For years we have resisted having Terms of Service but recently we changed our tune. Not because we’ve ever needed them, nor because we can foresee that we may need them. We decided the time had come for a number of reasons, and not in any particular order. Firstly, if clients need a confidentiality agreement it’s there – Section 6. We’re professionals, confidentiality is a given, but now our commitment is in print. Secondly, as professionals, offering a professional service, being clear on what parameters we work within is a good thing for all parties. And lastly, but probably not least, it makes our business stronger. We’ve poured a lot into this little business over the last 13 years and it’s important to us that it has all the foundations it needs to make it strong for the future. Refreshing the brand, redeveloping the website and sharing more of our work was one part of this. Drafting our Terms of Service are the next.
We still hope any misunderstandings can be resolved with a conversation but failing that all parties can refer to the following terms for guidance.
1. TERMS
1.1. These Terms of Service (Terms) will apply to our continuing relationship with you. By using our Services, you agree to be bound by these Terms. We reserve the right to change the Terms at any time and will advise of you this; your continued engagement of us will constitute consent to such changes.
2. KEY DEFINITIONS
2.1. You means the company or individual who requests our Services and includes all employees and agents of the entity requesting our Services.
2.2. Services means any Goods provided (including any physical or digital files, photographs, information, printed or digital material, data or software, or models) or Services (including any advice or recommendations, technical service, and support or training) provided by us to you.
3. FEES, QUOTES AND PAYMENT
3.1. Fees
3.2. Where requested, we are happy to provide you with a quote or estimate of Services.
3.3. If we do provide you with a quote, the Fee chargeable and payable by you is the amount agreed between us and recorded in the quote.
3.4. Where we provide an estimate, we will do our best to ensure our Fee is in accordance with the estimate or otherwise advise you in advance of any change to the estimate and scope of Services.
3.5. Disbursements and expenses
3.6. In providing Services, we may incur external costs, or need to make payments to third parties on your behalf. We will invoice you those costs when the expense is incurred.
3.7. You agree to pay these costs and expenses incurred by us as detailed in any invoice.
3.8. Payment
3.9. You agree to pay us the Fees detailed in any Quote or invoice.
3.10. On receipt of an invoice from us, all Fees due to us must be made:
3.10.1. in full without any deduction, set off, counterclaim or otherwise; and
3.10.2. by automatic payment to such bank account specified on the invoice.
3.11. If the Fee is not paid by the due date specified on the invoice, we may require you to pay additional costs, including:
3.11.1. interest on any such overdue Fees, at a rate of 15 percent per month;
3.11.2. any actual costs and expenses incurred by us in collecting overdue Fees, including without limitation third party debt collection and legal costs in full; and
3.11.3. an overdue account administration charge of $50.00 plus GST for any Fee more than ten days overdue.
3.12. Unless otherwise specified all amounts stated are exclusive of any GST if applicable.
4. LIABILITY
4.1. We will do our best to ensure that we use our professional skills and expertise to provide you the best Services possible. However, to the greatest extent permitted by law, we (including our employees, contractors, or agents) will not be liable to you for any loss, damages or costs of any nature, direct or indirect, no matter how arising, as a result of our relationship with you, or in the course of performing the Services.
4.2. Clause 4.1 does not exclude our liability arising from wilful misconduct or gross negligence by Shout Marketing.
4.3. In the event that any limitation or provision in these Terms is held to be invalid or unenforceable and we become liable for losses, damages or costs that would otherwise have been excluded; and also in respect of any liability pursuant to clause 4.2 above, our maximum liability to you shall be limited to the Fees paid to us by you in the preceding six month period.
4.4. You will indemnify us on demand in relation to any losses, damages or costs of any nature whatsoever suffered as a result of any breach of these Terms by you.
4.5. You acknowledge that where we have been requested to provide new or unique Services, that it may not be possible for us to accurately estimate the likely timeframe such work may require, or the likelihood that such a request may be able to be delivered successfully. In such cases, provided we can demonstrate we have acted in accordance with our standard practices in trying to meet your desired outcomes we will not be liable to you for a failure to achieve any such outcomes.
4.6. We will not be liable for any delay in provision of Services due to your failure to provide information requested by us which is necessary to perform the Services.
4.7. The parties acknowledge and agree that the limitations contained in this clause are reasonable in the light of all the circumstances.
5. GENERAL PROVISIONS
5.1. Neither these Terms nor any Quote shall be deemed to constitute a partnership, joint venture, or contract of employment between us.
5.2. Neither party will be liable for any failure to meet their obligations under these Terms due to the occurrence of any event beyond the reasonable control of that party including without limitation, any ‘Act of God’, fire, accident or natural disaster.
5.3. Failure or omission at any time by either party to enforce or require strict or timely compliance with any provision of these Terms shall not affect or impair that party’s right to make use of the rights or remedies that may be available to it under these Terms and shall remain enforceable at all times.
5.4. These Terms shall be construed in accordance with the laws of New Zealand. Any proceedings arising in respect of these Terms will be subject to the exclusive jurisdiction of the Courts of New Zealand.
