Terms of Trade
1.1 The following terms and conditions (Terms) apply in respect of any Services provided by Broek Media Limited trading as Flashpoint Design and Marketing (Flashpoint) to you (Customer).
2.1 The following definitions apply to these Terms:
Intellectual Property means all intellectual and industrial property rights and interests (including common law rights and interests) including, without limitation:
(a) trade marks, applications for trademarks, trade name(s);
(b) know-how, being technical and other information or experience or trade secrets;
(c) designs, whether or not registered or protected by copyright;
(d) patents and applications for patents;
(e) copyright material; and
(f) other intellectual property.
Order has the meaning set out in clause 3.2.
Price means the price payable for the Services set out in an Order that has been accepted by Flashpoint pursuant to clause 3.2, as specified in a valid quote that has been accepted by the Customer, or where no valid quote has been accepted by the Customer then calculated in accordance with Flashpoint’s then current standard list price and hourly rates.
Services means any services supplied, or agreed to be supplied by Flashpoint, excluding Third Party Goods and Third Party Services but including without limitation:
(a) graphic design;
(b) print management;
(c) web design;
(e) illustration; and
(f) various other design and print services as requested including facilitating a Customer’s purchase of Third Party Goods and/or Third Party Services.
Service Brief means the detailed Services agreed between Flashpoint and the Customer from time to time.
Service Fee means a fee charged by Flashpoint where Flashpoint is required by the Customer to facilitate the arrangement of Third Party Services.
Services Output means any final output produced in the performance of the Services.
Third Party Goods means any goods supplied by a third party and includes goods produced by a third party printer.
Third Party Services means any services to be performed by a third party other than Flashpoint and includes printing services, domain email accounts and website hosting services.
3. ORDERS AND SUPPLY
3.1 Quote: Flashpoint may issue quotes to the Customer from time to time. The pricing and/or hourly rates set out in a quote shall be valid for the period specified in the quote, or if no period is specified, 30 days from the date of the quote, unless withdrawn by Flashpoint earlier.
3.2 Acceptance: Any request for Services or Service Brief (Order) submitted by the Customer to Flashpoint shall constitute acceptance of these Terms. The Customer acknowledges that Flashpoint’s acceptance of an Order or Service Brief (in whole or in part) is subject at all times to Flashpoint’s sole discretion.
3.3 Order Variation or Cancellation: Once an Order and/or Service Brief is received and accepted by Flashpoint, it cannot be cancelled or varied by the Customer, unless otherwise agreed in writing by Flashpoint.
4. THIRD PARTY GOODS AND SERVICES
4.1 Goods and Services: Flashpoint shall outsource all Third Party Services and Third Party Goods at Flashpoint’s sole discretion. Any Third Party Goods and Third Party Services shall be referred to in the Service Brief and Flashpoint shall charge a Service Fee in relation to the arrangement of Third Party Services.. Where any Third Party Services are to be arranged for the Customer by Flashpoint, the Customer shall be provided with the details and terms and conditions of the Third Party Service provider if applicable. The Customer shall remain liable to the Third Party Service provider in accordance with the Third Party Service Provider’s terms and conditions.
4.2 Delivery: If requested by the Customer, or included in an Order and/or Service Brief, Flashpoint will, at the Customers cost, arrange delivery of Third Party Goods to the Customer’s nominated delivery location in accordance with the Third Party’s terms and conditions. If delivery is not requested by the Customer, all Third Party Goods shall be collected by the Customer or the Customer’s agent from a location nominated by Flashpoint. Any timeframe provided for delivery or collection is an estimate only, and shall not be binding on Flashpoint.
4.3 Third Party Warranty: In relation to any Third Party Services and/or Third Party Goods, Flashpoint will use reasonable endeavours to pass on the benefit of any warranty offered by the Third Party Service to the Customer, if applicable. For the avoidance of doubt, Flashpoint does not to the extent permitted by law, give any warranties in addition to those provided by the Third Party Service provider.
5. PRICE AND PAYMENT
5.1 Deposit: Flashpoint may, in its sole discretion, require the Customer to pay a deposit prior to accepting an Order. The deposit is in part payment of the Price and is non-refundable, unless otherwise agreed by Flashpoint.
5.2 Price: The Customer agrees to purchase the Services for the Price current as at the date of the Order. The Price, less any deposit received by Flashpoint, is payable by the Customer by the 20th of the month following the date of invoice.
5.3 Payment: The Customer agrees that the Price is:
(a) in New Zealand dollars as specified in a quote or subsequent invoice, or as other specified by Flashpoint;
(b) exclusive of GST, and other taxes and duties which may be applicable;
(c) exclusive of and plus any additional costs associated with Flashpoint arranging delivery of Third Party Goods to the Customer; and
(d) Flashpoint may vary its standard price list by providing 14 days’ notice to the Customer.
