Lucid Design Limited agrees to provide you with Goods and/or Services on the terms and conditions set out below. Please review our terms and conditions carefully.
1.1 In this Agreement:
(a) “Customer", “you” and “your” means the person, firm, company or entity purchasing Goods and/or Services from us.
(b) “Goods” means any goods sold by us to you pursuant to a Project.
(c) “GST” means goods and service tax as defined in the Goods and Services Tax Act 1985 and any amendment or replacement thereof.
(d) “Interest Rate” means three percent above our bank’s overdraft interest rate.
(e) “Lucid”, “we", "our" and "us" means Lucid Design Limited.
(f) “PPSA” means the Personal Property Securities Act 1999 and any amendment or replacement thereof.
(g) “Price” means the price for the supply of Goods and/or Services pursuant to a Project as specified in our invoices.
(h) “Project” means any project for the supply by us to you of Goods and/or Services.
(i) “Security Interest” has the meaning given to it under the PPSA.
(j) "Services" means all services provided by us to you pursuant to a Project.
2. CONSTRUCTION OF THE CONTRACT
2.1 Application of terms: These terms and conditions:
(a) apply to any and all:
(i) quotes or estimates given by or on our behalf;
(ii) any Project or any other dealings with us;
(iii) Goods and/or Services provided by us;
(b) replace any previous versions of terms or agreements issued by us, in their entirety;
(c) continue to apply as between us and you where you instructs us to provide you with Goods and/or Services and no new agreement is entered into between us and you; and
(d) apply to the exclusion of all and any terms put by or on your behalf to us as part of any Project, quote or estimate.
2.2 Terms prevail: To the extent that any order for the supply of Goods and/or Services submitted by you attempts to include terms that are inconsistent with these terms and conditions, those terms will not apply and these terms and conditions will prevail. Any additional or different terms, included in any document submitted by you will be of no effect unless expressly agreed to in writing by us.
2.3 Acceptance of terms: Your acceptance of any quote, estimate or Goods and/or Services supplied by us, indicates acceptance of these terms and conditions.
3.1 Accuracy of information: Unless expressly recorded in writing, any estimate of the price of any Goods and/or Services we may provide you will be based on information supplied by or on your behalf. You must provide us full and accurate information in relation to any quote or estimate you request. We are not liable for any inaccuracy in a quote or estimate arising out of or in connection with information you have provided us.
3.2 Status of estimate: We are not bound to supply you the Goods and/or Services at the estimated price as it is not a firm quote and we may vary the Price upon notice.
3.3 No liability: We are not liable to you for any loss whatsoever you may incur arising, directly or indirectly, out of any errors or omissions in an estimate or quote we prepare in reliance on information you provide us.
3.4 Validity of quotes: Quotes are valid for 30 days from the date of the quote.
4.1 Acceptance of order: We are not obliged to accept any Project and we will not be bound by or be deemed to have accepted any Project, quote or estimate unless we expressly accept the same in writing. We will not be deemed to have accepted a Project if we deliver part of a Project but do not confirm the entire Project in writing.
4.2 Cancellation of order: You cannot cancel a Project unless we agree subject to you indemnifying us against all actual, prospective, consequential, direct and indirect costs, loss, damages and expenses as a result of the cancellation. For the avoidance of doubt, if you wish to cancel a Project, you must pay us for all Goods and/or Services provided to you up to the date of cancellation.
5.1 GST: Unless otherwise stated, all estimates or prices quoted are excluding GST and other taxes and duties (if any). The amount payable by you for Goods and/or Services will be the Price, any additional charges, any GST and other taxes and duties (if any).
5.2 Additional services: If we believe, in our reasonable opinion, that any instructions or requests are beyond the scope of the original design brief and/or specifications on which the estimate or quote is based (including, without limitation, any change in deadlines), all time and/or resources applied to carry out such instructions or requests will be additional to the Price for the entire Project and charged at our standard hourly rates applying as at the date of the additional work. We will seek and obtain your approval prior to incurring any such additional expense.
5.3 Variation of price: We may increase or decrease the Price of Goods at our sole discretion by the amount of any increase or decrease in the cost of any items (including any change in currency exchange rates) affecting the cost of the supply, production and/or delivery of the Goods between the date of the Order and the date of delivery of the Goods. Any alterations to the Price will be effective from the date specified by us at the time of providing notice to you.
6. PAYMENT TERMS
6.1 Time of payment: You must pay for all Goods and/or Services as follows:
(a) immediately upon our acceptance of a Project, you must pay a deposit of:
(i) for New Zealand based customers, 33 percent of the Price; and
(ii) for overseas based customers, 50 percent of the Price; and
(b) within seven days of the date of each invoice, notwithstanding part delivery of the Goods and/or Services.
6.2 Invoice: We will send you an invoice:
(a) for services, on a monthly basis in arrears for all Services provided in the previous month; and
(b) for Goods, at the time an order is confirmed or on delivery of Goods, at our discretion.
6.3 Set-off: Your payment of the Price and any other monies owing to us must be free of any counterclaim, set-off, deduction or other claim whatsoever.
