1. What is the purpose of this agreement?
1.1 This agreement sets out the terms that apply to the relationship between you, your agent(s) and/or principal(s) (“you” and “your”) and The Imaginarium our agent(s) (“we”, “us” and “our”).
2. What information about you can we collect?
2.1 You agree to provide us with and allow us to use all information necessary to give effect to this agreement and the provision of our products and performance of our services.
2.2 Unless your consent is withdrawn in writing, you agree to the disclosure of information:
- to give effect to the provision of our products and performance of our services;
- to enforce our obligations under this agreement or any additional agreement;
- when authorised by you or required by law;
- to assess credit worthiness;
- and to market any of our products and services.
2.3 We will comply with the Privacy Act 1993. We will not use your information unless we have reasonably ensured it is accurate, complete, relevant and not misleading. If we give your information to another entity we will do everything reasonably within our power to prevent unauthorised use or disclosure of your information. You may access your information and ask us to correct any mistakes.
3. What are our products and services?
3.1 “Product(s)” and “service(s)” means and includes without limitation:
Graphic Design, The arrangement or brokering of printed materials by third parties
4. What is the price?
4.1 The price is the cost of the products and services as agreed between you and us from time to time which may be subject to GST and out of pocket expenses (e.g. postage, shipping, courier). If no price is stated, the price will be the standard amount at which that we provide the products and services at the time of your request. The price is subject to reasonable change due to variations to the products and services to be provided or circumstances beyond our control.
4.2 Additional Costs. The pricing includes the design fee only. Any and all outside costs including, but not limited to, photography/artwork licenses, font licenses, prototype and/or final production costs, printers proofs, printing plates, equipment rental and any required software purchase, will be charged to you in addition unless specified or otherwise provided for in the Proposal.
5. What happens when we give you a quote?
5.1 All quotes will be valid for thirty (30) days and exclusive of GST, unless stated otherwise.
5.2 You will be responsible for increased costs resulting from any subsequent changes to a quote due to any inadequate or inaccurate information, request/requirement for additional products and services or variations.
5.3 We may withdraw a quote at any time prior to your written acceptance.
5.4 We may alter the quote due to circumstances beyond our control or clerical or computer error.
6. When and how do you pay us?
6.1 You agree to pay us in full and without set-off, deduction, counterclaim or retention:
- Seven (7) days from the date of our invoice, unless otherwise required or agreed by us in writing;
- interest on any amount you owe after the due date at 2.5% per month/part month;
- expenses incurred as a result of enforcing any of our rights contained in this agreement including PPSR registration, debt collection and legal fees;
- a deposit may be required; and
- pre-payment in full may be required for materials such as but not limited to those stated in 4.2.
6.2 You agree to us allocating or reallocating any payment received from you towards any invoice. If no allocation is made then it is deemed to be in such a way that preserves the maximum value of our purchase money security interest in the products.
6.3 You will be responsible for payment if a third party that you expect to pay you or us fails to pay.
6.4 Third parties retain the right to source payment directly from you under their Terms and Conditions if you do not want to pay due to any error or omission that has been mis-proofed by you, where such errors or variations were contained in the proof approved by you, either via e-mail, signed proof or verbally agreed upon.
7. Work in progress and cancelled orders
7.1 If we begin work on a job and subsequently the Client cancels the order, we reserve the right to invoice for the work carried out and any expenses incurred. If the Client does not progress a job for more than 90 days (e.g. does not respond to a visual design proposal or proof), we reserve the right to invoice for the work carried out and any expenses incurred.
8.1 General Changes: Unless otherwise stated in the Proposal, you shall pay additional charges for changes requested by you which are outside the scope of the Services on a time and materials basis, at The Imaginarium’s standard hourly rate. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. We may extend or modify any delivery schedule or deadlines in the Proposal as may be required as a result of such Changes.
8.2 Substantive Changes. If the Client requests or instructs Changes that amount to a revision in or near excess of thirty (30) percent of the time required to produce the Deliverables, and or the value or scope of the Services, The Imaginarium shall be entitled to submit a new and separate Proposal to the Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by us. We will prioritise performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. The Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to The Imaginarium. We shall be entitled to request written clarification of any concern, objection or correction. You acknowledge and agree that our ability to meet any and all schedules is entirely dependent upon your prompt performance of your obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in your performance or Changes in the Services or Deliverables requested by you may delay delivery of the Deliverables. Any such delay caused by you shall not constitute a breach of any term, condition or our obligations under this Agreement.
