GENERAL TERMS OF TRADE
APPLICATION OF THESE TERMS
- Unless otherwise agreed in writing, these Terms of Trade (Terms) will apply to, are incorporated into and govern every contract entered into between Brandhub NZ Limited (Brandhub) and you for the performance of services by Brandhub for you (Contract), every instruction received by Brandhub from you (Brief) and all services and materials provided by Brandhub to you (Work). Brandhub can revise these Terms at any time by providing a copy of the revised Terms to you or referring you to the revised Terms as displayed on its website at brandhub.co.nz and the revised Terms will apply to every new Contract, Brief or Work commencing after the date of such revision. If any expressly agreed, written provision of a Contract or Brief conflicts with these Terms, then such express provision prevails to the extent of that inconsistency.
- In relation to each Brief, Brandhub will, where reasonably requested, prepare a document for your approval prior to commencement of work, which will summarise all components of the relevant project (which may include, without limitation, strategy, creative development, design implementation, expenses and project management) and will detail Brandhub’s estimated or quoted (as the case may be) fees and expenses with respect to such components (Work Proposal).
- Each Work Proposal prepared by Brandhub will remain valid for 30 days from the date of issue, and must be approved in writing by you before Brandhub will commence work on the relevant project. By approving a Work Proposal, you agree to these Terms and to any other terms and conditions set out in such Work Proposal.
- Brandhub reserves the right to charge you at Brandhub’s usual hourly rates (as advised by Brandhub from time to time) for scoping work completed in connection with preparation of a Work Proposal or otherwise prior to commencement of work on a project. Brandhub will endeavour (but is not obliged to) inform you before commencing scoping work for which it intends to render such charges.
- Where a project does not proceed, and Brandhub does not charge for scoping work, you will not own and may not use any documentation, material or concepts prepared or developed by Brandhub as part of the scoping process and you must immediately return any and all such items to Brandhub.
- Every effort will be made to estimate disbursements and expenses accurately, however, due to the changing nature of your requirements, disbursements and expenses actually charged to you may vary from those detailed in the relevant Work Proposal. Brandhub is entitled to charge for actual disbursements and expenses incurred in connection with each project, regardless of any estimates or forecasts that may have been supplied by Brandhub.
ADDITIONAL FEES/ EXPENSES
- With respect to any project, Brandhub reserves the right to charge for any additional work undertaken, and any additional or increased expenses incurred, beyond the work and expenses outlined in the original Brief and/or included in any relevant Work Proposal relating to that project, as a result of:
7.1 changes requested by you, or that become necessary due to your acts or omissions, to scope, specifications, materials, quantity, quality, timing, process, or strategy; or
7.2 increases in input cost to Brandhub, whether due to your acts or omissions or any other circumstance beyond Brandhub’s reasonable control;
(Variations), it being accepted and agreed that:
7.3 such additional work shall include without limitation attendance at additional meetings, participation in discussions, correspondence, advice, design, artworking, drawings, samples, and materials;
7.4 Brandhub’s charges for such additional work and expenses will be determined based on Brandhub’s usual rates for time, labour, materials, and other services as at the time of such Variation; and
7.5 Brandhub may at its discretion (and on giving you written notice) withhold performance of any work which Brandhub reasonably believes to be a Variation, until it has received your written confirmation that such work will be treated as a Variation, and that any proposed fees or expenses Brandhub have submitted for such work are accepted and agreed.
- Brandhub may require a retainer before commencing work on any project. Brandhub will hold any retainer until the conclusion of the relevant project. Until then, you must pay every Brandhub invoice on its due date until the completion of that project. If you fail to do so, Brandhub may deduct the amount outstanding from the retainer and require further funds to be deposited. The retainer (or any balance) will be applied against the final account and any other amounts owing by you to Brandhub, with any surplus being refunded to you.
