TERMS & CONDITIONS
1. Conditions
1.1 These terms and conditions (the “Conditions”) supersede all previous conditions, including any terms and conditions of the Buyer and shall not be superseded, varied or waived other than by the express written consent of The Mark, and it is strictly understood by the Buyer that the Buyer enters into these Terms and Conditions solely and exclusively in reliance upon its own judgement and not upon any representation, condition or warranty made or alleged to be made by The Mark (including, but without limitation, The Mark’s employees, contractors, officers and agents).
1.2 In the Conditions the following definitions shall apply:
1.2.1 Buyer means the party contracting with The Mark to acquire the Work;
1.2.2 Work means all goods (including intermediate or finished goods) and services including design, consultancy, print, photography and signage;
1.2.3 Preliminary Work means all work done in the concept and preparatory stages including design, consultancy, print, photography, signage, artwork, copy writing, research and concept development;
1.2.4 Electronic File means any text, illustration or other matter supplied or produced by either party in digitised form on disc, hard drive, through a modem or by any alternate electronic means;
1.2.5 Intellectual Property means all copyright, patents, trademarks and trade names, design rights, inventions, know-how and other intellectual property including applications for registration and the right to make such applications;
1.2.6 GST means goods and services tax properly chargeable under the GST Act.
1.3 Any order or request for Work by the Buyer to The Mark shall be conclusive proof of the Buyer’s acceptance of the Conditions.
1.4 The Mark reserves the right to refuse to accept any order, in whole or in part.
2. Delivery
2.1 The Mark will make every effort to complete delivery on the date agreed but The Mark shall not be liable for late delivery or damages or losses of any kind (howsoever arising) as a result, directly or indirectly, of the late delivery of the Goods; nor will The Mark be required to accept cancellation of any Order by the Buyer because of late delivery of the Goods.
2.2 The Mark may deliver the Work by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the Conditions. The failure of the Buyer to pay for any one or more of the said instalments on the due dates, shall entitle The Mark (at its sole option) without notice to suspend further deliveries of Work pending payment by the Buyer andor treat this contract as repudiated by the Buyer.
2.3 It is The Mark’s usual practice to specify the delivery address in writing but, unless so specified or otherwise agreed in writing, the price of the Work excludes delivery. Delivery requirements including expedited delivery, rural or difficult access deliveries and significant distance from vehicular access shall entitle The Mark to make additional charges.
3. Payment
3.1 Quotations are based on The Mark’s current costs of production and are therefore valid for 30 calendar days from date of creation unless agreed otherwise in writing.
3.2 Quotations are in New Zealand Dollars (NZD) and are given exclusive of GST unless otherwise stated.
3.3 All Work carried out shall be chargeable including Preliminary Work whether or not the Buyer agrees to it being carried forward to production.
3.4 Any additional Work required by reason of the Buyer supplying inadequate copy, incomplete or incorrect instructions or insufficient material or late delivery of any of them shall be chargeable.
3.5 Unless credit facilities have been agreed in accordance with clause 4, payment shall become due prior to delivery of the Work and The Mark may, at its absolute discretion, require part or full payment in advance of starting the Work.
3.6 If the Work is suspended or delayed for any reason other than the default of The Mark then The Mark shall be entitled to charge for storage and for loss or wastage of materials and other resources to the extent they cannot otherwise be used. In the event that such suspension or delay extends for more than 30 days The Mark shall be entitled to immediate payment for all Work already carried out including materials and all additional costs.
3.7 The Buyer will be liable for and indemnifies The Mark for all expenses (including solicitor-own client legal costs), costs, losses and damages incurred or suffered by The Mark as a result (directly or indirectly) of any breach of these Terms and Conditions by the Buyer.
4. Credit Facilities
4.1 If credit facilities are granted by The Mark, payment is due 20th of the month following the start of work unless specifically otherwise agreed in writing. If any invoice remains unpaid by the due date interest at a charge of 1.5% of the total invoice value per month or part month will be incurred by the buyer. In addition all invoices (including those not otherwise then due for payment) shall become due and payable immediately and in any event all costs reasonably incurred by The Mark in collecting payment of any invoices shall be payable by the Buyer.
4.2 Credit facilities are granted entirely at The Mark’s discretion and as such facilities may be withdrawn by The Mark at any time without notice and without giving reasons in which event all invoices (whether or not otherwise due and payable) shall become due and payable immediately.
