1. General
The Terms and Conditions of Business set out below govern the relationship between Sinclair Creative Agency Limited (“We,” “Us,” or “Our”) and You, the Client (“You” or “Your”), to ensure transparency and prevent misunderstandings. These Terms apply to all services We provide, including graphic design, branding, illustration, photography, web development, and video editing, and prevail over any conflicting terms unless expressly agreed otherwise in writing. Please review these Terms carefully and seek clarification if needed.
1.1 Severability
If any provision of these Terms is or becomes unenforceable, illegal, or invalid, the remaining provisions remain in full force, and the invalid provision will be deemed deleted.
1.2 Governing Law
These Terms are governed by and construed in accordance with New Zealand law. Both parties submit to the exclusive jurisdiction of New Zealand courts.
1.3 Waiver and Forbearance
Our rights remain in full force despite any delay in enforcement. No waiver of any term is effective unless in writing and signed by Our authorised representative, and such waiver applies only to the specific matter addressed.
1.4 Force Majeure
Neither party is liable for delays or defaults due to events beyond their reasonable control (e.g., acts of God, war, terrorism, strikes, natural disasters), except that this does not excuse Your obligation to make payments when due.
2.Interpretation
In these Terms:
- “Terms” means these Terms and Conditions of Business, read in conjunction with any Estimate, Quote, Proposal, or Request for Services.
- “We,” “Us,” or “Our” refers to Sinclair Creative Agency Limited.
- “You” or “Your” refers to the purchaser of Our products and/or services.
- “Products” and/or “Services” means any work commissioned and provided by Us, including graphic design, branding, illustration, photography, web development, and video editing.
- “Project Proposal” means a detailed scope of works; “Project Brief” means a concise outline of deliverables; “Deliverables” means the final files provided under clause 4.8.
- “Working Files” means editable source files (e.g., .PSD, .AI, .INDD, raw photography files, web code, or video project files) used to create Deliverables.
3. Formation of the Contract
3.1 Estimates, Quotes, and Proposals are valid for 30 days unless otherwise stated. A contract forms only when We accept Your order, which You may place by:
- Accepting Our Estimate, Quote, or Proposal via email, signed document, or payment of a deposit.
- Requesting Products and/or Services without a formal Estimate, Quote, or Proposal, subject to these Terms.
3.2Any variation to the agreed scope of work must be confirmed in writing by both parties and may incur additional costs, to be agreed prior to proceeding.
4. Intellectual Property
4.1 Protection of Intellectual Property (IP)
You are solely responsible for trademarking, protecting, and managing the IP We create for You, including handling infringements. We will take reasonable care to ensure Our work does not infringe known third-party IP at the time of creation but are not liable for any costs or losses arising from infringement claims unless caused by Our wilful misconduct.
4.2 Licence of Intellectual Property
Upon full payment of all Fees for a Project, We grant You a perpetual, irrevocable, worldwide, non-exclusive, royalty-free licence to use the final approved Deliverables (as supplied under clause 4.8) for the purposes specified in the Project Proposal, Project Brief, Quote or Statement of Work, in connection with Your business.
This licence does not include the right to:
(a)modify, adapt, or create derivative works from the Deliverables (except for minor sizing or colour adjustments required for production, where technically necessary);
(b)use the Deliverables (or any part of them) as a template, framework, style reference, or input/prompt for any generative AI, machine learning, or automated design tools;
(c)on-sell, sub-license, or transfer the Deliverables to third parties (other than for the purpose of printing, hosting, or distributing the final work as originally intended); or
(d)use the Deliverables for any other brand, product, or purpose outside the original scope.
We retain all copyright and other intellectual property rights in the Deliverables, including all concepts, drafts, Working Files, source materials, processes, and unused designs. Until full payment is received, any use by You is under a limited, revocable licence only.
4.3 Reservation of Rights
All rights not expressly granted are reserved to Us, including rights in sketches, concepts, drafts, Working Files, and preliminary materials. Moral Rights under New Zealand law remain with the creator.
4.4 Authorship Credit
We may showcase Our work in Our portfolio, website, social media, or promotional materials. You are not required to credit Us unless the work is used editorially, but You may not mislead others about the work’s authorship.
4.5 Releases
You indemnify Us against all claims, costs, and expenses (including legal fees) arising from materials You request We include in the Products/Services for which no copyright or privacy release was obtained, or where use exceeds permitted rights.
4.6 IP in feedback
Any ideas, comments, or suggestions (“Feedback”) You provide about the Products/Services, and any resulting IP (e.g. enhancements or modifications), are owned solely by Us. We may use or disclose Feedback for any purpose.
4.7 Pre-existing IP
Pre-existing IP remains with its original owner. You warrant that You hold the necessary rights to any pre-existing IP You provide, including permission for Us to use it as reasonably required to create and provide the Products/Services. You grant Us an unrestricted, royalty-free, transferable, irrevocable licence to use, copy, and adapt Your pre-existing IP for this purpose. You indemnify Us against any claims, losses, damages, or costs (including legal fees) arising from Your provision of pre-existing IP that You lack rights to use or that infringes third-party rights.
4.8 Deliverables
We will deliver the necessary digital files in final, industry-standard formats suitable for their intended use (e.g. PDF, JPG, PNG, SVG, EPS, MP4), as specified in the Project Quote, Project Proposal, Project Brief, or agreed Deliverables.
- Soft mechanicals (final delivered files such as PDF, JPG, PNG, etc.) are supplied for the licensed purpose only. They may not be reverse-engineered, converted into editable templates, or used as reference material for generative AI tools without Our prior written consent. Working Files remain Our property and are not included unless separately licensed under clause 4.9.
