TG Design - Terms and Conditions of Trade
1.1 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “TG Design” means Terri Gasparich T/A TG Design, its successors and assigns or any person acting on behalf of and with the authority of Terri Gasparich T/A TG Design.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting TG Design to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.4 “Services” means all Goods (which includes but is not limited to any files, information, data, printed or virtual material, software, hardware, models) or Services (which includes but is not limited to any design, advice or recommendations, technical service and support and training etc.) supplied by TG Design to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.5 “Web Site” means a location which is accessible on the Internet through the World Wide Web ‘(”the Web”) and which provides multimedia content via a graphical User Interface.
1.6 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.7 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including personal information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using TG Design’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
1.8 “Prohibited Content” means any content on any advertising media that:
(a) is, or could reasonably be considered to be, in breach of the Broadcasting Act 1989; the Fair Trading Act 1986; or any other applicable law or applicable industry code; or
(b) contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
(c) is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights (including, but not limited to, the distribution of music files or any other material in which the Client does not own the copyright).
1.9 “Price” shall mean the cost of the Services (plus any Goods and Services Tax (“GST”) where applicable) as agreed between TG Design and the Client subject to clause 4 of this contract.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Services.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client acknowledges that the supply of Services on credit shall not take effect until the Client has completed a credit application with TG Design and it has been approved with a credit limit established for the account.
2.5 In the event that the supply of Services requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, TG Design reserves the right to refuse delivery.
2.6 None of TG Design’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of TG Design in writing nor is TG Design bound by any such unauthorised statements.
2.7 Once accepted by the Client, TG Design’s quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, TG Design shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
2.8 Any advice, recommendations, information, assistance or service provided by TG Design in relation to Services provided is given in good faith, is based on information provided to TG Design, and TG Design’s own knowledge, and experience. Whilst it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services, human error is possible under these circumstances, and TG Design shall make all effort to offer the best solution to the Client.
2.9 The Client accepts that if a choice of design is presented, only one solution is deemed to be given by TG Design as fulfilling the Contract. All other designs shall remain the property of TG Design, unless otherwise agreed in writing.
2.10 The Client accepts and acknowledges that copyright is retained by TG Design on all design work and other Services provided by TG Design including text, images, ideas, models, visuals and illustrations unless specifically released in writing and after all costs have been settled.
2.11 This Contract constitutes the entire agreement between TG Design and the Client, and the Client hereby acknowledges that no reliance is placed on any representation made by TG Design, but not embodied in this Contract.
2.12 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 226 of the Contract and Commercial Law Act 2017 or any other applicable provisions of that Act or any Regulations referred to in that Act.
2.13 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on TG Design’s Web Site. If there are any inconsistencies between the two documents, then the terms and conditions contained in this document shall prevail.
3. Ongoing Services
3.1 Where this Contract is for ongoing Services, the contract term, unless otherwise specified in writing by TG Design, shall be for a period of one (1) year, as agreed between both parties, and shall revert to an annual roll over month to month basis automatically, thereafter, unless agreed otherwise until terminated by either party by giving at least thirty (30) days’ required notice as defined in the contract term prior to the expiration date of the contract term or any additional term.
3.2 The Client acknowledges and accepts that the Price stated will remain fixed for an initial period of twelve (12) months from the date of the contract term and will then be subject to annual price reviews.
4. Errors and Omissions
4.1 The Client acknowledges and accepts that TG Design shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by TG Design in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by TG Design in respect of the Services.
4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of TG Design; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
5. Change in Control
5.1 The Client shall give TG Design not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address and contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by TG Design as a result of the Client’s failure to comply with this clause.
6. Authorised Representatives
6.1 TThe Client acknowledges that TG Design shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to TG Design, that person shall have the full authority of the Client to order any Services and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to TG Design for all additional costs incurred by TG Design (including TG Design’s profit margin) in providing any Services or variation/s requested thereto by the Client’s duly authorised representative.