4.3 Should credit facilities be withdrawn, all work to date will be invoiced with this invoice due for immediate payment.
5. Materials Supplied or Specified by the Buyer
5.1 Electronic Files:
5.1.1 The Buyer shall maintain a copy of all Electronic Files provided by the Buyer to The Mark;
5.1.2 The Mark shall not be responsible for checking the accuracy of supplied input from any Electronic File unless otherwise agreed in writing;
5.1.3 Without prejudice to clause 5.1.2 if an Electronic File is not suitable for outputting on equipment normally adequate for such purposes without adjustment or other corrective action The Mark may either reject the file or charge for any additional costs incurred in taking such corrective action in each case without prejudice to its rights to payment for work done and materials purchased.
5.2 Other Materials:
5.2.2 Where materials are so supplied or specified by the Buyer and The Mark so advises the Buyer of their unsuitability that the Buyer instructs The Mark to proceed anyway The Mark shall have no liability for the quality of the Work.
6. Risk and Storage
6.1 All property supplied to The Mark by or on behalf of the Buyer shall, while it is in The Mark’s possession or in transit to or from The Mark, be deemed to be at the Buyer’s risk unless otherwise agreed in writing.
6.2 The Buyer warrants to The Mark that the Buyer owns or has absolute rights to use all Intellectual Property and/or other proprietary interests in all materials (including Electronic Files) supplied by or on behalf of the Buyer and shall indemnify The Mark in accordance with clause 22.1 in respect of any and all claims, costs and expenses arising.
6.3 Risk in the Work and all goods delivered in connection with it shall pass to the Buyer on despatch.
6.4 On completion of the Work The Mark may destroy materials without notice.
7. Materials & Equipment Supplied by The Mark
7.1 All equipment and materials owned or supplied by or on behalf of The Mark in the production of any part of the Work shall remain The Mark’s exclusive property.
8. Proofs & Variations
8.1 The Work is undertaken by The Mark on the basis that proofs will be provided, diligently checked by the Buyer and approved prior to production of the Work and The Mark shall not be liable for any errors (including errors introduced by The Mark) not corrected by the Buyer where the Buyer has been so provided with proofs.
8.2 Alterations required by the Buyer (except to the extent caused by the default of The Mark) and additional proofs necessitated thereby shall be chargeable. To the extent that style, type or lay-out is left to The Mark’s judgement, changes there from made by the Buyer shall be chargeable.
8.3 Where the Buyer waives any requirement to examine proofs The Mark shall not be liable for any errors in the finished Work and shall be indemnified by the Buyer against all resulting losses.
8.4 Colour proofs: due to differences in equipment, paper, inks and other conditions between colour proofing and production runs it is hereby agreed and accepted by the Buyer that a reasonable variation in colour between the proofs and the completed job will be acceptable (unless otherwise specifically agreed in writing).
8.5 Variations in quantity: estimates of quantity are conditional upon margins of 5% for Work being allowed for “overs” or “unders” which will be chargeable or deductible, unless otherwise agreed in writing.
8.6 The Mark may at any time change the specification of the Work as required to comply with any applicable safety or statutory requirements or which do not materially impair the function of the Work.
8.7 All implied and express terms, conditions and warranties relating to quality and/or fitness for purpose of the Work are excluded whether made by The Mark or its servants or agents or otherwise.
9. Insurance
9.1 The Buyer acknowledges that it has read and fully understood the Conditions including specifically clauses 2, 3, 5, 6, 7, 10 and 11 relating to delivery, risk, storage and exclusion of liability and acknowledges that it should insure such risks as it deems appropriate in all the circumstances.
10. Acceptance of Goods
10.1 The Buyer shall be deemed to have accepted the Work upon collection or delivery. The Buyer shall inspect all the Work within 48 hours of delivery and shall within 72 hours notify The Mark of any defects or if the Work is not in accordance with the contract. The fact that no such claim has been made shall be conclusive evidence in any proceedings or action of any kind between The Mark and the Buyer that the Goods at the time of delivery were acceptable to the Buyer.
10.2 In the case of damage, delay or loss of Work in transit or of non-delivery the Buyer shall so notify The Mark within 72 hours of delivery (or, in the case on non-delivery, within 72 hours of notification of despatch) and any claim must be made in writing to The Mark and the carrier within 5 days of delivery or in the case of non-delivery within 5 days of notification of despatch.