4.9 Release of Working Files
Working Files (including but not limited to .PSD, .AI, .INDD, raw photography files, web code, and video project files) are not included in the standard Deliverables or the licence under clause 4.2. Upon Your written request, We may release Working Files for an additional fee (to be quoted and agreed in writing). Upon full payment of that fee, We grant You a non-exclusive, royalty-free licence to use and adapt those Working Files solely for the original brand and purpose specified in the Project. This licence remains subject to the AI and derivative-works restrictions in clause 4.2. We reserve the right to decline any request for Working Files.
5. Privacy & security
5.1 We will collect, use, and hold Your information to provide the Products/Services and may share it with third parties assisting in delivery (e.g., printers, hosting providers).
Following Delivery, We may use the final work and related project materials (e.g., draft concepts, before-and-after examples, process visuals, campaign results) in Our portfolio, website, social media, or promotional materials to showcase Our services, unless You request confidentiality in writing prior to Delivery of the final files.
If You request confidentiality after Delivery, We will make reasonable efforts to remove the work from publicly accessible portfolio channels within 30 days. However, We retain the right to:
- Keep it in private archives, internal records, and award/competition submissions;
- Use anonymised or non-identifying versions (e.g., without client name or specific branding details) for marketing purposes.
This includes photography, web designs, branding, illustrations, video edits, and testimonials, provided such use does not breach third-party rights or disclose sensitive client information beyond the work itself.
5.2 Security of Company Assets
You and Your suppliers will not be granted access to Our accounts (e.g., servers, hosting, Google, Meta, or other business platforms).
5.3 Confidentiality
Both parties agree to keep confidential any non-public information disclosed during the project (e.g., business strategies, unreleased campaigns), except as required by law or agreed in writing. This obligation survives termination of the contract.
6. Fonts & licensing
6.1 We may purchase fonts, software, or licenses to execute Your project. These may not be transferable to You for in-house use, and You must comply with license terms or purchase additional licenses if required.
6.2 Licenses or subscriptions purchased on Your behalf (e.g., domains, software) will renew unless You notify Us in writing 30 days in advance. No refunds apply.
7. Price & Payments
7.1 Prices are in NZD, as estimated in Quotes, Proposals, or agreed for Services.
7.2 Invoices are due within 7 days of the invoice date unless otherwise agreed in writing. We may require a deposit (e.g., 50%) before commencing work, to be specified in the Quote or Proposal. If work is postponed at Your request, We may bill pro rata for completed work.
7.3 Timely payment is an essential term. Failure to pay by the due date allows Us to suspend Services without liability for resulting losses to You or third parties.
8. Non-payment
8.1 Overdue invoices incur:
- Interest at 15% per annum.
- Administration fees.
8.2 If You fail to pay:
- We may stop providing Products/Services immediately without liability.
- We may withhold Deliverables or Working Files until payment.
- We may initiate debt collection or legal action, with You liable for all costs (including legal fees).
9.Proofing
Proofs may be submitted for Your approval. If You delegate sign-off to Us or proceed without correction, We are not liable for errors missed by You.
10. Websites, CMS & Browsers
10.1 Third-party digital platforms (e.g., CMS, browsers, plugins) may become unsupported over time, beyond Our control.
10.2 ‘Go live’ approval for websites marks project completion; ongoing work thereafter is maintenance, charged by time unless agreed otherwise.
10.3 We will not develop on unsupported platforms but may suggest upgrades (at cost) or provide short-term maintenance without liability for security/stability.
11.Delivery & Risk
11.1 Delivery of the final work, as defined in clause 4.8, occurs when the work is signed off by You and provided to You, typically prior to payment per Our standard invoicing terms (due within 7 days from invoice date). IPR transfers to You only upon full payment, per clause 4.2.
11.2 Upon Delivery, all risk in the Deliverables passes to You. Until full payment, We retain all IPR and ownership, and Your use is subject to a limited, revocable license for the purpose specified in the Project Proposal, Project Brief, or agreed Deliverables.
11.3 Following Delivery, We may, at Our discretion, store Deliverables electronically for 12 months. We may re-supply them to You at a reasonable fee if requested. If payment is not received within invoicing terms, We may suspend Your license and pursue remedies under clause 8.
12.Warranty
12.1 Both parties warrant authority to enter these Terms.
12.2 To the extent permitted by law, Our warranties are limited to those herein; all other guarantees (e.g., under the Contract and Commercial Law Act 2017) are excluded.
12.3 For business/trade purposes, You agree the Fair Trading Act 1986 and Consumer Guarantees Act 1993 do not apply where legally excludable.
12.4 If the Consumer Guarantees Act 1993 applies, You retain all rights thereunder.
13.Limitation of Liability
13.1 Our maximum liability (in contract, tort, or otherwise) is limited to re-supplying the Products/Services or covering the cost of re-supply, capped at the Price paid.
13.2 We are not liable for loss of profit, revenue, savings, business, or goodwill, or any consequential, indirect, or special damages.
13.3 We are not liable for failures due to Your non-compliance, negligence, or misconduct.
13.4 You indemnify Us against all claims, losses, damages, or costs (including legal fees on a solicitor-client basis) arising directly or indirectly from Your (or any third party’s) breach of these Terms or related obligations, including (without limitation) any breach of the license restrictions in clause 4.2, such as unauthorised modification, creation of derivative works, or use of Our Deliverables as input, reference, or prompt for any generative AI, machine learning, or automated design tools.