MagentaDot Brands’ Project Process
Project Design & Development Terms and Conditions in a nutshell.
In the absence of a specific contract for your Branding, Print or Web Design project, this contract will apply.
MagentaDot Brands will endeavour to operate in a fair and reasonable manner at all times and it is part of our ethos to ensure we promote the professional principles of partnering and collaboration in our approach to design and marketing communications projects and we strive to maintain an open and trusting relationship with our clients. It is, however, important to agree to certain contractual aspects in order to protect both parties. By undertaking a Branding, Printing and/or Website or other design project with MagentaDot Brands Ltd, you are agreeing to the following terms and conditions.
Relationship of the Parties
The parties intend that an independent contractor relationship will be created by this contract, and that no partnership, joint venture or employee/employer relationship is intended or implied.
- Time spent is charged per hour (time is billed in one minute increments) unless otherwise stated or quoted.
- A 50% payment is required as a deposit for work on your jobs to commence. The balance is to be paid on completion the work on your jobs, unless there is a credit account in place.
- All goods and services remain the property of MagentaDot Limited and Shaun Waugh until paid in full.
- If any invoice is unpaid, the debt collection and legal costs will be added onto the unpaid amount.
- Once the work order has been confirmed, we will provide an invoice based on that and then proceed with the job upon the 50% deposit being paid.
- Branding, desktop publishing and Web Design Project Processes
MagentaDot Brands’ Project Process.
The project will be run according to MagentaDot Brands’ Project Process.
MagentaDot Brands cannot always guarantee to start work immediately on a project but will coordinate a date with the client when work can commence.
If MagentaDot Brands has produced a proposal spreadsheet wireframe document for the project then MagentaDot Brands will commence work at once, provided you supply us with:
- Logos, illustrative designs, photos, graphics and any related materials to be incorporated into the Web solution in a state ready for publication. Final written content, data, and other textual information. These materials must be made supplied prior to the website design and build phase commencing. Any further additional or alternative material supplied at a later date may incur an additional charge.
- Where applicable comply with all the terms of any custom Web hosting agreement set up through third parties recommended by MagentaDot Brands.
- Should you decide to make design changes once the concept has been signed off, MagentaDot Brands may quote for an additional charge.
During the Web Site Development Cycle MagentaDot Brands may at intervals place versions of the client’s Web site on one of MagentaDot Brands’s demonstration servers so that the client may view and comment upon the Web site’s progress, and approve design concepts and prototypes. When both MagentaDot Brands and the client agree that the Web site meets the criteria agreed during the projecting process, MagentaDot Brands will invoice the client for the remainder of the amount due for the project. At MagentaDot Brands’s discretion, MagentaDot Brands may choose to delay publishing some clients Web sites until full payment for the Web design project has been received.
Responsive Website Beta phase acceptance testing
We will conduct acceptance testing on the deliverables across major platforms, desktop, laptop, tablet and smartphone to ensure that it performs in accordance with the proposal. You will also need to conduct acceptance tests on the deliverables within 2 weeks of the site’s beta installation to ensure that it performs in accordance with the proposal. If a site deliverable does not pass the acceptance test, we will correct the failure. You will then repeat the acceptance testing. Such processes shall continue iteratively until the relevant deliverable passes the acceptance test.
If during the project process you request additional or revised functionality/site content from the deliverables specified in the specification or proposal outline, then MagentaDot Brands will provide a time plus materials quote for providing these increases to the job scope which will be charged in addition to the cost of the Web project.
Responsive Web Solutions will be designed and tested to operate on mainstream PC and Mac web browsers. laptops and Mobile devices, such as iPhones, Android Phones and also tablets.
Hourly Rates & Tax
Hourly rates for creative work are charged in your local currency, or USD for those not listed below
- Canada – $100.00 CAD. No GST/Sales Tax is charged.
- UK – £70.00 POUND. No VAT is charged.
- European Union – €80.00 EURO. No VAT is charged.
- New Zealand – $100.00 NZD + GST of 15%.
- Australia – $100.00 AUD. No GST is charged.
- United States – $100.00 USD. No Sales Tax is charged.