5.4 Method: Payments shall be made in cleared funds, without deduction or setoff. All payments shall be made by electronic payment to Flashpoint’s nominated bank account, and include the applicable reference number and be in the currency specified in the invoice. Unless otherwise agreed in advance, Flashpoint does not accept payment by cheque or cash.
6. FAILURE TO COMPLY
6.1 Failure to pay: If the Customer fails to pay any amounts owing by the due date, or is otherwise in breach of these Terms, Flashpoint may, in its sole discretion, without prejudice to any other rights and remedies, do any one or more of the following:
(a) suspend provision of the Services, cancel any Order, terminate (in whole or in part) the supply of Services, or terminate these Terms, by providing written notice to the Customer;
(b) charge interest at a rate of 12% per annum, calculated on a daily basis, from the due date for payment until Flashpoint receives payment in full;
(c) enforce any security held; and
(d) take legal action to recover the amounts owing including interest, appoint a collections agent, or other third party to collect the amounts owing.
6.2 Costs: The customer agrees to pay all costs and expenses associated with Flashpoint taking any action in clause 6.2 (including legal costs as between solicitor and client), to Flashpoint in addition to the amount owing.
7. RISK AND OWNERSHIP
7.1 Risk: Risk in the Services Output will transfer to the Customer on delivery.
7.2 Title: Title in the Services Output shall not transfer to the Customer until the Price has been received by Flashpoint in full.
8. PERSONAL PROPERTY SECURITIES ACT 1999
8.1 Grant: To secure payment of the Price and any other amounts due pursuant to these Terms from time to time, and all of the Customers other obligations pursuant to these Terms, the Customer grants to Flashpoint a security interest in the Services Output, and over all of the Customer’s present and after acquired personal property.
8.2 Cooperation and waiver: the Customer agrees to if required by Flashpoint:
(a) co-operate in good faith with Flashpoint to execute the documentation required to register a security interest in favour of Flashpoint on the Personal Property Securities Register and protect Flashpoint ‘s interest in the Services Output; and
(b) waive any right to receive a copy of the verification statement, pursuant to section 148 of the New Zealand Personal Property Securities Act 1999.
9. CONFIDENTIAL INFORMATION
9.1 Confidentiality: All Intellectual Property and other information belonging to the parties (including but not limited to these Terms) which by designation or by its nature is intended to be treated as confidential will be confidential information for the purposes of these Terms (Confidential Information).
9.2 Disclosure: No party will without the prior written consent of the other party disclose any Confidential Information to any third party, except as required pursuant to law or a Court of competent jurisdiction or as necessary to perform the Services or enforce these Terms.
10. INTELLECTUAL PROPERTY
10.1 Ownership: The Customer agrees that Flashpoint and its licensors, retain ownership of all of their Intellectual Property rights existing at the date of these Terms, and all Intellectual Property rights created, produced or discovered in the course of performing the Services.
10.2 License: Upon payment of all amounts payable pursuant to these Terms, including without limitation the Price, in full and subject to the Customer’s compliance with these Terms, Flashpoint grants the Customer a royalty free, non-transferrable, non-exclusive, license to use the Services Output for the Customer’s internal or external purposes, without the right to sublicense.
10.3 Third Party IP: The Customer warrants that it has an unrestricted right to use any material provided to Flashpoint during the term of these Terms, including without limitation, any plans, designs, images and samples, and that the Services do not, and will not, breach any Intellectual Property rights owned by any third party.
10.4 No warranty: Where Flashpoint act on the instruction of the Customer, Flashpoint provide no warranty that the Services or the Services Output will not infringe any third party Intellectual Property rights.
11.1 Service Warranty: Flashpoint warrants that the Services shall be performed in a workmanlike manner, in accordance with industry standard practice.
11.2 Service Warranty Exclusion: In relation to the Services and/or Services Output, Flashpoint does not give any warranty, representation, guarantee or condition of sale, that any specific results, outcomes or performance can be achieved or expected from the use of the Services and/or Services Output.
12.1 Consumer Legislation: If the Customer is a consumer (as defined in the Consumer Guarantees Act), then the Customer acknowledges that in addition to the warranties provided in clause 11 the Consumer Guarantees Act 1993) apply.
12.2 Consumer Rights: Where the Customer is a consumer their rights under clause 12.1 are not affected by clause 13, including Flashpoint’s limitations of liability set out in that clause (Consumer Rights). The Customer may have other rights in addition to the Consumer Rights, however such other rights are, to the extent permitted by applicable law, subject to the limitations of liability set out in clause 13.2 (Other Rights).