8.3 Testing and Acceptance. The Imaginarium will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to the Client. The Client, within twenty four (24) hours of receipt of each Deliverable, unless otherwise requested by us in writing, shall notify us, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments the Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and we will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from the Client, the Deliverable shall be deemed accepted.
9.1 It is the Client’s responsibility to check all proofs for errors in copy and content (e.g typographic errors or misspellings, incorrect artwork or logos). Even if text is supplied electronically (i.e. on disk or via e-mail) it is still the customer’s responsibility to check all text on the proof for errors that may have occurred subsequently. If any text on the proof is not clear (e.g. through poor fax reproduction) it is the Client’s responsibility to obtain a clear copy from us.
9.2 The Imaginarium is not liable for any or associated print or consequent error or omission costs once the Final Proof has been signed off by the Client where it has been deemed “Good to go” to print, publication or supply of final file format/s, either via e-mail, signed Proof or verbally agreed upon. The Client shall incur the cost of correcting such errors.
10. Third party sub-contractors
10.1 The Imaginarium cannot guarantee delivery dates from sub-contractors (printers, reprographic houses, web developers, exhibition production houses etc.). All goods and services from such third parties are subject to their own terms and conditions, a copy of which can be supplied on request.
11. Printed products
11.1 Checking printed products. It is the Client’s responsibility to check that the quality and quantity of printed materials delivered is acceptable and as agreed. The Imaginarium must be informed of any discrepancy by 5pm of the next working day following delivery.
11.2 Compliance. The printed work, and the arrangement or brokering of the print services by The Imaginarium, shall be deemed in compliance with this Agreement if the final printed product is within the acceptable variations as to kind, quantity, and price in accordance with current or standard trade practices identified by the supplier of the print and print-related services. Whenever commercially reasonable and if available, we shall provide copies of the current or standard trade practices identified by the supplier of the print and print-related services.
11.3 Printed Colour Vs On Screen Colour. The representation of colour on your screen is not always accurate to what will print. Production prints and colour proofs will not exactly match digital proofs supplied due to moving from one medium (lights on a computer screen) to another (ink on paper). It is the Client’s responsibility to request or obtain a printed colour proof to check they are satisfied with the colours to be used before approving the Final Artwork if colour is of concern.
11.4 Colour Proofs. There is no guarantee that production prints will exactly match colour proofs because of variations in proof preparation methods and substrates. The supplier will however use its best endeavours to provide a commercially acceptable finished product.
11.5 Samples. The Client shall provide us with two (2) samples of each printed or published forms of the Final Deliverables, for use in our portfolio and other self-promotional uses. Such samples shall be representative of the highest quality of the work produced.
11.6 Delay. If the Client causes a serious delay, a delay penalty or a restart fee may be charged by the printer and in some cases close to print deadlines, the project may be pulled or both. This is at the discretion of the printer and The Imaginarium and is payable by the Client. The Imaginarium holds no responsibility for deadlines being missed as a result.
12.1 It is the Client’s responsibility to ensure that copyright is not infringed through the use of any materials they supply to us.
12.2 Images purchased or commissioned by The Imaginarium for the Client are subject to the terms and conditions of the supplier, a copy of which can be supplied on request.
12.3 The Imaginarium retains copyright on design work we produce as part of a tender, unless otherwise agreed.
12.4 Copyright on completed design work produced by The Imaginarium transfers to the Client once payment of our invoice has been made in full, subject to the conditions above. However, we reserve the right to use material we have designed or produced in our own publicity (e.g. our portfolio, website), whether in hard copy or electronic form and for this material to bear accreditation of The Imaginarium if requested.
13. Archiving work and supplying files
13.1 Whilst The Imaginarium endeavours to archive all work electronically, we cannot guarantee that all data files are retrievable for future use. We cannot accept responsibility for lost or corrupted files.
13.2 Copies of data files can be supplied to the Client on request, copyright permitting. Some items (e.g. fonts) cannot be supplied due to copyright restrictions.
13.3 When older files are re-used or supplied to a Client, the time taken to retrieve them and convert them to current data formats may be charged.
13.4 The Imaginarium does not attempt to restrict its Clients to an exclusive relationship. When a Client wishes to work with another supplier of design, print or digital services, we will make all reasonable efforts to help by supplying files and information, but we may charge for the time taken at the hourly rate.
13.5 We cannot accept responsibility for loss or corruption of files supplied to us by the Client. It is the Client’s responsibility to retain a copy of any supplied material.