- Social enterprises or registered charitable trusts or may be eligible for special discounted rates.
Rates for non-creative work, i.e.; clerical tasks, image library tasks, copy typing, and research are charged at rates beween $NZD 50–$100. These rates are specified in job detail activity reports and invoices.
Terms & Conditions of Agreement for Design Services
As used herein and throughout this Agreement:
1.1 Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
1.2 Client Content means all materials, information, factual, promotional, or other advertising claims, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.3 Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as deﬁned and enforceable under N.Z. Copyright Law.
1.4 Deliverables means the services and work product speciﬁed in the Proposal to be delivered by MagentaDot Brands Limited, Designer Shaun Waugh, or any agents or employees thereof.to Client, in the form and media speciﬁed in the Proposal.
1.5 Designer Tools means all design tools developed and/or utilized by MagentaDot Brands in performing the Services, including without limitation pre-existing and newly developed software including source code, web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
1.6 Final Works means all creative content developed by MagentaDot Brands, or commissioned by MagentaDot Brands, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, typographic treatments and text, modiﬁcations to Client Content, and MagentaDot Brands’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.7 Final Deliverables means the ﬁnal versions of Deliverables provided by MagentaDot Brands and accepted by Client.
1.8 Preliminary Works means all creative content including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by MagentaDot Brands and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Works.
1.9 Project means the scope and purpose of the Client’s identiﬁed usage of the work product as described in the Proposal.
1.10 Services means all services and the work product to be provided to Client by MagentaDot Brands as described and otherwise further deﬁned in the Proposal.
1.11 Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.12 Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
1.13 Working Files means all underlying work product and digital ﬁles utilized by MagentaDot Brands to create the Preliminary Works and Final Works other than the format comprising the Final Deliverables.
The terms of the Proposal shall be effective for [ – an agreed number of — ] days after presentation to Client. In the event this Agreement is not executed by Client within the time identiﬁed, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3. FEES AND CHARGES
3.1 Fees. In consideration of the Services to be performed by MagentaDot Brands, Client shall pay to MagentaDot Brands fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
3.2 Expenses. Client shall pay MagentaDot Brands’ expenses incurred in connection with this Agreement as follows:
- incidental and out-of-pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus MagentaDot Brands’ standard markup of twenty five percent (25%), and, if applicable, a mileage reimbursement at $1.25 per kilometer; and
- travel expenses including transportation, meals, and lodging, incurred by MagentaDot Brands with Client’s prior approval.
3.3 Additional Costs. The Project pricing includes MagentaDot Brands’ fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, printing, signwriting and online access or hosting fees, will be typically billed directly to Client by the third party provider unless speciﬁcally otherwise provided for in the Proposal.
3.4 Invoices. Unless otherwise agreed, all Clients who have a good credit history with MagentaDot Brands or whose application for credit has been approved (all accounts are on a cash basis for the first six (6) months), payment for Goods and Services shall be made in full within seven (7) days of the date of receipt of invoice. Any other Clients will be required to pay a 50% deposit prior to work starting and the balance the day prior to provision of deliverables or on completion. A monthly service charge of 2.5 percent interest (2.5%) is payable on all overdue balances per month and will be calculated on a day by day basis until payment is made in full. Payments will be credited ﬁrst to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. MagentaDot Brands reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.
3.5 Deposit. MagentaDot Brands may, at its sole discretion, require payment of a deposit by any Client prior to starting any project.
3.6 Administration fee. An Administration fee may be charged on all overdue amounts in addition to any other charges pursuant to this clause.
3.7 Debt recovery expenses. Any expenses, disbursements and legal costs incurred by MagentaDot Brands in the enforcement of any rights contained in this contract shall be paid by the Customer, including any actual solicitor’s fees or debt collection agency fees.
3.8 Cheque payment terms. Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
3.9 Work in progress payments. Progress payments may be required where work is completed over an extended period of time or if work is suspended at the request of or delayed through any default of the Customer. After work has been in hand for one month or more, a progress payment of the value of the work completed, materials specially ordered and other additional costs including storage (specifically for suspended or delayed work) may be requested. Further progress payments calculated on the same basis may be required to be paid on a monthly basis until completion of the work.