7. Price and Payment
7.1 At TG Design’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by TG Design to the Client; or
(b) TG Design’s estimated Price (subject to clause 7.3). The final price can only be ascertained upon completion of the Services. Variances in the estimated Price of more than ten percent (10%) will be subject to Client approval before proceeding with the Services; or
(c) TG Design’s quoted price (subject to clause 7.3(a)) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
7.2 Quotes and/or Estimates:
(a) a copy of the written estimate or quotation is to be signed and dated by the Client to indicate acceptance and should be returned to TG Design. As an alternative, the Client may send an official order for the Services via email in reply to the estimate or quotation which will imply the Client’s acceptance of TG Design’s terms and conditions. The Client accepts that no work will be commenced until acceptance has been provided to TG Design as per this clause;
(b) or Web design projects, the estimate or quotation will include the development costs (if required);
(c) for graphic design projects, the estimate or quotation will only include the design aspect and will not include printing costs unless specifically expressly requested.
7.3 Additional and/or Varied Services:
(a) TG Design agrees that there will be no charge in the preparation of the initial quotation (however any site visits may be chargeable), which may include Client discussions, project scoping, research, testing and business analysis, etc. In the event the Client requires proofs, mock-ups, layouts, samples or dummies or printed, typewritten or other good copy and/or edits, this shall be invoiced at TG Design’s hourly rate unless specified otherwise in the initial quotation, therefore, this variation shall be detailed on the invoice as per sub-clause (d);
(b) all work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client;
(c) where the performance of any contract with the Client requires TG Design to obtain products and/or services from a third party, the Contract between TG Design and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to TG Design, and the Client shall be liable for the cost in full including TG Design’s margin of such products and/or services;
(d) TG Design reserves the right to amend the Price where there is any variation to the accepted plan of scheduled Services, or instructions/specifications, which will be charged for on the basis of TG Design’s standard hourly rates (and double such rate for any Services provided outside TG Design’s normal business hours) and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion;
(e) the Client acknowledges and accepts that all services and email support are chargeable in addition to the Price;
(f) TG Design shall not be held responsible for any amendments made by any third party before or after a design is published; and
(g) any variation due to a result of any increase to TG Design in the cost of materials (including but not limited to overseas transactions that may increase as a consequence of variations in foreign currency rates of exchange and/or international freight and insurance charges) and labour) will be charged for on the basis of TG Design’s quotation and will be shown as variations on the invoice.
7.4 At TG Design’s sole discretion a non-refundable deposit may be required.
7.5 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by TG Design, which may be:
(a) on or before completion of the Services;
(b) by way of instalments/progress payments in accordance with TG Design’s payment schedule;
(c) the date specified on any invoice or other form as being the date for payment; or
(d) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by TG Design.
7.6 Publication and/or release of the work done by TG Design shall only be released once the funds have been cleared or honoured.
7.7 Payment may be made by cash, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Client and TG Design.
7.8 If any part of an invoice is in dispute then the Client shall notify TG Design in writing within three (3) business days once in receipt of the invoice, then the Client may only withhold payment for that part of the invoice that is in dispute and shall pay the balance of the invoice when due.
7.9 TG Design may in its discretion allocate any payment received from the Client towards any invoice that TG Design determines and may do so at the time of receipt or at any time afterwards. On any default by the Client TG Design may re-allocate any payments previously received and allocated. In the absence of any payment allocation by TG Design, payment will be deemed to be allocated in such manner as preserves the maximum value of TG Design’s Purchase Money Security Interest (as defined in the PPSA) in the Services.
7.10 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by TG Design nor to withhold payment of any invoice because part of that invoice is in dispute.
7.11 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to TG Design an amount equal to any GST TG Design must pay for any supply by TG Design under this or any other contract. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
8. Provision of the Services
8.1 Any time specified by TG Design for provision of the Services is an estimate only and TG Design will not be liable for any loss or damage incurred by the Client as a result of provision being late. However, both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties.