14. What warranties and limitations apply?
14.1 Manufacturers’ and third party warranties (where applicable).
14.2 If you are in trade and/or are a business, you agree that the parties contract out of the Fair Trading Act 1986 and Consumer Guarantees Act 1993 and Sale of Goods Act 1908 to the extent permissible by law.
14.3 We are not liable for loss of data or system failure, attack, sabotage, hacking or corruption caused by factors outside our reasonable control.
14.4 We are not liable for delay or failure to perform our obligations if the cause is beyond our reasonable control such as supplier delays or Force Majeure Event (e.g fire, earthquake, flood, or other severe weather, labor dispute, death, illness or incapacity of The Imaginarium, any national or international law or any other event beyond our control.
14.5 Subject to applicable insurance and 14.1-14.4, if we are deemed liable for loss or damage of any kind, however arising including from provision of products and services to you, including consequential loss, whether suffered or incurred by you or another person or entity and whether in contract tort or otherwise, our total liability is limited to the value of products and services provided to you.
15. What if you wish to make a claim in relation to our products and services?
15.1 Claims in relation to our products and services are subject to the following:
- for claims relating to faulty/defective products and services you notifying us within the applicable warranty period, and for all other claims you notifying us within seventy-two (72) hours of pick up/delivery;
- the products having been used in accordance with the manufacturer’s/our instructions and not having been subject to abuse, neglect, misuse, accident or work by a unauthorised third party; and
- us repairing or replacing defective products or performing further services at our discretion.
- damage for delivery by courier – you must check the consignment is for you and the correct number of boxes is received in the presence of the courier driver – otherwise we cannot claim or credit your account for loss or damage. You must notify us within twenty-four (24) hours of delivery – we will ask the courier to collect the same as soon as possible, pending which you must hold the products and packaging; or
- damage for delivery by carrier – the order must be checked while the driver is present – signing “subject to inspection” does not comply with the Carriage of Goods Act 1979 and will not allow a claim. Damage/breakage must be stated on the consignment note, countersigned by the driver and notified to us immediately in writing. If the driver cannot take the product, you must hold the product pending collection. For larger pieces you must check for knocks and scratches before signing the consignment note and the carrier leaves. Carriers do not accept claims after seven (7) days.
15.2 Any products the subject of a claim under 15.1 cannot be destroyed or removed from the premises until we have inspected the same or waived our right to do so in writing.
16. When will the products and services be provided?
16.1 We will use our best endeavours to deliver the products and services at the time agreed between you and us; however, the time of delivery is not an essential term of this agreement and if you fail to accept delivery then the products will be deemed to be delivered at the agreed time. We may partially deliver products listed in one order and if we fail to deliver an instalment that failure will not give rise to a right of cancellation.
16.2 Delivery is complete when we give the products to you, give the products to a third party carrier, or leave the products at the delivery site or your premises.
16.3 We are responsible and assume risk for the products until delivery in accordance with 16.2, pick up by you or the passing of ownership under 11.1, whichever comes first.
17. For what are you responsible?
17.1 You are responsible for and warrant that you have ensured that:
- you have and will continue to provide us with all information and assistance relevant to providing our products and services and that information, plans and drawings on which we base our products and/or services are accurate and complete. We are not liable for variations and additions to our products and services where such is the result of inaccuracy or incompleteness and you will be responsible for the cost of additional products and services required to remedy any issues;
- all data is protected, secure and backed up. We are under no liability in respect of the loss of or damage to any data.
17.2 If you do not meet your obligations under 17.1 adequately, any and all loss, damage and/or costs will be your sole responsibility.
18. What ownership and security rights do we have?
18.1 We retain ownership of and hold a security interest in all products until you have paid us in full for all products and services provided to you. While we retain ownership, you will store all products in such a way that our interests are protected and they can be identified as provided by us.
18.2 You agree that we hold security interest in all of your present and after acquired property connected with products and services provided to you to the total amount of products and services provided to you, and:
- authorise us to register a financing statement and charge on the Personal Property Securities Register, and provide all information and signatures necessary to effect the same;
- will not register a financing charge or statement or charge demand in respect of products without our prior written consent;
- waive your entitlement under s 148 of the Personal Property Securities Act 1999 (PPSA) to receive a copy of a verification statement where we have registered our interest;
- that both parties contract out of s 114(1)(a), 133 and 134 of the PPSA;
- waive your rights as listed under s 107(2) of the PPSA; and
- give us seven (7) days prior written notice of any proposed change in your name or details such as contact information.