5.5. Except as explicitly provided in these Terms, you may not assign or otherwise deal with your rights and obligations otherwise than in accordance with these Terms.
5.6. If any part, clause or provision of these Terms is deemed invalid or unenforceable by any court with jurisdiction, such part, clause or provision is deemed to be severed and the remainder of these Terms or any such Quote will continue to be binding on the parties.
5.7. These Terms constitute the entire agreement between us in respect of their subject matter and supersede any previous understandings or agreements, including any verbal discussions or emails exchanged between us.
5.8. Unless recorded in a Quote, you may not rely on any representations made by us prior to accepting these Terms.
5.9. In the event that either party reasonably requires additional time to comply with any of its stated obligations pursuant to these Terms, the other party will act reasonably in considering any such request for additional time.
5.10. We may perform any or all of our obligations to you through agents or sub-contractors.
6. INTELLECTUAL PROPERTY & CONFIDENTIALITY
6.1. All rights in the Intellectual Property (IP) created by the Services vest in, or will upon their creation vest in us.
6.2. We grant you a non-transferable, non-exclusive license to use and reproduce the IP created in the provision of the Services;
6.3. You must not, without our prior written consent:
6.3.1. adapt, create derivative works from or merge or alter any IP created by us;
6.3.2. use the IP for any purpose other than the specific purpose for which we have provided it;
6.3.3. reverse engineer, disassemble or decompile the IP;
6.3.4. distribute, lend, resell, transfer, assign or sublicense the IP, or allow any other party to use or benefit from it; and
6.3.5. remove or attempt to remove any proprietary or copyright notices or any labels on the IP.
6.4. The supply of raw / editable / native files to you is at our discretion.
6.5. Stock images and commercial fonts remain our property at all times.
6.6. We do not warrant that your use of designs, materials or content produced in the course of providing the Services will not infringe any third party’s rights, but we will advise you if we become aware of any infringement.
6.7. Where requested, you agree to display our logo or a text hyperlink describing the nature of the Services provided on any content provided to you by us.
6.8. You agree to allow us to use the Services provided for promotional and portfolio purposes.
6.9. You agree to provide feedback or a testimonial upon request after performance of the Services.
6.10. Any confidential information provided by you to us during the course of our agreement with be treated in strict confidence. Except as necessary for us to perform the Services for you or enforcing any rights under this agreement, we will not use or disclose confidential information to any third party, for any other purpose.
7. DURATION OF AGREEMENT AND TERMINATION
7.1. Upon execution by both parties these Terms will take effect immediately and remain in effect until the purpose of the provision of the Services by us has been achieved, unless terminated earlier under this clause 7.
7.2. A party may terminate this agreement by notice in writing to the other party if:
7.2.1. the other party commits a material breach of these Terms that is capable of remedy (including failure to pay any amount due under this agreement) and fails to remedy that breach within 14 days after receiving notice from the other Party to do so;
7.2.2. the other party commits a material breach of this agreement that is not capable of remedy; or
7.2.3. the other Party becomes insolvent.
7.3. We may terminate this agreement if:
7.3.1. you do not provide any information or materials requested within a reasonable time after being asked to do so; or
7.3.2. we consider that mutual confidence and trust no longer exist.
7.4. Upon termination of these Terms:
7.4.1. our obligations to you cease;
7.4.2. each party’s rights and obligations accrued prior to termination are not affected;
7.4.3. the license granted in clause 6.2 ceases;
7.4.4. any unpaid invoice/s owed to us must be paid immediately;
7.4.5. each party must immediately return to the other party (or destroy or delete as the other party wishes) all confidential information of the other party in its possession or control, except to the extent that the party needs to keep such information to comply with its record-keeping obligations; and
7.4.6. except as provided in clause 7.4, clauses 4, 5, 6, 7 and 8 will continue.
8. PERSONAL GUARANTEE
8.1. In consideration of us agreeing to supply or continuing to supply the Services to you, you jointly and severally (if more than one) HEREBY GUARANTEE to us (and its successors and assigns) the due and punctual payment of all Fees due and the performance of all obligations to us by you and agree to pay such moneys and perform such obligations on demand to us, and as between us and you, you shall be deemed to be principal debtor(s) to us.
8.2. This guarantee shall be a continuing guarantee to us for all moneys and all obligations whatsoever owing by you to us in respect of Services supplied and shall remain in force until you are released in writing from this guarantee by us. The liability under this guarantee shall not be discharged, abrogated, prejudiced or affected by:
8.2.1. Any settlement of account;
8.2.2. The granting of time, credit or other indulgence or other concession by us to you;
8.2.3. Any alteration, modification, variation or addition to any agreement in respect of the supply of the goods; or
8.2.4. Any other act, omission or event which but for this provision might operate to discharge, impair or otherwise affect any obligations under this guarantee or any of the rights, powers or remedies conferred by this guarantee or by law.
PLEASE NOTE these Terms contain a personal guarantee clause.