10.3 If the Buyer properly rejects any Work which is not in accordance with the contract or is defective the Buyer shall nonetheless pay in full for all Work unless the Buyer promptly notifies The Mark of such rejection in accordance with clause 9.1 and returns all such Work to The Mark within 14 days of delivery (in each case time being of the essence).
10.4 The Mark shall not be liable in respect of any claim for damage, delay or loss of Work in transit or of non-delivery unless the Buyer promptly notifies The Mark in accordance with clause 9.2 and returns all such Work (except in the case of non-delivery) to The Mark within 5 days of delivery (in each case time being of the essence).
11. General Exclusion and Limitation
11.1 The Mark shall be under no liability whatsoever to the Buyer for any consequential or indirect loss andor expense (including loss of turnover and profit) suffered by the Buyer arising out of a breach of this contract or negligence by The Mark.
11.2 In the event of a breach of this contract or negligence by The Mark the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of The Mark exceed the price of the Work.
11.3 The Mark shall be under no liability whatsoever in respect of the following which are hereby expressly excluded, except insofar as such exclusions may be unlawful:
11.3.1 for injury, damage of any kind or nature, direct, indirect, consequential or contingent to personal property howsoever caused;
11.3.2 for any costs incurred by the Buyer without the prior written approval of The Mark to repair, replace, or carry out any work on any of the Work, defective or otherwise;
11.3.3 for any other damage, losses and/or costs (including loss of Work or any delays, loss arising from delay or due to or incurred by way of labour supplies, substitute purchases, liabilities to customers and third parties and all other such losses of any nature) whether direct or indirect and whether or not resulting from or contributed to or aggravated by the default or negligence of The Mark, or its servants or agents or by any defect in the Work.
11.4 Where The Mark offers to replace defective Work the Buyer must accept such an offer unless it can show clear and reasonable cause for refusing to do so. If the Buyer opts to have the Work re-done by any third party without notifying The Mark in writing then the Buyer automatically revokes his right to any remedies from The Mark including but not limited to the right to a credit/refund of the price.
11.5 Where the Work is to be forwarded by or on behalf of the Buyer to a third party for further processing the Buyer will inspect and approve the Work (and will be deemed to have so inspected and approved it) prior to forwarding and The Mark shall not be liable for claims arising subsequent to the third party’s processing.
12. Cancellation and Returns of Goods for Credit
12.1 The Buyer shall not be entitled to cancel any Order or any part of an Order without the written consent of The Mark (which may be withheld by The Mark in its sole and absolute discretion), Where The Mark consents to cancellation of an order, in full or part. The Buyer shall pay to The Mark such charges as The Mark shall determine in respect of any materials ordered, labour expended and other incidental expenses in connection with the order.
12.2 No Goods will be accepted by The Mark for return and credit without the prior written authority of The Mark and then only on such terms and conditions as The Mark may agree.
13. Subcontracting
13.1 The Mark may sub-contract the production, manufacture, supply and/or delivery of the Goods or part of the Goods without notice to the Buyer.
14. Reservation of Ownership
14.1 Property, legal and beneficial, in any Work shall not pass to the Buyer until The Mark has received full payment for all sums then owed by the Buyer.
14.2 Work in respect of which property has remained with The Mark shall be kept identifiable as the property of The Mark and the Buyer shall at the Buyer’s own expense immediately return such Work to The Mark, or permit The Mark to enter into the Buyer’s premises to collect it should The Mark so request.
15. Unlawful Matters
15.1 The Mark may properly refuse to carry out any Work which is in its opinion or may be of an unlawful or defamatory nature or an infringement of the proprietary or other rights of any third party.
15.2 The Buyer shall indemnify The Mark in respect of any and all claims, costs and expenses arising out of any Work relating to any unlawful or defamatory matter or which infringes Intellectual Property or other proprietary or personal rights of any third party together with all costs on a full indemnity basis.
16. Force Majeure
16.1 The Mark shall not be liable for any claims, costs, damages or other losses suffered by the Buyer to the extent resulting from any failure on the part of The Mark, its servants and / or agents caused by or directly or indirectly due to war, terrorism, act of any Government or other competent authority, civil unrest, embargo, computer system failure, storm, earthquake, fire, accident, industrial action including strikes or lockouts, acts of God, illness, prevention from or hindrance in obtaining raw materials, energy or other supplies, or any other similar cause or matter beyond the reasonable control of The Mark.
17. Rights of Third Parties
17.1 It is acknowledged and agreed by the Buyer that the Conditions are not intended to be and shall not be enforced by any person other than the Buyer.