6.4 Interest: In addition to the remedies in clause 7, if you fail to pay an invoice on the due date we may charge you:
(a) interest on the amount outstanding from the due date until the date of payment at the Interest Rate calculated daily; and
(b) for any costs or expenses we may incur in collecting or taking action to collect any money you owe us including the full costs to us of any legal or debt collection fees.
6.5 Disputed invoices: If you dispute any amount in an invoice issued you must:
(a) notify us as soon as reasonably practicable, identifying the amount in dispute and the reasons for the dispute; and
(b) pay any balance of the invoice which is not in dispute by the due date.
6.6 Allocation of payment: We may apply any payment made by or on your behalf in and towards the satisfaction of any amount you owe us as we see fit. We will not be bound by any conditions or qualifications that you may make in relation to any such payment. You waive any right to receive notification of how your payment was allocated to your account.
7.1 Event of default: You are in default if any of the following events occur:
(a) if, in our opinion, you are unable to pay or do not pay your debts or any amounts owing to us as they become due and payable; or
(b) you breach any provision of these terms and conditions and fail to remedy that breach within 14 days after receipt of notice requiring the breach to be remedied.
7.2 Default: If you are in default then subject to the requirements of any applicable law (and in addition to and without limiting any of our other rights in these terms or at law) we may at our sole discretion do one or all of the following:
(a) delay delivery of any Goods and/or Services until the matter has been resolved to our sole satisfaction;
(b) deduct or set-off against any amount we may owe you, all amounts you owe us including, without limitation, any damage, losses, cost or expenses (including actual legal costs and expenses) arising from the default or no-performance by you;
(c) terminate the contract between you and us for the supply of Goods and/or Services; and/or
(d) lodge notice of the failed payment with all credit reporting agencies operating in New Zealand and in any other jurisdiction and commence debt recovery proceedings.
7.3 Consequences of termination: If we terminate the contract between you and us, you must:
(a) if required by notice from us, promptly return or (to the extent required by us) destroy all our property and confidential information in your possession or control, and certify that you have done so; and
(b) pay us for all Goods and/or Services provided to you up to the date of termination.
7.4 Costs of default: You will indemnify us against all actions, expenses, costs (including, without limitation, all legal costs), damages or losses incurred by or on our behalf resulting from our enforcement, defence or exercise of any or all of our rights under these terms and conditions.
7.5 Notice of changes: You must not change your name without first notifying us of the new name not less than seven days before the change takes effect. You must notify us of any changes in your details that may affect the accuracy of any information that we may have collected about you.
8. PROOFING OF DESIGN
8.1 Proofing of design: We will submit proofs along with an original copy for your review and approval (“Master Set”). You must proof read and approve, in writing, all final designs before completion of design or print production or manufacture. Until we have received your approval or instructions regarding the proofs in writing, we will not carry out any additional work. We will not be responsible for any undetected production errors if:
(a) you do not require proofs;
(b) the work is printed or Service is completed in accordance with your instructions; or
(c) request for changes are communicated to us verbally.
8.2 Liability for errors: You agree that we are not liable for any errors or omissions in the design if you have approved the final design without requesting any amendments or corrections.
8.3 Delay: You will be liable for any additional costs incurred by us as a result of delays caused by you.
8.4 Amendments after design finalised: You will be liable for all costs and expenses incurred by us in connection with any instructions, requests, alterations and corrections required after the design is finalised and approved by you. Any time and/or resources applied to carry out such instructions, requests, alterations and corrections will be additional to the Price for the entire Project and charged at our standard hourly rates applying as at the date of the additional work. We will seek and obtain your approval prior to incurring any such additional expense.
9.1 Place of delivery: We will, upon request, arrange delivery of any Goods to the address specified by you.
9.2 Time of delivery: We will agree with you the delivery date(s) and time(s) for a Project. We will make all reasonable endeavours to have the Goods and/or Services delivered on or before the delivery date(s) and time(s) agreed but we do not provide any guarantee regarding the same. If as a result of any event beyond our reasonable control we cannot effect delivery by the date(s) and time(s) agreed, we will be entitled to make part delivery, suspend delivery, or extend the delivery date(s) and time(s), for the period during which the delay continues to operate and in the event of such suspension or extension we will not be liable to you for any costs, losses or damages whatsoever. Such suspension or extension will not give you any right of repudiation or cancellation of the contract or any right of rejection in respect of any Goods and/or Services, other than as provided for in these terms and conditions.
9.3 Deemed delivery: The Goods will be deemed to be delivered from the time we give possession of the Goods to a carrier for delivery, whether arranged by us or you.
9.4 Instalments: We reserve the right to deliver the Goods by instalments and each instalment will be deemed to be a separate contract governed by these terms and conditions.
9.5 Cost of delivery: You must pay for the cost of delivery of the Goods.
9.6 Inspection: You are deemed to have inspected each of the Goods upon accepting delivery.
10.1 Risk: The Goods will be at your risk on and from delivery (whether to you or another person on your behalf). Risk in any website or software will pass upon acceptance of it by you.
