The Client engages Waxeye Limited to provide specified Works, and Waxeye Limited accepts that engagement, on the following terms and conditions.
PERFORMANCE & DELIVERY
Waxeye shall provide the service in accordance with the reasonable standard of skill, care and diligence generally exercised by the creative industry in New Zealand subject to any financial, physical, time or other constraints imposed by the Client or reasonably resulting from the nature of the engagement.
Act in good faith and demonstrate honesty, integrity, openness and accountability in their dealings with each other;
Waxeye shall, where practicable, advise the Client of any matter, circumstance or instruction that may affect the timely delivery or quality of the Work and/or constitute a variation to the Work and thereby require an adjustment to a Fee estimate (if any).
Waxeye shall not make any material change to Works approved in writing by the Client except where circumstances or project issues require Waxeye to exercise urgent discretion, and the Client is promptly notified.
Any periods of time for delivery of the Work by Waxeye or the Client are indicative estimates only, and any delay shall not entitle the Client to terminate the Agreement or claim remedies.
The Client agrees to:
Provide Waxeye with a full brief of the Project Details, requirements and objectives, together with full information about the purpose, implementation and any other information reasonably requested by Waxeye;
Provide Waxeye with all components/material (including logos, graphics, text and other materials/data/hardware) as reasonably required for the job and/or as set out in the Project Details; and
Work constructively and in good faith with Waxeye in order to resolve any aspects of the Work, to enable the Service to be provided.
Make decisions and give approvals reasonably required by the Supplier to enable the delivery of the Services. All decisions and approvals must be given within reasonable timeframes.
CONDITIONS OF LICENCE / SALE
The Client shall receive full copies of the completed Works once full payment of the Fee has been received, and the Client’s rights to the Works as provided for in the Agreement commences at the date of full payment of the Fee (except where Waxeye otherwise gives express written permission).
Unless specified the Project Details, Waxeye is not obliged to provide additional copies of the finished product in any form. The need to do so may incur additional costs.
Unless specifically recorded in writing as a deliverable under this Agreement, any aspect of “preliminary work”, including plans, sketches, treatment documents, incomplete or draft works, technical files, construction tools/materials/moulds, any non-final products, files, code and technical frameworks remain the property of Waxeye and are not licensed or transferred to the Client.
The Client shall seek Waxeye’s prior written consent to use Waxeye’s designs, applications, creations or products for any purpose outside the scope of this Agreement. Waxeye shall not unreasonably withhold consent, but may impose reasonable conditions governing the additional use of the designs, applications, creations or products, including (without limitation) the payment of a reasonable usage fee.
If the Client fails to make any payment when due, Waxeye may suspend or revoke any licence, or refuse to transfer ownership (whichever is applicable).
Any licence under this Agreement must not be assigned to any third party without Waxeye’s prior written permission. The licence will terminate automatically on the bankruptcy, receivership or liquidation of the Client.
NOTICE OF DEFECTS
If, during the term of this Agreement or 40 days after completion of it, the Client becomes aware of any problem with the Works or provided service, or non-compliance with this Agreement, the Client must notify Waxeye in writing. Failure to do so will be considered a waiver by the Client of any claim it may have against Waxeye [in contract, tort (including negligence), equity or otherwise] in relation to the Provided Service.
CORE INTELLECTUAL PROPERTY TERMS
This Agreement incorporates these core intellectual property terms, and any additional intellectual property terms selected by the parties in Schedule 1 to this Agreement. Where no additional intellectual property terms in Schedule 1 are selected, this Agreement confers a licence on the terms as set out in paragraph (module) “B” of Schedule 1.
This Agreement also incorporates, and the Parties agree to implement, attribution arrangements (if selected) as described in Schedule 2.
All Intellectual Property Rights in the design, code or created works and anything created incidentally, (with the exception of any pre-existing Intellectual Property Rights in materials supplied by the Client) are the property of Waxeye.
Despite any other provision of this Agreement, any rights transferred to the Client will exclude the essential work practices, tools and processes developed by the creator, which are reserved as the property of Waxeye.
Waxeye retains the right to reasonably use the Work for the purposes of Waxeye’s portfolio and in other media, websites, galleries, exhibits, competitions, for recognition of creative excellence and/or marketing.
