.2We will not be liable to You under or in connection with these Terms or the Products for any loss of profit, revenue, savings, business, use / or goodwill; or consequential, indirect, incidental or special damage or loss of any kind.
13.3 We will not be held responsible, liable, or held to be in breach of these Terms for any failure to perform Our obligations under these Terms or otherwise, to the extent that the failure is caused by You failing to comply with Your obligations under these Terms, or by the negligence or misconduct of You or Your personnel.
13.4 You Indemnify Us against any loss or liability whether direct or consequential or costs of any nature whatsoever incurred or suffered by Us, arising from or in relation to any breach of Your obligations to Us whether under these Terms or otherwise in contract, or in tort (including negligence), breach of any statute of for any other reason.