3.10 Defaults in payment. If the Customer defaults in any payment by breaching terms of article 3.5 Invoices or commits any act of bankruptcy or any act which would render it liable to be wound up or if a resolution is passed or proceedings are filed for the winding up of the Customer or if a receiver is appointed for all or any assets of the Customer, MagentaDot Brands may cancel any Order without prejudice to any other rights it may have and payment for all completed Orders shall immediately become due.
4.1 General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at MagentaDot Brands’ standard hourly rate of NZD$100 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or ﬁnal price identiﬁed therein. MagentaDot Brands may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
4.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision in or near excess of fifty percent (50%) of the time required to produce the Deliverables, and or the value or scope of the Services, MagentaDot Brands shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by MagentaDot Brands.
4.3 Timing. MagentaDot Brands will prioritize performance of the Services as may be necessary or as identiﬁed in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identiﬁed in the Proposal. Client agrees to review Deliverables within the time identiﬁed for such reviews and to promptly either,
- (i) approve the Deliverables in writing or
- (ii) provide written comments and/or corrections sufﬁcient to identify the Client’s concerns, objections or corrections to MagentaDot Brands. MagentaDot Brands shall be entitled to request written clariﬁcation of any concern, objection or correction. Client acknowledges and agrees that MagentaDot Brands’ ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or MagentaDot Brands’ obligations under this Agreement.
4.4 Testing and Acceptance. MagentaDot Brands will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within ﬁve (5) business days of receipt of each Deliverable, shall notify MagentaDot Brands, in writing, of any failure of such Deliverable to comply with the speciﬁcations set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufﬁcient to identify with clarity any objection, correction or change or amendment, and MagentaDot Brands will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
5. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
- (a) coordination of any decision-making with parties other than MagentaDot Brands;
- (b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal;
- (c) ﬁnal proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the ﬁnished product, Client shall incur the cost of correcting such errors ; and
- (d) ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Client’s industry.
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in MagentaDot Brands’ name in the form, size and location as incorporated by MagentaDot Brands in the Deliverables, or as otherwise directed by MagentaDot Brands. MagentaDot Brands retains the right to reproduce, publish and display the Deliverables in MagentaDot Brands’ portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
7. CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with this Agreement it may receive certain conﬁdential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Conﬁdential Information”). Each party, its agents and employees shall hold and maintain in strict conﬁdence all Conﬁdential Information, shall not disclose Conﬁdential Information to any third party, and shall not use any Conﬁdential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Conﬁdential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of conﬁdentiality.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractor. MagentaDot Brands is an independent contractor, not an employee of Client or any company afﬁliated with Client. MagentaDot Brands shall provide the Services under the general direction of Client, but MagentaDot Brands shall determine, in MagentaDot Brands’ sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. All rights, if any, granted to Client are contractual in nature and are wholly deﬁned by the express written agreement of the parties and the various terms and conditions of this Agreement.
8.2 MagentaDot Brands Agents.
MagentaDot Brands shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, MagentaDot Brands shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
8.3 No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any MagentaDot Brands, employee or Design Agent of MagentaDot Brands, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that MagentaDot Brands shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. MagentaDot Brands, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.
8.4 No Exclusivity.The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by MagentaDot Brands, and MagentaDot Brands shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by MagentaDot Brands.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client. Client represents, warrants and covenants to MagentaDot Brands that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of Client’s knowledge, the Client Content is accurate, legal, conforms to ethical standards of the Client’s industry, does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
9.2 By MagentaDot Brands .
(a) MagentaDot Brands hereby represents, warrants and covenants to Client that MagentaDot Brands will provide the Services identiﬁed in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
(b) MagentaDot Brands further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of MagentaDot Brands and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by MagentaDot Brands, MagentaDot Brands shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufﬁcient for MagentaDot Brands to grant the intellectual property rights provided in this Agreement, and (iii) to the best of MagentaDot Brands’s knowledge, the Final Works provided by MagentaDot Brands and MagentaDot Brands’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identiﬁed in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of MagentaDot Brands shall be void.