The Client acknowledges that the Works’ constituent materials, for example licensed works incorporated in the project, (such as patented or copyrighted designs, prototypes, models, samples, specifications, documentation, commercial typefaces, photographs, vector art, video, audio, code and/or software owned by or created by third parties) may only be licensed/transferred to a limited extent, depending on the licence under which they are utilised in the Works.
The Client warrants that:
It owns or is lawfully authorised to use any pre-existing Intellectual Property Rights in materials supplied by the Client to Waxeye; and
Waxeye is fully entitled to use those materials without restriction, for the purposes of this Agreement. Waxeye is also permitted, but not obliged, to make incidental usage and copies of those materials, including for plans, sketches, working drafts, mock-ups, prototypes, samples, backups, archiving, and storage.
Where the Works are licensed to the Client, except as expressly provided in writing in this Agreement, the Client will ensure that the Works are not altered in any way, at any time, without prior written consent from Waxeye. Changes to specifications and removal of metadata is expressly prohibited.
Waxeye shall execute all documents and take all steps reasonably required by the Client for the purpose of protecting Intellectual Property relating to this Work, including all necessary applications and other forms (e.g. patent registration). Waxeye’s related fees and costs (including legal advice on registration requests, and liability insurance costs) will be met by the Client.
INFORMATION USE (PRIVACY AND CONFIDENTIALITY)
Waxeye shall abide by the Privacy Act 1993 and shall take all practical steps to attain privacy protection.
The Parties will take all reasonable steps to keep each others data secure and private. The Parties agree not to use confidential information relating to the Project for any other purpose.
Prior to release, Waxeye will keep as confidential the details of the Project and the Works where instructed to do so by the Client.
FEES AND PAYMENT
The Client shall pay Waxeye’sFees within 20 days of invoice.
Waxeye may invoice the Client for Fees monthly, or at the completion of the Design Phase or delivery of the Work, or as the work progresses and in the manner stipulated under Project Details in this agreement (if any).
Where this Agreement has been entered into by an agent (or person purporting to be an agent) on behalf of the Client, the agent and Client shall be jointly and severally liable for the payment of all Fees due to Waxeye under this Agreement.
Where the Fee is calculated on a fee-estimate basis, the Fee is subject to reasonable upward adjustment in the event that:
After this Agreement is signed, the Client changes the scope of the project required; or
After completion and approval of any project phase, the Client instructs Waxeye to alter the work supplied; or
Through no fault of Waxeye, the provision of outputs will take longer or require more work than reasonably contemplated, or materials required unexpectedly cost significantly more than anticipated, through no fault of Waxeye.
In the event that the supply price for goods or services required for the project increases after quotation but before supply, Waxeye reserves the right to adjust the price payable by the Client.
Waxeye shall endeavour to provide advance notice of variations to Fee estimates, but failure to do so will not prejudice or affect Waxeye’s rights under this clause.
Waxeye shall notify the Client if specific tasks, designs or developments need to be delayed or accelerated due to changes in instructions from the Client, or circumstances beyond Waxeye’s control, and Waxeye shall be entitled to an additional Fee to cover the costs of disruption and additional time spent.
Where Waxeye takes over the Project or Work by a former service provider, Waxeye may charge an additional Fee to cover the time spent to correct or accommodate the deficiencies in the previous services provided.
The Client shall pay for all disbursements and expenses actually and properly incurred by Waxeye in the course of producing the project.
Where the Fee is calculated on an hourly-rate basis, Waxeye shall keep records of time spent and shall make these records available for inspection by the Client upon request.
The Client may not deduct, withhold or offset any sum from the amounts owed to Waxeye under this Agreement.
The Client may not reduce or withhold payment to Waxeye because a third party involved in the Project has not carried out their obligations to the Client.
Unless otherwise stated quotes and invoices are exclusive of GST and remain valid for a period of no more than 14 days from the date of the quote.
Where royalties are provided for in the Project Details:
The Client shall pay royalties to Waxeye at the rate specified in the Project Details.
Within 30 days after the end of each calendar month, the Client shall provide to Waxeye a statement setting out:
the royalties due; and
the number of units manufactured; and
the number of units sold in respect of the relevant calendar month and shall arrange for the deposit of the royalties into the nominated bank account of Waxeye specified in the Project Details, unless a differing payment arrangement is otherwise agreed in writing between the parties.