INVOICING AND PAYMENT
- Invoicing will take place at the end of each month, and/or on completion of the Work contemplated in a Work Proposal, and/or on completion of an overall project, and/or at such other times as Brandhub may determine. All fees for work and expenses will be charged to you on the basis expressly agreed with you and otherwise in accordance with these Terms. You will pay all charges invoiced, together with GST chargeable on the relevant work and without any deduction, deferment or set off, on or before the 20th day of the month following the date of the invoice. Brandhub reserves the right to invoice and receive payment of part or all of its estimated or quoted fees prior to commencement of the work to which such fees relate, in respect of any new project or stage within an existing project (as the case may be). Remaining fees will be invoiced on a work-in-progress basis until completion of that project or stage.
- Brandhub reserves the right to charge interest, on the outstanding balance of any account not paid in full by its due date, at a rate 10% per annum above Brandhub’s bank’s base rate for commercial lending, from the due date until the date of payment. All costs, including legal expenses, incurred in recovery of debts owed to Brandhub are to be paid by you. Brandhub reserves the right to discontinue any work in hand for you in the event of non-payment of any accounts by their due date and to retrieve any Work, materials or other information produced by Brandhub and supplied to you up to that time, none of which may be used by you in such circumstances.
- If you dispute any item or items referred to in a monthly invoice rendered in accordance with clause 9, you shall, within 5 Business Days of receipt of such invoice, notify Brandhub of the reasons for such dispute. Payment of any invoice shall not be delayed on account of such dispute. Brandhub shall not be required to refund any portion of a disputed invoice until the parties’ dispute has been resolved, and then only to the extent where so determined as part of that resolution.
- If a project is terminated before completion, you will compensate Brandhub for all fees and expenses incurred by Brandhub up to the date of termination.
CLIENT APPROVAL/ PROOFING
- Brandhub may request you to conduct a final proofing and checking of any material (whether written, graphic, or otherwise) produced by Brandhub in the course of performing work for you from time to time, and confirm to Brandhub whether you finally approve such material or, alternatively, requires Brandhub to carry out further work on such material. In such case you shall complete such proofing and checking, and provide such confirmation to Brandhub, in an efficient and timely manner and where you fail to do so within 14 days of Brandhub’s request you shall be deemed to have finally approved the relevant material. You assume sole and entire responsibility for, and indemnify and save harmless Brandhub from, any and all losses, expenses or damages which you may suffer as a result of any spelling, grammatical, typographical, graphical, colour or other errors or issues whatsoever which are present in any such material following your final approval of such material.
- You agree that you will not utilise in any way, any material (whether written, graphic, or otherwise) produced by Brandhub in the course of performing work for you from time to time, until such material has been proofed and signed off in accordance with clause 12. If you do utilise any such material before it has been proofed and signed off by you, or make any amendment to any such material following such proofing and sign off, you agree and acknowledge that Brandhub will not be responsible, nor liable to you or any third party, for any loss, damage, expenses or any other liability arising directly or indirectly from the use of any such material, and you fully indemnify Brandhub against any such loss, damage, expenses or any other liability.
COPYRIGHT AND INTELLECTUAL PROPERTY
- Subject to clause 16, all intellectual property conceived, discovered, developed, made, perfected, improved, modified or altered by Brandhub in the course of scoping, pitching or performing work for you (other than trademarks owned by you), whether alone or in conjunction with you or any other parties or capable of being patented or registered or not, shall be the absolute property of Brandhub, may be exploited or used by Brandhub in any manner in Brandhub’s absolute discretion, and shall not be used by you except pursuant to these Terms or as otherwise agreed in writing by Brandhub.
- Upon (but not before) you making payment in full of an invoice presented by Brandhub, together with any other amounts owing to Brandhub by you at any time prior to the date of payment of such invoice, the intellectual property in any printed or digital material to which that invoice relates shall, subject to clauses 17 and 18, become your absolute property.