13. BUSINESS CUSTOMERS
13.1 Service Warranty: If the Customer is in trade and purchasing the Services for a business purpose (Business Customer), then they agree except as otherwise expressly set out in clause 11, to the extent permitted by applicable law:
(a) that the implied conditions and warranties set out in the Consumer Guarantees Act 1993 are excluded and sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 are excluded; and
(b) except as expressly set out in these Terms, the Service is provided on an ‘as is’ basis, and all implied terms, conditions and warranties are excluded.
13.2 Liability: The following limitations and exclusion of liability apply in respect of Business Users and in respect of any Other Rights the Customer may have:
13.2.1 Flashpoint will not be liable to the Customer whatsoever for any matter that Flashpoint have excluded liability for within these Terms, any indirect loss, consequential loss, loss of profit, loss of bargain, loss of business opportunity or exemplary damages suffered by either party or any other person, loss arising out of or flowing from any pre-contractual misrepresentation, forecast or breach of these Terms, whether contemplated by these Terms or not, and whether actionable in contract, tort (including negligence), equity or otherwise.
13.2.2 If notwithstanding clause 13.2.1, Flashpoint are found liable to the Customer or any third party for any loss or damage, however caused (including through negligence), Flashpoint’s maximum liability to the Customer in aggregate will be limited to the lower of the Price for the Services or $1,000.
13.3 Indemnity: Where the Customer is a Business Customer, the Customer agrees to indemnify and keep Flashpoint indemnified against all loss, damages, costs (including, without limitation, loss of profits) and expenses of any kind, whether direct or indirect, which arise from or in connection with the Customer’s breach of these Terms, whether in tort, contract, equity or otherwise.
14. WARRANTY CLAIM
14.1 Claim: In the event that the Customer suspects a breach of any applicable warranty in respect of the Services and/or Services Output, the Customer shall notify Flashpoint within seven days of delivery of the Services Output.
14.2 Remedy: Where Flashpoint is satisfied (in its sole discretion) that Flashpoint has breached an applicable warranty, Flashpoint may elect to (in its sole discretion and at the Customer’s cost), but subject to applicable law:
(a) make good any defect in the Services Output (where possible);
(b) provide a refund to the Customer for the Services Output;
(c) reperform the Services; or
(d) recomplete the Services Output.
15. DISPUTE RESOLUTION
15.1 The parties will endeavour to resolve any disputes in relation to these Terms and the supply of Goods and/or Services between them cooperatively in the first instance, prior to seeking resolution through the Courts.
16.1 Governing Law: These Terms shall be governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
16.2 Notices: Notices will be sufficiently given if posted or successfully transmitted by email to the intended recipient at their last known address, which in the case of Flashpoint is firstname.lastname@example.org. The Customer will notify Flashpoint in writing of any changes to the Customer’s contact details, if it has a valid credit account.
16.3 Variation: Flashpoint may vary these Terms at any time, by providing notice in writing to the Customer, or posting the varied terms on its Website. The amended Terms will apply to all future orders by the Customer and the Customer’s continued ordering of Goods and/or Services will deem the Customer’s acceptance of the varied terms.
16.4 Assignment: The Customer shall not assign or otherwise transfer or encumber its rights or obligations under these Terms except with the prior written consent of Flashpoint. Flashpoint can at any time assign or otherwise transfer, encumber or subcontract any of its rights and obligations under these Terms to a third party.
16.5 Force majeure: Flashpoint will not be liable for delay or failure in the performance of any of the obligations imposed by these Terms, provided that such failure is beyond their reasonable control.
16.6 Waiver: A party will not have waived or be deemed to have waived any provision of these Terms unless the waiver is in writing and signed by that party.
16.7 Survivorship: Termination of these Terms for any reason will not affect such rights and obligations of the parties as are intended to survive the termination.
16.8 No relationship: These Terms does not create any relationship of partnership, employment, agency or joint venture between the parties.
16.9 Circumvent: The Customer shall not circumvent, or attempt to circumvent, these Terms.
16.10 Severability: Should any part or provision of these Terms be held unenforceable or in conflict with any applicable laws or regulations, the invalid or unenforceable part or provision will be replaced with a provision which accomplishes, to such extent as possible, the original business purpose of the part or provision in a valid and enforceable manner, and the remainder of these Terms will remain binding on the parties.
16.11 Entire Terms: These Terms constitute the sole understanding of the parties and supersedes all prior understandings, written or oral, which will be of no force or effect.
16.12 Counterparts: This Agreement may be executed in counterparts (which may be electronic copies) and all of which, when taken together constitute the one document.