Upon receipt of the royalties, Waxeye shall immediately provide a receipt for the royalties suitable for the purposes of GST or otherwise so as to enable the Client to recover or off-set such taxes as may be entitled by law.
The Client shall keep full and accurate records from which the accuracy of the statement provided to Waxeye in accordance with subclause (m)(ii) above may be verified.
The Client shall permit Waxeye by its authorised agent or officer at all reasonable times and upon reasonable notice to inspect and take copies of extracts from any books, accounts, receipts or other records of any kind in the possession of or under the control of the Client relating to the manufacture and sale of products using or incorporating the project.
Any money not paid in full in accordance with clause 7 may be charged with interest at a rate of 2% per month or part month overdue, and Waxeye is, in addition, entitled to recover all debt collection costs and related legal expenses (on a solicitor-client basis).
In the event any money due, and not paid in full, Waxeye reserves the right to immediately suspend further work for the Client. If work is suspended, Waxeye shall not be obliged to resume services until the amount owing, and any costs incurred in relation to the suspension, are paid in full and Waxeye has adequate security for future Fees. Waxeye will not be liable to the Client or any person for losses arising from suspension of the Work. Nothing in this clause prejudices or otherwise affects Waxeye’s rights under clause 12.
Any monies paid may be allocated by Waxeye toward any amount owed by the Client.
Either party may raise a dispute by notice in writing to the other party. The parties agree to use their best efforts to resolve any dispute which may arise under this Agreement through good faith without-prejudice negotiations.
If the parties’ nominated contact persons are unable to resolve the dispute within 7 Working Days following delivery of the dispute notice referred to in (a), the dispute shall be escalated to the Chief Executive Officer (or equivalent) of each party who shall conduct informal, off-the-record and without-prejudice discussions in good faith, seeking to resolve the dispute.
If after 5 Working Days the persons described in (b) have not reached an agreed outcome, they shall cease discussions for 2 Working Days before resuming discussions.
If, after a further discussion period of 2 Working Days, the parties remain unable to reach an agreed outcome, the dispute shall be referred to arbitration in accordance with the Arbitration Act 1996 (the “Act”). The decision of the arbitrator is final and binding on the parties.
Either party may refer a dispute to arbitration by giving written notice to the other party recording the details of the dispute and that party’s desire to have the matter referred to arbitration.
The arbitration shall be heard and determined by one arbitrator, to be agreed upon by the Parties or, failing agreement within 5 Working Days of the notice given pursuant to clause 9 (e), to be nominated by the President for the time being of the New Zealand Law Society. The Arbitrator must have expertise in commercial law and the relevant creative or technology industry.
The arbitrator shall adopt, wherever possible, a simplified and expedited procedure, and shall endeavour to complete the arbitration as quickly as possible and, in every case, within 4 months of the notice given pursuant to clause 9 (e);
The arbitrator may appoint experts under Article 26 of the First Schedule of the Act or may rely on the arbitrator’s own expertise;
The arbitrator may adopt inquisitorial processes;
The arbitration shall take place in the city / town of the registered office of Waxeye Ltd in New Zealand;
The arbitrator shall decide the dispute in accordance with the laws of New Zealand and the arbitration shall otherwise be conducted in accordance with the Act.
The Client undertakes to indemnify Waxeye against any and all loss, damage, liability or expense (including costs on a solicitor-client basis):
Suffered or incurred as a result of any breach by the Client of the Agreement or in recovering any money due; or
Arising out of a claim by a third party against Waxeye alleging that the work (excluding original material developed solely by Waxeye) infringes any third-party Intellectual Property Rights; or
Arising where the project design, code, or function has been altered, changed or modified in any way not approved by Waxeye and such loss, damage, liability or expense shall be money due under the Agreement.
Except as expressly permitted in the signed Agreement, and subject to automatic backup mechanisms, the Client shall not copy or reproduce the Works by any means or in any form without Waxeye’s written consent.
The Client’s right to use the Work does not include the right to remove, alter or otherwise affect general rights information, including (without limitation) any notices or metadata accompanying or part of the work which records creator details, copyright ownership or publication status of the work.
The Client shall not alter or remove any notices attached to the Work, and shall take all reasonable steps to respect and preserve Waxeye’s copyright and other rights. Any notice which automatically appears on loading a video, website, design or application shall not be made ineffective or non-displayable.