- With regard to any intellectual property which is transferred to you pursuant to clause 16:
17.1 Brandhub shall not be liable to you or any third parties for any loss, damage, expenses, or any other liability arising directly or indirectly from the ownership or use by you of any such intellectual property; and
17.2 Brandhub shall not be responsible in any way for the implementation and/or registrations of any protections of such intellectual property; and
17.3 to the extent permitted by law, Brandhub excludes all warranties or conditions implied by statute, at law, by trade, custom or otherwise; and
17.4 Brandhub reserves the right, and you expressly acknowledge and agree to such reservation, for Brandhub to use any material, designs, and concepts containing such intellectual property, and which are in the public domain, for Brandhub’s own marketing purposes.
- All intellectual property in and relating to concepts developed by Brandhub in the course of scoping, pitching, or performing work for you, but not selected or accepted by you or not forming part of any final digital or printed material provided to you, remains the sole and absolute property of Brandhub, may be used by Brandhub for any purpose whatsoever, and may not be held or used by you under any circumstances.
- If you supply any intellectual property to Brandhub, whether in connection with the performance of services by Brandhub or otherwise, you warrant that you own or are entitled to use such intellectual property and that Brandhub will not be in breach of any third party’s intellectual property rights by utilising such intellectual property in connection with the performance of services for you or for any other purpose authorised by you, and you indemnify Brandhub against any direct or indirect costs, losses (including consequential losses and loss of profits), damages, claims or liabilities that Brandhub may suffer or incur as a result of its use or possession of such intellectual property.
EXCLUSION OF LIABILITY
- Brandhub shall not be liable to you or any third parties for any loss, damage, expenses or any other liability arising directly or indirectly from the performance of Work for you by Brandhub pursuant to these Terms or as otherwise agreed, or from your use of any material or intellectual property prepared by Brandhub in connection with such Work. To the fullest extent permitted by law, Brandhub excludes all warranties or conditions implied by statute, at law, by trade, custom or otherwise.
- Brandhub shall not be liable to you or any third parties for any loss, damage, expenses or any other liability arising directly or indirectly from any difficulty utilising or accessing any material provided to you by Brandhub in any way arising out of computer error, software compatibility issues or any other computer related issue.
- Brandhub shall not be liable to you or any third parties for any loss, damage, expenses, or any other liability arising directly or indirectly from your use and/or modification of any source files Brandhub may agree to hand over, after those source files have been handed to you, and you shall fully indemnify Brandhub against any such loss, damage, expenses, or any other liability.
- All Work undertaken for you is to be treated in strict confidence, and Brandhub and you will use their best endeavours to prevent the unauthorised use, copying, publication or disclosure of the content or nature of such Work, or the arrangement between Brandhub and you, until the information becomes public knowledge or the product of such Work is implemented.
RELATIONSHIP OF PARTIES
- Brandhub and you expressly agree that neither these Terms, nor any Brief, Work Proposal or Contract, shall be construed to create any employment, partnership, joint venture, agency or other relationship, nor shall any such relationships be implied into these Terms, any Contract or Brief. Brandhub and you acknowledge and agree that they are independent contractors and that each party be solely responsible for any and all expenses incurred by it in relation to these Terms, any Contract or Brief.
- You expressly acknowledge and accept that Brandhub may provide creative services to third parties in relation to products that may compete directly with products that are the subject of Work carried out for you by Brandhub.
- You agree that, if requested by Brandhub as a prerequisite of Brandhub performing Work for you, you will arrange for a person or persons approved by Brandhub to guarantee your obligations under these Terms, by printing, signing, and returning to Brandhub a guarantee in the form supplied by Brandhub.
APPLICABLE LAW & JURISDICTION
- Any engagement of Brandhub by you shall be governed by and construed in accordance with New Zealand law. You agree to submit to the non-exclusive jurisdiction of the tribunals and courts of New Zealand with respect to any claim or matter arising out of or in connection with this Agreement.