9. Web Site Development
9.1 TG Design’s Responsibilities:
(a) upon acceptance of TG Design’s quotation, and in accordance with this Contract, TG Design will:
(i) use its best endeavours to develop the Web Site in accordance with the Client’s instructions and specifications; and
(ii) to the extent specified in the Client’s instructions and specifications, negotiate and procure any third-party agreements on behalf of the Client.
(b) the Client acknowledges that the development of the Web Site by TG Design is based upon current technology platforms (e.g. internet browsers, mobile, android, etc.), and therefore TG Design cannot guarantee that Web Site features and /or content will display correctly, and that the overall visual experience will be the same, for use by either superseded or presently undeveloped technology.
9.2 Client’s Responsibilities:
(a) the Client will, in addition to any other obligations expressed in this contract, have the following responsibilities:
(i) provision of all content (including data, logos, designs and/or graphic and related materials) to be incorporated into the Web Site;
(ii) provision of any other information, ideas or suggestions which are to be expressly considered by TG Design in developing the Web Site.
(b) the Client will ensure that TG Design is given such information and assistance (including access to computer systems and other locations to complete a branding project) as TG Design reasonably requires to enable TG Design to construct and maintain the Web Site;
(c) subject to clause 19.3, the Client shall supply access to any computer system, usernames and passwords required to remove data and/or sites for failure to comply with these terms and conditions;
(d) it shall be the Client’s responsibility to ensure that any specific requirements they may have for mobile web browsers is included in the brief, as, unless otherwise specified therein, the choice of web browsers and technology used in the development of the Web Site shall be at the sole discretion of TG Design. In the event that additional Services are requested, or required (as per clause 9.1(b)), in order to meet any specific requirements for mobile web browsers, after TG Design has commenced work on the Web Site, shall be treated as a variation to the Charges, and a strict estimation of further work required shall be submitted to the Client for approval before proceeding with the variation work.
(e) TG Design will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Web Site which is attributable to:
(i) incorrect information provided by the Client, either pursuant to this clause or otherwise; or
(ii) failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or
(iii) any third-party products and/or services used by TG Design in creation of the Web Site.
9.3 Proof Reading:
(a) whilst every care is taken by TG Design to carry out the instructions of the Client, it is the Client’s responsibility to undertake proof reading and provide feedback (where necessary) via Dropbox, cloud storage and/or any other platform agreed to between the two parties which provides regular, possibly daily contact. TG Design shall be under no liability whatever for any errors not corrected by the Client during the proof reading stages; and:
(i) should the Client’s alterations require additional proofs this shall be invoiced as an extra;
(ii) if, at any stage the Client is unhappy with the direction the Services are taking, the Client can cancel this Contract and pay TG Design for work completed up to that date of cancellation.
(b) when style, type or layout is left to TG Design’s judgement and the Client makes further alterations, this will be invoiced as an extra.
(c) TG Design will make one (1) set of minor changes at no extra cost within fourteen (14) days of the review period. Minor changes include small text changes and small adjustments to placement of items on the artwork. It does not include changes to images, colour schemes, or any navigation features. Any minor changes need to be notified to TG Design via email;
(d) should the Client fail to notify TG Design in writing of any amendments within fourteen (14) days from the commencement of the review period, TG Design shall deem that the original draft as being acceptable.
9.4 Client’s Property and Materials:
(a) graphic files should be supplied in an editable, vector digital format and photographs in a high resolution digital format. If the Client chooses to purchase stock photographs, TG Design can suggest stock libraries;
(b) in the case of property and materials left with TG Design without specific instructions, TG Design shall be free to dispose of them at the end of twelve (12) months after their receiving them and to accept and retain the proceeds, if any, to cover their own costs in holding and handling them;
(c) where materials or equipment are supplied by the Client, TG Design accepts no responsibility for imperfect work caused by defects in or unsuitability of such materials or equipment.