Where Waxeye has placed restrictions on access to or use of the Works, the Client shall make no attempts to defeat such restrictions.
Termination on Notice: The Client may terminate this Agreement at any time by giving 4 weeks written notice and paying all costs incurred for work completed to date. Upon receipt of such notice from the Client, Waxeye must take all reasonable steps to bring the services to a close.
Termination for Cause: Without prejudice to any other right or remedy it may have, whether under this Agreement, under statute or otherwise, either Party may immediately terminate this Agreement by written notice to the other Party if:
The other Party is in breach of any term of this Agreement and such breach is not remedied within 10 Working Days of notifying the other Party;
The other Party commits an act of bankruptcy or makes any assignment or composition with its creditors;
Liquidation or bankruptcy proceedings are commenced for the other Party; or
The other Party has a receiver or manager or statutory manager appointed.
Consequences of Termination:
Upon postponement or termination of this Agreement, Waxeye shall be entitled to the payment of all Fees up to the effective date of postponement or termination (including fees, disbursements and costs incidental to the orderly termination of the Agreement).
If the Client terminates this Agreement, other than through breach by Waxeye, the Client shall indemnify Waxeye against any loss, costs (including costs on a solicitor-client basis), expenses, demands, or liability, suffered or incurred in relation to the Project.
Early termination of this Agreement will not prejudice or affect the accrued rights or liabilities of each party to the other.
Suspension: Where work is suspended on the Client’s instructions for 30 days or more then the Client must, at the time of suspension, pay Waxeye for all work completed on the project to date.
Waxeye shall not be liable for any loss or damage arising directly or indirectly due to an act of God, fire, armed conflict, labour disputes, civil commotion, intervention of a government, accidents, interruption to transportation or telecommunications, weather or any other cause outside Waxeye’s control.
The Consumer Guarantees Act 1993, or equivalent legislation, may apply to the work provided by Waxeye if the Client acquires the work for personal, domestic or household use or consumption. If this Act applies, nothing in this Agreement will limit or exclude the Client’s rights under that Act.
If the Client is acquiring the work for business purposes, then the Client’s rights are subject to this Agreement only and the Consumer Guarantees Act 1993 shall not apply.
The Client grants to Waxeye a security interest in the Work and all ancillary Goods supplied and their proceeds to secure payment of Fees and charges for ancillary Goods, and to secure payment of all Fees and other amounts due from the Client to Waxeye from time to time.
Nothing in sections 114 (1) (a), 133 and 134 of the Personal Property Securities Act 1999 shall apply to this Agreement. The Client waives its rights pursuant to sections 121, 125, 129, 131 and 132 of that Act and its rights to receive any verification statement relating to the security interests in the Work and any ancillary Goods.
WAXEYE NOT LIABLE FOR LOSSES
Waxeye shall not be liable for:
any loss or damage arising by reason of any delay in the completion or delivery of the work; or
any loss of profits; or
any indirect or consequential loss of whatever nature; or
any loss resulting from any errors or omissions arising from incorrect information provided by the Client, or failure by the Client to provide information, or an oversight or misinterpretation of a Client’s verbal instructions.
Aside from as specifically provided in writing by the Project Details, Waxeye accepts no responsibility and will not be liable under any circumstances for archiving, storage or backups of the Works or constituent/preliminary materials.
LIABILITY OF WAXEYE LIMITED
Subject to Clause 16, Waxeye’s liability to the Client for any and all costs, loss or damage suffered by the Client, however caused (including negligence), arising out of or connected with the performance or failure of performance of any work supplied by Waxeye shall not exceed the full value of the payments made by the Client under this Agreement.
THIRD PARTY PROVIDERS, CONTRACTORS AND EMPLOYEES
Waxeye may engage contractors, employees and/or third party suppliers in order to complete the Work.
Where Waxeye engages contractors at the Client’s request, Waxeye shall be acting as the agent of the Client, and is not liable for the performance or remuneration of those contractors.
Where third party goods and/or services are used for the work, Waxeye makes no representation as to, and takes no responsibility for, the quality or fitness for purpose of those goods and/or services (regardless of whether the third party services are brokered or arranged by Waxeye). No responsibility is taken by Waxeye for third party services (e.g. printers/chain of manufacture/web hosting etc.).