(c) Except for the express representations and warranties stated in this Agreement, MagentaDot Brands makes no warranties whatsoever. MagentaDot Brands explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or ﬁtness for a particular purpose or compliance with laws or government rules or regulations applicable to the Project.
10. INDEMNIFICATION / LIABILITY
10.1 By Client. Client agrees to indemnify, save and hold harmless MagentaDot Brands from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances MagentaDot Brands shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) MagentaDot Brands provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by MagentaDot Brands in providing such assistance.
10.2 By MagentaDot Brands. Subject to the terms, conditions, express representations and warranties provided in this Agreement, MagentaDot Brands agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any ﬁnding of fact which is inconsistent with MagentaDot Brands’ representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notiﬁes MagentaDot Brands in writing of the claim; (b) MagentaDot Brands shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide MagentaDot Brands with the assistance, information and authority necessary to perform MagentaDot Brands’ obligations under this section. Notwithstanding the foregoing, MagentaDot Brands shall have no obligation to defend or otherwise indemnify Client for any claim or adverse ﬁnding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by MagentaDot Brands .
10.3 Settlement Approval. The indemnifying party may not enter into any settlement agreement without the indemniﬁed party’s written consent.
10.4 Limitation of Liability. The services and the work product of MagentaDot Brands are sold “as is.” In all circumstances, the maximum liability of MagentaDot Brands, its directors, ofﬁcers, employees, design agents and afﬁliates (“MagentaDot Brands parties”), to Client for damages for any and all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net proﬁt of MagentaDot Brands. In no event shall MagentaDot Brands be liable for any lost data or content, lost proﬁts, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by MagentaDot Brands , even if MagentaDot Brands has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
11. TERM AND TERMINATION
11.1 Term. This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
11.2 Termination. This Agreement may be terminated for convenience at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or for cause if any party:(a) becomes insolvent, ﬁles a petition in bankruptcy, makes an assignment for the beneﬁt of its creditors; or (b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
11.3 In the event of termination, MagentaDot Brands shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by MagentaDot Brands or MagentaDot Brands’ agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation. In the event of termination for convenience by Client, Client shall pay in addition to the above an early termination fee equal to 25% of the total project fee, Schedule A shall not be effective, and Client shall not have rights to use Deliverables except upon written consent from MagentaDot Brands provided after such termination.
11.4 In the event of termination for convenience by MagentaDot Brands or for cause by Client, and upon full payment of compensation as provided herein, MagentaDot Brands grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
11.5 Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Conﬁdential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
12.1 Modiﬁcation/Waiver. This Agreement may be modiﬁed by the parties. Any modiﬁcation of this Agreement must be in writing, except that MagentaDot Brands’ invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return conﬁrmation of receipt or by certiﬁed or registered mail, return receipt requested, and shall be sent to the addresses identiﬁed below, unless notiﬁcation of change of address is given in writing. Notice shall be effective upon receipt or in the case of email, upon conﬁrmation of receipt (by automated conﬁrmation or substantive reply by the recipient).
12.3 No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party except that this Agreement may be transferred or sold as part of a transfer or sale of the assigning party’s entire business or portion thereof relating to the Project.
12.4 Force Majeure. MagentaDot Brands shall not be deemed in breach of this Agreement if MagentaDot Brands is unable to complete the Services or any portion thereof by reason of ﬁre, earthquake, ﬂood, storm or other severe weather, labour dispute, act of war, terrorism, riot or other severe civil disturbance, death, illness or incapacity of MagentaDot Brands or any local bylaw, city, national or international law, governmental order or regulation or any other event beyond MagentaDot Brands’ control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, MagentaDot Brands shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
12.5 Governing Law and Dispute Resolution.The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of New Zealand without regard to its conﬂict of law provisions or the conﬂict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the Disputes Court, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its legal fees and costs. In all other circumstances, the parties speciﬁcally consent to the courts in New Zealand. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that MagentaDot Brands will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that MagentaDot Brands shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
12.6 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
12.7 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
12.8 Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conﬂict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. Any other ambiguities shall be resolved with the most reasonable and legally valid construction, without regard to authorship of such provisions. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A, and the following documents as indicated by the parties’ initials:
________ Supplement 1: Print-Speciﬁc Terms and Conditions
________ Supplement 2: Interactive-Speciﬁc Terms and Conditions
________ Supplement 3: Environmental-Speciﬁc Terms and Conditions
________ Supplement 4: Motion-Speciﬁc Terms and Conditions
By their execution below, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature below, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.
