Terms of Trade
APPLICATION OF THESE TERMS
- Unless otherwise agreed in writing, these Terms of Trade (Terms) will apply to, are incorporated into and govern every contract entered into between Samantha Jane Design Limited (Samantha Jane Design) and the Client for the performance of services by Samantha Jane Design for the Client (Contract), every instruction received by Samantha Jane Design from the Client (Brief) and all services and materials provided by Samantha Jane Design to the Client (Work). Samantha Jane Design can revise these Terms at any time by providing a copy of the revised Terms to the Client or referring the Client to the revised Terms as displayed on its website at http://www.samanthajane.co.nz/terms-of-trade, and the revised Terms will apply to every new Contract, Brief or Work commencing after the date of such revision. If any expressly agreed, written provision of a Contract or Brief conflicts with these Terms, then such express provision prevails to the extent of that inconsistency.
- In relation to each Brief, Samantha Jane Design will, where reasonably requested, prepare a document (Quote) for the Client’s approval prior to commencement of Work (Work Proposal/Cost Estimate). Each Work Proposal/Cost Estimate will summarise all components of the relevant project (which may include, without limitation, strategy, creative development, design implementation, expenses and project management) and will detail Samantha Jane Design’s estimated fees and expenses with respect to such components.
- Each Work Proposal/Cost Estimate (Quote) prepared by Samantha Jane Design will remain valid for 30 days from the date of issue, and must be approved in writing by the Client before Samantha Jane Design will commence Work on the relevant project. By approving a Work Proposal/Cost Estimate (Quote), the Client agrees to these Terms and to any other terms and conditions set out in such Work Proposal/Cost Estimate (Quote).
- Samantha Jane Design reserves the right to charge the Client at Samantha Jane Design’s usual hourly rates (as advised by Samantha Jane Design from time to time) for scoping Work completed in connection with preparation of a Work Proposal/Cost Estimate (Quote) or otherwise prior to commencement of Work on a project. Where a project does not proceed, and Samantha Jane Design does not charge for scoping Work, the Client will not own and may not use any documentation, material or concepts prepared or developed by Samantha Jane Design as part of the scoping process and the Client must immediately return any and all such items to Samantha Jane Design.
- Every effort will be made to estimate disbursements and expenses accurately, however, due to the changing nature of client requirements, disbursements and expenses actually charged to the Client may vary from those detailed in the relevant Work Proposal/Cost Estimate (Quote). Samantha Jane Design is entitled to charge for actual disbursements and expenses incurred in connection with each project, regardless of any estimates or forecasts that may have been supplied by Samantha Jane Design.
ADDITIONAL FEES/ EXPENSES
- Samantha Jane Design reserves the right to charge, at Samantha Jane Design’s usual hourly rates (as advised by Samantha Jane Design from time to time), for additional Work undertaken in relation to a project and not outlined in the original Brief and/or not included in any relevant Work Proposal/Cost Estimate (Quote), as a result of changes by the Client to project specifications, strategy or any process of artwork, new design considerations, together with further meetings attended and expenses incurred in connection with such additional Work. Unless reasonably requested, a revised Work Proposal/Cost Estimate (Quote) will not be submitted during a project.
- Samantha Jane Design may require a retainer before commencing Work on any project. Samantha Jane Design will hold any retainer until the conclusion of the relevant project. Until then, the Client must pay every Samantha Jane Design invoice on its due date until the completion of that project. If the Client fails to do so, Samantha Jane Design may deduct the amount outstanding from the retainer and require further funds to be deposited. The retainer (or any balance) will be applied against the final account and any other amounts owing by the Client to Samantha Jane Design, with any surplus being refunded to the Client.
INVOICING AND PAYMENT
- Invoicing will take place at the end of each month or Project period. All fees for Work and expenses will be charged to the Client on the basis agreed with the Client and otherwise in accordance with these Terms. The Client will pay all charges invoiced, together with GST chargeable on the relevant Work and without any deduction, deferment or set off, on or before the 20th day of the month following the date of the invoice. For new clients, or projects with estimated fees of greater than $5,000, Samantha Jane Design reserves the right to invoice and receive payment of 30% of estimated fees prior to commencement of Work in respect of such new project or stage (as the case may be). Remaining fees will be invoiced on a work-in-progress basis until completion.
- Accounts not paid in full by their due date will incur interest at the rate of 2% each day on the outstanding balance, from the due date until the date of payment. All costs, including legal expenses, incurred in recovery of debts owed to Samantha Jane Design are to be paid by the Client. Samantha Jane Design reserves the right to discontinue any Work in hand for the Client in the event of non-payment of any accounts by their due date and to retrieve any Work, materials or other information produced by Samantha Jane Design and supplied to the Client up to that time, none of which may be used by the Client in such circumstances.
- If a project is terminated before completion, the Client will compensate Samantha Jane Design for all fees and expenses incurred by Samantha Jane Design up to the date of termination.