18.3 Where applicable, we own all existing and new intellectual property rights connected to the products and services. You fully indemnify us for any intellectual property infringements we may make when acting in accordance with your instructions and may use the products only if paid in full and for the purpose for which they were intended and supplied by us.
19. What if you want to vary the products and services to be provided?
19.1 All requests and orders are subject to these terms and conditions and no products or services may be varied unless both parties agree to the variation in writing. If we have reasonably relied on your original instructions then you may be responsible for payment of the original price of the products and services.
20. When can a party cancel this agreement?
20.1 Subject to 20.2-20.6, either party may cancel this agreement at any time by giving twenty-one (21) days prior written notice.
20.2 We have the right by seven (7) days prior written notice to suspend or cancel wholly or in part this or any agreement for the provision of products and services if you default by:
- failing to pay or indicating you will not pay any sum owing by the due date;
- any of your creditors seizing or indicating they will seize any products provided to you;
- products in your possession becoming materially damaged while any amount remains unpaid;
- being bankrupted, insolvent, under statutory management or put into liquidation;
- a receiver being appointed over or a landlord possessing any of your assets;
- a court judgment entered against you remaining unsatisfied for seven (7) days;
- breaching the terms of this agreement; and
- an adverse material change in your financial position.
20.3 Notwithstanding 20.2, if you have not paid for our services by the due date, we may immediately suspend or cancel our services.
20.4 If you default we may exercise a lien against any products in our possession.
20.5 You agree that if you default and the default is not remedied within seven (7) days, we may enter any premises occupied by you to inspect or retrieve any products. You will provide reasonable access to such premises and do all things necessary to give effect to our obligations. We may re-sell any products and credit the net sale proceeds to your account for the invoice value less adjustment for the condition of the products.
20.6 Cancellation under 20.1 or cancellation or suspension under 20.2 or 20.3 will not affect either party’s claim for any amount due at the time of cancellation or suspension, damages for any breach of obligations under this agreement and any other legal rights either party may have. Upon cancellation of this agreement any amount owed by you for products and services provided up to and including the date of cancellation will become immediately payable and current orders and services will terminate.
21. Does a personal guarantee apply?
21.1 If you are a director of a company or the trustee of a trust:
- in exchange for us agreeing to supply products and services to the company or the trust, you also sign this agreement in your personal capacity, and jointly and severally personally undertake as principal debtors, to pay everything that the company or trust owes us, and to indemnify us against non-payment and/or default; and
- any personal liability of you as director or trustee will not exclude the company or trust from the liabilities and obligations contained in this agreement.
- 21.2 A guarantee provided under 21.1 will continue to apply notwithstanding changes to these terms of trade in accordance with 22.10 and/or prior dealings.
22. What else is agreed?
22.1 We may outsource (contract out) part of the work required to perform our services, you agree to pay for all amounts due in connection with the same.
22.2 A failure by either party to enforce any of the terms of this agreement will not be deemed to be a waiver of any of the rights or obligations under this agreement.
22.3 Neither party may assign or transfer their rights or obligations under this agreement to any other party without our prior written consent.
22.4 If any of these terms are determined to be invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining terms will not be affected.
22.5 This agreement supersedes all prior agreements, representations and warranties. Any instructions we receive from you and all arrangements between the parties are subject to these terms.
22.6 If a dispute arises between the parties either party must notify the other in writing within seven (7) days of the dispute arising. The parties will endeavour to resolve the dispute by negotiation within seven (7) days of receiving notice. If the parties cannot resolve the dispute then each party will have the right to refer the dispute for mediation or arbitration at any time. The arbitration will be undertaken in accordance with the Arbitration Act 1996. The presence of a dispute will not affect either party’s claim for any amount due, damages for any breach of obligations under this agreement and any other legal rights either party may have.
22.7 Documentation related to this agreement may be served on you by email.
22.8 During the term of this agreement and after termination, you agree not to directly or indirectly engage, employ or otherwise solicit for employment or contract any person who, during the period of, or for a twelve (12) month period following the completion of the agreement, is or was an employee or contractor of us or our contractors.
22.9 Independent Contractor. The Imaginarium is an independent contractor, not an employee of the Client or any company affiliated with the Client. We shall provide the Services under your general direction, but we shall determine, in our sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorised to act as agent or bind the other party except as expressly stated in this Agreement. All rights, if any, granted to you are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
22.10 We will notify you of any changes to these terms and publish the same on our website – continued provision of products and services will be subject to your signed or written acceptance of the same. All other variations must be mutually agreed in writing.
22.11 This agreement is governed by the laws of New Zealand.