18. Jurisdiction
18.1 These Terms and Conditions will be governed by, and construed in accordance with, the laws of New Zealand. The parties irrevocably submit to the exclusive jurisdiction of the courts of New Zealand with respect to any legal action, suit or proceeding or any other matter arising out of or in connection with these Terms and Conditions.
19. Enforceability
19.1 Each provision of these Conditions is severable in whole or in part and if any provision is held to be illegal or unenforceable for any reason, only the illegal or unenforceable portion shall be affected and the remainder shall remain in full force and effect.
20. Dispute Resolution
20.1 If any dispute arises between the Buyer and The Mark (“the Dispute”), the Buyer and The Mark must first enter into discussions to attempt to resolve the Dispute (without taking any other action).
20.2 Where any Dispute is not resolved within ten (10) working days of notice of the Dispute being given by either party, The Mark shall be entitled (in its sole and absolute discretion) to refer the dispute to Mediation Services for mediation between
The Mark and the Buyer.
20.3 Any mediation agreement will be binding on all parties and considered as the conclusion of the dispute.
21. Design and Photography Services
21.1 The Buyer shall provide a clear written specification to The Mark (including full details of the product to be designed and timescales) and will promptly respond to all enquiries raised by The Mark about such specification and the Buyer’s requirements.
21.2 All chosen Intellectual Property created by The Mark pursuant to this contract shall be the property of the Buyer provided always that The Mark shall be entitled to retain copies for the purposes of marketing and further design development. All concepts not chosen will remain the property of The Mark.
21.3 The Mark shall be under no liability whatever to the Buyer in respect of any loss and/or expense suffered by the Buyer arising out of any design created or developed by The Mark which infringes or is similar to any design or design rights of any third party.
21.4 The Mark shall not be liable for any losses arising as a result of misquoted prices or incorrect coding or similar in websites designed by The Mark.
21.5 All design work (including website design) is undertaken by The Mark on the basis set out in clause 8.1 namely that the initial design will be diligently checked by the Buyer and approved prior to being finalised and being fully available to users and The Mark shall not be liable for any errors (including errors introduced by The Mark) not corrected by the Buyer where the Buyer has been provided with the initial design for checking.
22. Intellectual Property
22.1 Where the Buyer has proprietary rights in patent, copyright, designs, brand name, design mark, service mark, trademark and other data pertaining to the Goods (including, but without limitation, the Specifications) provided by The Mark to the Buyer, the Buyer will retain all such rights. The Buyer agrees to indemnify and keep indemnified The Mark from and against all costs, damages and expenses incurred by or recovered against The Mark in respect of any claim for infringement of any intellectual property where The Mark has used such intellectual property on the instructions of the Buyer.
22.2 All Specifications provided by the Buyer to The Mark must be legible and well-edited. The Buyer must maintain its own copies of any original Electronic Files and Print Ready File (if applicable).
23. Privacy
23.1 For the purposes of facilitating the administration of the Mark’s business, the Buyer authorises The Mark to collect all information it may require about the Buyer from all third parties and authorises those third parties to release the information to The Mark.
23.2 All information provided by the Buyer or a third party may be held by the Mark and may be forwarded to third parties for the purpose of collecting debts from the Buyer.
23.3 Information collected may also be used in the creation, delivery and promoting of goods and services from The Mark from time to time.
23.4 The information will be collected, held and used on the condition that: it will be held securely at The Mark’s originating office referred to on the Invoice. And it will be accessible to any of The Mark’s employees and agents who need access to it for the administration of The Mark’s business.
23.5 You have the right to ask for a copy of any personal information we hold about you, and to ask for it to be corrected if you think it is wrong. If you’d like to ask for a copy of your information, or to have it corrected, please contact us at info@themark.co.nz, or on phone numbers 03 366 8077 or 03 313 9350.
24. Assignment
24.1 The Mark may assign any of its rights and obligations under these Terms and Conditions to any person. The Buyer may not assign any of the Buyer’s rights and obligations under these Terms and Conditions to any person without the prior consent of The Mark (which consent may be withheld by The Mark in its sole and absolute discretion).
25. Confidentiality
25.1 The Buyer must not at any time disclose any information relating to The Mark that has been disclosed to the Buyer by The Mark. The Buyer shall take all reasonable steps to prevent any such disclosure to any third party (including, but without limitation, by the Buyers’ employees, officers, contractors and/or agents).