(a) subject to sub-clause (b), TG Design will provide the maintenance services in accordance with the maintenance terms set out in TG Design’s maintenance schedule; and
(b) the Client will procure all necessary authorisations, licences and consents to enable TG Design to have access to the Web Site in order to provide the maintenance services.
10. Domain Registration
10.1 Where TG Design registers a domain name on the Client’s behalf, TG Design cannot guarantee the availability of the domain name, nor assume a successful registration of such a name.
11. Risk and Limitation of Liability for Client Data
11.1 The Client shall provide TG Design with data in the following formats:
(a) for text, files shall be in an electronic format as standard text (.txt) or Work (.doc) on a USB, CD-ROM or via email;
(b) for images, in an electronic format as prescribed by TG Design on a USB, CD-ROM or via email with the images of a suitable quality applicable for the use intended and without any subsequent image processing being required. TG Design shall not be responsible for the quality of images scanned from printed materials;
(c) additional expenses may be charged to the Client for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing or data entry services.
11.2 The Client acknowledges and agrees that TG Design shall not be held responsible or liable for:
(a) anything related to the Web Site or any other Services provided;
(b) any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of TG Design;
(c) any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from illegal hacking or Services provided by TG Design. It is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to TG Design providing the Services. The Client accepts full responsibility for the Client’s software and data and TG Design is not required to advise or remind the Client of appropriate backup procedures (unless included as part of the Services);
(d) any loss or damage to the Client’s software or hardware caused by any ‘updates’ provided for that software.
11.3 TG Design, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by TG Design to the Client.
11.4 The Services are provided on an “as is, as available” basis. TG Design specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.
(a) All media releases and public announcements by either party relating to these terms and conditions, or the Services (including subject matter and related Materials), shall be co-ordinated with the other party and approved jointly by the party prior to release.
(b) TG Design shall not be held responsible for the use of Services as referred to in by media, once information approved by the Client has been submitted to the media; and
(c) when reactive PR is required, the Client agrees that TG Design can act on the Client's behalf, if required, in line with the provision of Services under these terms and conditions, based on information previously supplied by the Client and TG Design’s understanding of the Client's instructions.
11.6 Public Access:
(a) the Client understands that by placing information on the Web Site, such information may be accessible to all internet users. TG Design does not (unless expressly requested by the Client) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity. The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by TG Design, or on the internet generally.
11.7 Defects, Errors and Omissions:
(a) the Client shall inspect/review the Services on provision and shall within three (3) days of such time notify TG Design of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford TG Design an opportunity to inspect/review the Services within a reasonable time following such notification if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage; and
(b) for defective Services, which TG Design has agreed in writing that the Client is entitled to reject, TG Design’s liability is limited to either (at TG Design’s discretion) replacing the Services or rectifying the Services, provided that the Client has complied with the provisions of sub-clause (a).
12.1 The print management service offered by TG Design is dependent on using the printer as recommended by TG Design. The Client may choose to source its own third party print company, but TG Design accepts no liability whatsoever for the print work in this instance.
12.2 Wherever possible, TG Design prefers that when using third party suppliers; the Client follows TG Design’s recommendations.
12.3 Printing includes all processes involved in re-producing an image from electronic file onto any media.
12.4 Payment for large volume print work (deemed to be a financial risk to the supplier) may be requested before that print work is commenced. This will be determined on a case by case basis.
13.1 Where printed proofs are required, these will be digitally printed.
13.2 Where final printing is to use pantone (PMS) colours, the printed proof is not to be used as a colour comparison. PMS colours are only to be compared with the relevant PMS swatch books.
13.3 Where printing in four (4) colour process, the final result may vary from the digitally printed proof due to the difference in the two print processes. The digitally printed proof should only be relied upon to show that all elements of the design are included in the final pdf and that all content is correct.
14.1 TG Design and the Client agree that the Client’s obligations to TG Design for the supply of Services shall not cease (and ownership of any Goods shall not pass) until:
(a) the Client has paid TG Design all amounts owing to TG Design for the Services; and
(b) the Client has met all of its other obligations to TG Design.