CLIENT APPROVAL / PROOFING
- Samantha Jane Design may request the Client to conduct a final proofing and checking of any material (whether written, graphic or otherwise) produced by Samantha Jane Design in the course of performing Work for the Client from time to time, and confirm to Samantha Jane Design whether the Client finally approves such material or, alternatively, requires Samantha Jane Design to carry out further Work on such material. In such case the Client shall complete such proofing and checking, and provide such confirmation to Samantha Jane Design, in an efficient and timely manner and where the Client fails to do so within seven days of Samantha Jane Design’s request the Client shall be deemed to have finally approved the relevant material. The Client assumes sole and entire responsibility for, and indemnifies and saves harmless Samantha Jane Design from, any and all losses, expenses or damages which the Client may suffer as a result of any spelling, grammatical, typographical, graphical, colour or other errors or issues whatsoever which are present in any such material following the Client’s final approval of such material.
- The Client agrees that it will not utilise in any way, any material (whether written, graphic or otherwise) produced by Samantha Jane Design in the course of performing Work for the Client from time to time, until such material has been proofed and signed off in accordance with clause 11. If the Client does utilise any such material before it has been proofed and signed off by the Client, or makes any amendment to any such material following its proofing and sign off, the Client agrees and acknowledges that Samantha Jane Design will not be responsible, nor liable to the Client or any third party, for any loss, damage, expenses or any other liability arising directly or indirectly from the use of any such material, and the Client fully indemnifies Samantha Jane Design against any such loss, damage, expenses or any other liability.
COPYRIGHT AND INTELLECTUAL PROPERTY
- Subject to clauses 14 and 15, all intellectual property conceived, discovered, developed, made, perfected, improved, modified or altered by Samantha Jane Design in the course of scoping, pitching or performing Work for the Client (other than trade marks owned by the Client), whether alone or in conjunction with the Client or any other parties or capable of being patented or registered or not, shall be the absolute property of Samantha Jane Design, may be exploited or used by Samantha Jane Design in any manner in Samantha Jane Design’s absolute discretion, and shall not be used by the Client except pursuant to these Terms or as otherwise agreed in writing by Samantha Jane Design.
- Upon (but not before) the Client making payment in full of an invoice presented by Samantha Jane Design, together with any other amounts owing to Samantha Jane Design by the Client at any time prior to the date of payment of such invoice, the intellectual property in any printed or digital material to which that invoice relates shall become the Client’s absolute property, provided that Samantha Jane Design reserves the right to use any material, concepts or intellectual property created for the Client, and which is in the public domain, for Samantha Jane Design’s own marketing purposes, and provided further that all intellectual property in and relating to concepts developed by Samantha Jane Design in the course of scoping, pitching or performing Work for the Client, but not selected or accepted by the Client or not forming part of the final digital or printed material provided to the Client, remains the sole and absolute property of Samantha Jane Design, may be used by Samantha Jane Design for any purpose whatsoever, and may not be held or used by the Client under any circumstances.
- If the Client supplies any intellectual property to Samantha Jane Design, whether in connection with the performance of services by Samantha Jane Design or otherwise, the Client warrants that it owns or is entitled to use such intellectual property and that Samantha Jane Design will not be in breach of any third party’s intellectual property rights by utilising such intellectual property in connection with the performance of services for the Client or for any other purpose authorised by the Client, and the Client indemnifies Samantha Jane Design against any direct or indirect costs, losses (including consequential losses and loss of profits), damages, claims or liabilities that Samantha Jane Design may suffer or incur as a result of its use or possession of such intellectual property.
EXCLUSION OF LIABILITY
- Samantha Jane Design shall not be liable to the Client or any third parties for any loss, damage, expenses or any other liability arising directly or indirectly from the performance of Work for the Client by Samantha Jane Design pursuant to these Terms or as otherwise agreed, or from the Client’s use of any material or intellectual property prepared by Samantha Jane Design in connection with such Work. To the fullest extent permitted by law, Samantha Jane Design excludes all warranties or conditions implied by statute, at law, by trade, custom or otherwise.
- Samantha Jane Design shall not be liable to the Client or any third parties for any loss, damage, expenses or any other liability arising directly or indirectly from any difficulty utilising or accessing any material provided to the Client by Samantha Jane Design in any way arising out of computer error, software compatibility issues or any other computer related issue.
- If Samantha Jane Design agrees with the Client to hand over to the Client any source files for any material (whether written, graphic or otherwise) produced by Samantha Jane Design in the course of performing Work for the Client from time to time, then Samantha Jane Design shall not be liable to the Client or any third parties for any loss, damage, expenses or any other liability arising directly or indirectly from the Client’s use and/or modification of those source files after those source files have been handed to the Client and the Client shall fully indemnify Samantha Jane Design against any such loss, damage, expenses or any other liability.
- All Work undertaken for the Client is to be treated in strict confidence, and Samantha Jane Design and the Client will use their best endeavours to prevent the unauthorised use, copying, publication or disclosure of the content or nature of such Work, or the arrangement between Samantha Jane Design and the Client, until the information becomes public knowledge or the product of such Work is implemented.
RELATIONSHIP OF PARTIES
- Samantha Jane Design and the Client expressly agree that neither these Terms, nor any Brief, Work Proposal/Cost Estimate (Quote) or Contract, shall be construed to create any employment, partnership, joint venture, agency or other relationship, nor shall any such relationships be implied into these Terms, any Contract or Brief. Samantha Jane Design and the Client acknowledge and agree that they are independent contractors and that each party be solely responsible for any and all expenses incurred by it in relation to these Terms, any Contract or Brief.