Shaun Waugh, 7 Drake Street, South New Brighton Christchurch
Signed: ___________________________Date: ______________________________
By: [Client ofﬁcer name]
Title: _____________________________Date: _____________________________
Schedule A: Intellectual Property Provisions
Option 2: Exclusive License
IP 1. RIGHTS IN THE FINAL DELIVERABLES
IP 1.1 Final Works. Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, MagentaDot Brands hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce and display the Final Works solely in connection with the Project as deﬁned in the Proposal. Any additional uses will require separate pricing. All other rights, including Copyrights, are reserved by MagentaDot Brands.
(check one) ___ The rights granted to Client are for usage of the Final Works in their original form only. Client may not crop, distort, manipulate, reconﬁgure, mimic, animate, edit, extract portions, intentionally alter the color of the Final Works, or otherwise create derivative works based on the Final Works.
___ The rights granted to Client include the rights to adapt, modify and create derivative works based on the Final Works solely in connection with the Project and usage rights set forth herein.
IP 1.2 Trademarks. Upon completion of the Services, and expressly conditioned upon full payment of all fees and costs due, MagentaDot Brands assigns to Client all of MagentaDot Brands’ rights, including trademark and Copyright, in and to Trademarks created by MagentaDot Brands. MagentaDot Brands shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that Trademarks do not infringe the rights of third parties, and Client shall indemnify, save and hold harmless MagentaDot Brands from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party alleging trademark infringement, or arising out of Client’s failure to obtain trademark clearance or permissions, for use of Trademarks.
IP 1.3 Client Content. Client Content, including pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all trademark, trade secrets, patents, Copyrights, and other rights in connection therewith. Client hereby grants to MagentaDot Brands a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with MagentaDot Brands’ performance of the Services and promotional uses of the Deliverables as authorized in this Agreement.
IP 1.4 Third Party Materials. Intellectual property rights in Third Party Materials shall be owned by the respective third parties. MagentaDot Brands shall inform Client of all Third Party Materials to be procured by MagentaDot Brands that Client may need to license at Client’s own expense, and unless otherwise arranged by Client, MagentaDot Brands shall obtain a license for Client to use the Third Party Materials consistent with the usage rights granted herein. Client shall indemnify, save and hold harmless MagentaDot Brands from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Works at Client’s request.
IP 2. RIGHTS RESERVED TO MAGENTADOT BRANDS
IP 2.1 Preliminary Works/Working Files. MagentaDot Brands retains all proprietary rights, including property ownership, intellectual property rights and Copyrights, in and to all Preliminary Works and Working Files, and Client shall return to MagentaDot Brands all Preliminary Works and Working Files in Client’s possession within thirty (30) days of completion of the Services.
P 2.2 Original Artwork. MagentaDot Brands retains property ownership in any original artwork comprising Final Works, including all rights to display or sell such artwork. Client shall return all original artwork to MagentaDot Brands within thirty (30) days of completion of the Services.
IP 2.3 Designer Tools. MagentaDot Brands’ Tools and all intellectual property rights therein, including Copyrights, shall be owned solely by MagentaDot Brands. MagentaDot Brands hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s publisher, web hosting or Internet service providers), perpetual, worldwide license to use the MagentaDot Brands Tools solely with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, or otherwise disassemble or modify any Designer Tools comprising software or technology.
IP 3. LIQUIDATION RIGHTS
IP 3.1 Liquidation for Unlicensed Use. Client’s use of the Deliverables shall be limited to the usage rights granted herein for the Project only. In the event Client, or its agents, uses Final Works or other Deliverables, including Preliminary Works and Working Files, or any derivative works thereof, for another project or outside the scope of the rights granted herein, MagentaDot Brands shall be entitled to further compensation equal to seventy five percent (75%) of the original Project fee unless otherwise agreed in writing by both parties