14.2 Receipt by TG Design of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then TG Design’s ownership or rights in respect of the Services, and this Contract, shall continue.
14.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 14.1:
(a) the Client is only a bailee of the Goods and must return the Goods to TG Design on request;
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for TG Design and must pay to TG Design the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for TG Design and must pay or deliver the proceeds to TG Design on demand;
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of TG Design and must sell, dispose of or return the resulting product to TG Design as it so directs;
(e) the Client irrevocably authorises TG Design to enter any premises where TG Design believes the Goods are kept and recover possession of the Goods;
(f) TG Design may recover possession of any Goods in transit whether or not Delivery has occurred;
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of TG Design;
(h) TG Design may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
15. Personal Property Securities Act 1999 (“PPSA”)
15.1 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Goods and/or collateral (account) – being a monetary obligation of the Client to TG Design for Services – that have previously been supplied and that will be supplied in the future by TG Design to the Client.
15.2 The Client undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which TG Design may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, TG Design for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of TG Design; and
(d) immediately advise TG Design of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
15.3 TG Design and the Client agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
15.4 The Client waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, and 131 of the PPSA.
15.5 Unless otherwise agreed to in writing by TG Design, the Client waives its right to receive a verification statement in accordance with section 148 of the PPSA.
15.6 The Client shall unconditionally ratify any actions taken by TG Design under clauses 15.1 to 15.5.
15.7 Subject to any express provisions to the contrary (including those contained in this clause 15), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
16. Security and Charge
16.1 In consideration of TG Design agreeing to provide the Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
16.2 The Client indemnifies TG Design from and against all TG Design’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising TG Design’s rights under this clause.
16.3 The Client irrevocably appoints TG Design and each director of TG Design as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Client’s behalf.
17. Intellectual Property and Confidentiality
17.1 Where TG Design has designed, drawn or developed Services (including the Web Site) for the Client, TG Design retains full intellectual property ownership of the Services, including the copyright in any designs and drawings and documents, and TG Design hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use the Services solely in relation to the operation of the Client’s own business, conditional upon the Client fulfilling their obligations under this contract (including, but not limited to, the full payment of the Price).
17.2 Subject to the Copyright Act 1994 and the conditions therein, where TG Design (or their agent) has provided the Client with a licence for use on any design, copy, writing, drawing, image, illustration, idea or code created for the Client, the licence shall be for use by the Client on a one-time only basis and may not be modified, re-used, or re-distributed in any way or form without the express permission of TG Design and any of its relevant subcontractors.
17.3 All design work where there is a risk that another party makes a claim, should be registered by the Client with the appropriate authorities prior to publishing or first use or searches and legal advice sought as to its use. TG Design shall not be held responsible for any or all damages resulting from such claims.
17.4 The Client hereby authorises TG Design to utilise images of the Services created by TG Design in advertising, marketing, or competition material by TG Design including, but not limited to:
(a) the Client permitting TG Design to place a small credit on printed material, exhibition displays, advertisement and/or link to TG Design’s own web site on the Client’s Web Site, which shall usually be in the form of a small logo or line of text placed towards the bottom of the page;
(b) allowing TG Design to place web sites and other designs, along with a link to the Client’s Web Site on TG Design’s own web site for demonstration purposes and to use any designs in TG Design’s own publicity.
17.5 The Client shall indemnify TG Design against any claims by third parties for patent, trademark, design or copyright infringement, directly or indirectly arising out of the design, workmanship, material, construction, or use of the Services or any other deficiency therein. Where the Client has supplied drawings, sketches, files or logo’s to TG Design, the Client warrants that the drawings, sketches, files or logo’s do not breach any patent, trademark, design or copyright, and the Client agrees to indemnify TG Design against any action taken by a third party against TG Design.