There shall be a non-solicitation period of 6 months following the delivery of the Work during which the Client will not solicit or engage contractors or employees of Waxeye.
Where the Client has engaged Waxeye to take over the work services provided to the Client by a third party:
The Client shall enable Waxeye to confer with the previous service provider and review the previous services provided, and Waxeye will notify the Client if it is necessary to remedy deficiencies in the previous services.
The Client acknowledges that Waxeye is not responsible for any services and work carried out prior to the commencement of this Agreement, or carried out by other parties (at any time).
The Project Details including signed statement of work and brief documents, together with these Terms & Conditions, constitutes the entire agreement (“Agreement”) between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, on the subject matter.
WAIVER OR VARIATION
No right or obligation under this Agreement shall be deemed to be waived except by notice in writing signed by each party.
The provisions of this Agreement shall not be varied, except by an agreement in writing signed by the parties.
SURVIVAL OF AGREEMENT
The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.
If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force and effect apart from such provision.
ACCESS TO EQUIPMENT
The Client will ensure that Waxeye, and the employees, contractors and other representatives of Waxeye have full and safe access to the Client’s equipment, materials and information at all reasonable times for purposes associated with the supply of the Work.
The Client will provide on request a suitably qualified or informed representative, agent or employee, who shall be available to Waxeye to advise on access, use of the Client’s resources and any other matter within the Client’s knowledge or control which may assist Waxeye in complying with Waxeye’s obligations under this Agreement.
Waxeye holds professional indemnity insurance for an amount no less than that stipulated in the Project Details (if any), subject to the various terms, exclusions and limitations of that policy, and Waxeye shall maintain this insurance (or equivalent) for a period of six years following the conclusion of the Work.
HEALTH AND SAFETY
If Waxeye is present on the Client’s or other third party’s premises for the purpose of the Work:
The Client shall promptly notify Waxeye of any health and safety policies in place on those premises; and
Waxeye shall at all times comply with all reasonable health and safety requirements and safety-related instructions provided by the Client.
Waxeye has not and will not during or after the term of this Agreement assume any obligation, as the Client’s agent or otherwise, which may be imposed on the Client pursuant to the Health and Safety at Work Act 2015, and the parties agree that Waxeye will not be deemed to be a PCBU or an officer of the Work undertaking under that Act.
This Agreement shall not be assigned or transferred without the prior written consent of Waxeye.
This Agreement shall be construed in accordance with and governed by the laws of New Zealand and the Parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Agreement.
Currency amounts are in New Zealand dollars unless otherwise stated, and all communications between the parties must be in English.
Nothing in this Agreement shall be construed as evidence of a partnership between the parties or their successors or assigns, and no provision of this Agreement shall empower a party to act on behalf of the other in any way, or to incur any liability on behalf of the other.
If there is a conflict between the Project Details and any provisions of these Terms and Conditions, the Project Details shall take precedence.
Notices under the Agreement can be delivered in person, or by email to the addresses notified in the Project Details (which may be updated from time to time by each party).
DEFINITIONS OF CAPITALISED WORDS
In this Agreement, the following definitions apply:
“Agreement” The Project Details including signed statement of work and brief documents, together with these Terms & Conditions, constitutes the entire agreement (“Agreement”) between the parties;
“Client” means the client listed in the Project Details;
“Design Phase” means any of the Design Phases described in the Project Details (if any);
“Fee” means the total fee payable by the Client in consideration for the Design Works services and associated rights as detailed in this Agreement;
“Goods” includes both tangibles and intangibles;
“Intellectual Property Rights” means any patents, copyright, designs, and any other right granted by the operation of law which confers protection on any written or artistic work created by intellectual effort and all associated intangible assets created as a by product;
“Project” means the project described in the Project Details;
“Project Details” means the variable terms and conditions, brief or statement of work recorded at the outset of the Agreement.
“Service” means the undertaking of the work being provided by Waxeye.
“Working Days” means days other than Saturday, Sunday, public holidays, or days from 23 December – 6 January (inclusive)
“Waxeye” means the Company (Waxeye Limited) listed in the Project Details;
“Work” or “Works” means the (singular and/or plural) design, creative or technological services and tasks to be performed, and deliverables to be provided, by Waxeye as detailed in the Project Details.