17.6 Notwithstanding anything herein, the Intellectual Property Rights in TG Design’s Services do not vest in the Client and there is no assignment of these Intellectual Property Rights to the Client. TG Design hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use and reproduce the Services for the purposes of this contract only, and solely for the operation of the Client’s business however, the Client shall not use nor make copies of such Intellectual Property in connection with any work or business other than the work or business specified in writing to TG Design unless express approval is given in advance by TG Design. Such license shall terminate on default of payment or any other terms of this contract by the Client.
17.7 All Flash, PHP, Java Script, HTML and Dynamic HTML coding and other supplied code (if any) remains the intellectual property of TG Design. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright.
17.8 Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party's written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
18. Consumer Guarantees Act 1993
18.1 If the Client is acquiring Goods for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Goods by TG Design to the Client.
19. Default and Consequences of Default
19.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at TG Design’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
19.2 If the Client owes TG Design any money the Client shall indemnify TG Design from and against all costs and disbursements incurred by TG Design in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, TG Design’s collection agency costs, and bank dishonour fees).
19.3 Further to any other rights or remedies TG Design may have under this Contract, if a Client has made payment to TG Design, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by TG Design under this clause 19 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
19.4 Without prejudice to any other remedies TG Design may have, if at any time the Client is in breach of any obligation (including those relating to payment, whether or not the payment is due to TG Design) TG Design may suspend or terminate the provision of Services to the Client, (this includes but is not restricted to, withholding domain codes, passwords and Goods, and/or blocking or restricting public and Client access to the Web Site, or removing the Web Site from the web completely) and any of its other obligations under the terms and conditions. TG Design will not be liable to the Client for any loss or damage the Client suffers because TG Design has exercised its rights under this clause.
19.5 Without prejudice to TG Design’s other remedies at law TG Design shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to TG Design shall, whether or not due for payment, become immediately payable if:
(a) any money payable to TG Design becomes overdue, or in TG Design’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by TG Design;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
20. Cancellation and Termination
20.1 Without prejudice to any other remedies TG Design may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions TG Design may suspend or terminate the supply of Services to the Client. TG Design will not be liable to the Client for any loss or damage the Client suffers because TG Design has exercised its rights under this clause.
20.2 TG Design may cancel these terms and conditions or cancel provision of the Services at any time before the Services are provided by giving written notice. TG Design shall not be liable for any loss or damage whatever arising from such cancellation.
20.3 At TG Design’s sole discretion, the Client may cancel provision of the Services. In the event that the Client cancels provision of the Services the Client shall be liable for any costs incurred by TG Design (including, but not limited to, loss of profit) up to the time of cancellation.
20.4 Where the Client cancels an order:
(a) the initial notification may be by telephone or email but must be confirmed in writing within fourteen (14) days;
(b) the Client shall be invoiced for all work completed over and above the non-refundable deposit as per clause 7.4;
(c) where failure clause 20.4(a) occurs, the Client shall be required to pay the full quoted cost of the Services.
20.5 Should the Client, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this Contract will be terminated by TG Design (at their sole discretion) and all Services completed, but not billed or paid, will be payable in full within fourteen (14) days from the date of the submitted invoice.
20.6 If the Client fails to comply with any of the provisions of this Contract and does not rectify such non-compliance within seven (7) days of TG Design giving notice either in writing, via fax or email, then TG Design may without prejudice to any other rights or remedies, and without being liable to the Client for any loss or damage that may result, give notice to the Client terminating their right to use the Web Site, Software and Services. Upon termination of the contract, the Client shall lose all right to use the Web Site and products, and shall forthwith deliver the Goods to TG Design and destroy all copies made. The Client shall certify in writing that the copies have been destroyed.
20.7 In the event the Services are terminated as per clauses 20.4 or 20.6, the Services can be re-instated under a new contract at the prevailing rates; however no credits or discounts will be granted, and reinstatement costs shall apply.
20.8 Either Party may terminate the contract term for Services or any one or more schedules immediately by written notice being not less than thirty (30) days of their intent to terminate at any time after the initial contract period (as specified in TG Design’s quotation or Service Agreement) is ended.
20.9 Where the Client wishes to terminate the contract term during the term stipulated, the Client must pay to TG Design the remaining contract term fees which would otherwise have been payable to TG Design during the contract term unless otherwise agreed.
21.1 All emails, documents, images or other recorded information held or used by TG Design is Personal Information as defined and referred to in clause 21.3 and therefore considered confidential. TG Design acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1993 (“the Act”) including Part II of the OECD Guidelines and as set out in Schedule 5A of the Act and any statutory requirements where relevant in a European Economic Area “EEA” under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). TG Design acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by TG Design that may result in serious harm to the Client, TG Design will notify the Client in accordance with the Act and/or the GDPR. Any release of such personal information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
21.2 Notwithstanding clause 21.1, privacy limitations will extend to TG Design in respect of Cookies where the Client utilises TG Design’s website to make enquiries. TG Design agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to TG Design when TG Design sends an email to the Client, so TG Design may collect and review that information (“collectively Personal Information”)
21.3 The Client authorises TG Design or TG Design’s agent to:
(a) access, collect, retain and use any information about the Client;
(i) (including, name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history or any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Client’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Client.
(b) disclose information about the Client, whether collected by TG Design from the Client directly or obtained by TG Design from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Client.
21.4 Where the Client is an individual the authorities under clause 21.3 are authorities or consents for the purposes of the Privacy Act 1993.
21.5 The Client shall have the right to request (by e-mail) from TG Design, a copy of the Personal Information about the Client retained by TG Design and the right to request that TG Design correct any incorrect Personal Information.
21.6 TG Design will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
21.7 The Client can make a privacy complaint by contacting TG Design via e-mail. TG Design will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within twenty (20) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at http://www.privacy.org.nz/comply/comptop.html.
22. Dispute Resolution
22.1 TG Design and the Client will negotiate in good faith and use their reasonable efforts to settle any dispute that may arise out of, or relate to, this Contract, or any breach thereof. If any such dispute cannot be settled amicably through ordinary negotiations, the dispute shall be referred to the representatives nominated by each party who will meet in good faith in order to attempt to resolve the dispute. Nothing shall restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy or protect and proprietary or trade secret right.
23. Service of Notices
23.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
23.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
24.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not TG Design may have notice of the Trust, the Client covenants with TG Design as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not without consent in writing of TG Design (TG Design will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
25.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
25.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the courts of Henderson, New Zealand.
25.3 TG Design shall be under no liability whatsoever to the Client for any expenses, claims, costs (including but not limited to legal fees and commissions), damages suffered or incurred by TG Design, or indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by TG Design of these terms and conditions, caused by any failure by the Client to comply with their obligations under this Contract, or that arise from any claim relating to the Services by any person that the Client authorises to use the Services, or where due to server downtime or programming errors (alternatively TG Design’s liability shall be limited to damages which under no circumstances shall exceed the Price).
25.4 TG Design may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
25.5 The Client cannot licence or assign without the written approval of TG Design.
25.6 TG may subcontract all or any part of its rights and/or obligations under this Contract with the written consent of the Client, which shall not be unreasonably withheld. Where TG elects to subcontract out any part of the Services, it shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and accepts that it has no authority to give any instruction to any of TG’s subcontractors without the authority of TG.
25.7 The Client agrees that TG Design may amend these terms and conditions at any time. If TG Design makes a change to these terms and conditions, then that change will take effect from the date on which TG Design notifies the Client of such change via email. The Client will be taken to have accepted such changes if the Client makes a further request for TG Design to provide Services to the Client.
25.8 Neither party shall be liable for any default due to fires, explosions, severe weather, industrial disputes, insurrection, requirements or regulations, or any civil or military authority, acts of war (whether declared or not), civil unrest, acts of God, earthquake, flood, riot, embargo, government act, strike, lock-out, storm, terrorism, or failure or outage of any telecommunications links or other connections forming part of the Internet which are beyond the reasonable control of either party.
25.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.