10.2 Insurance: You are responsible for insurance of the Goods for their full replacement value from the time of delivery. We will forward the Goods with a carrier uninsured unless you instruct us otherwise or an undertaking to the contrary is given in the delivery invoice.
11.1 Title: Title to the Goods and the intellectual property in a website or any software developed for you will remain in us until all amounts owing to us for those Goods and/or Services have been paid in full. For the avoidance of doubt, we will not release to you control of a website, use of a domain name or the source code of any software, until we have been paid in full.
11.2 Your obligations: Until title to any particular Good passes to you, you will:
(a) hold those Goods as our bailee;
(b) return those Goods to us on request; and
(c) hold any cash proceeds of those Goods on trust for us in a separate account.
11.3 Sale of goods: Even though title to any particular Goods remain in us, you may sell those Goods on your own account provided that:
(a) any such sale is conducted at arms’ length and is for the full market value of those Goods; and
(b) we have not requested the return of those Goods.
12. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
12.1 You grant us a Security Interest in:
(a) the present and after-acquired Goods; and
(b) all intellectual property arising out of or in connection with the Services;
as Security for all amounts you owe us and performance of your obligations under these terms and conditions.
12.2 You will ensure that you are always able to identify:
(a) the Goods from any other goods that may be in your possession; and
(b) the particular Goods to which any invoice relates.
12.3 If you fail to comply with any term in these terms and conditions or any other agreement with us, we or our agent may exercise any and all remedies afforded to a secured party by Part 9 of the PPSA and enter any building or premises owned, occupied, or used by you, to search for and re-take possession of the Goods.
12.4 You agree that sections 114(1)(a), 133 and 134 of the PPSA will not apply on the enforcement by us of any Security Interest created or provided for by this Agreement. You waive any rights you may have under sections 116, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA on such enforcement.
12.5 You acknowledge receipt of a copy of these terms and conditions and waive any right you may have to receive from us a copy of any financing statement, financing change statement or verification statement that is registered, issued, or received at any time in relation to these terms and conditions.
12.6 Unless the context otherwise requires terms and expressions in these terms that are defined in the PPSA will have the same meaning in these terms as in the PPSA and references to the Goods and/or Services include references to any one of them.
12.7 You will not permit a Security Interest to be created or registered over the Goods and/or the intellectual property arising out of or in connection with the Services in priority to the Security Interest held by us.
13. CONSUMER GUARANTEES ACT 1993 (“CGA”)
13.1 You agree that you are acquiring Goods and/or Services for the purposes of a business (as that term is defined in the CGA) and to the extent permitted by law you agree that the provisions of the CGA will not apply to the supply of Goods and/or Services by us to you.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 Ownership: All intellectual property rights that are developed, commissioned or created under or in connection with the provision of the Goods and/or Services, including all intellectual property rights in modifications, adaptations and additions to your existing intellectual property rights that are developed, commissioned or created under or in connection with the provision of the Goods and/or Services, will be owned by you as such rights arise. We will deliver to you all necessary source and object code (in the case of software), documentation and instructions necessary to allow you to fully exploit and use your intellectual property rights.
14.2 Customer warranty: You warrant, undertake and represent to us that:
(a) you are entitled to supply to us all information, rights and materials that you supply us in connection with the provision of the Goods and/or Services;
(b) the information is true, accurate and not misleading in any respect (including by omission); and
(c) the possession and use of such information, rights and materials by us to provide the Goods and/or Services:
(i) will not infringe the intellectual property rights of any third party;
(ii) will comply with all legislative requirements (and in particular those in the Broadcasting Act 1989);
(iii) will meet the Broadcasting Standards Authority codes of practice and the Advertising Standards Authority's codes;
(iv) is not defamatory; and
(v) does not amount to a breach of confidence, a breach of restraint of trade, or passing off.
14.3 Indemnity: You indemnify us against all liabilities, damages, expenses and losses (including legal costs) arising from any claim or proceeding brought against us as a result of or in connection with a breach of clause 14.2.
15. CUSTOMER’S OBLIGATIONS
15.1 You will:
(a) provide us with reasonable cooperation in relation to the provision of the Goods and/or Services; and
(b) promptly respond to any reasonable requests for information made by us in relation to the Goods and/or Services.
16.1 You acknowledge that:
(a) all expressed or implied conditions, descriptions, representations, indemnities or warranties are expressly excluded in so far as is permitted by law, including (without limitation) warranties of accuracy, security, availability, tolerance to any condition, integration, satisfactory quality, merchantability, fitness for purpose, suitability, performance, compliance with specifications, title and non-infringement of third party rights;
(b) none of our agents or representatives are authorised to make any representations, statements, warranties, conditions or agreements not expressly specified in these terms and conditions and we are not in any way bound by any such representations, statements, warranties, conditions or agreements;
(c) you are responsible for ensuring that any instructions, recommended uses and applications are followed and any cautions and/or warnings observed; and
(d) where any recommendation or advice has been given by or on our behalf, we will not be responsible for the actual implementation of the recommendation or advice or the actions or performance of any party.
17.1 Exclusion of liability: To the extent permitted by law, we are not liable (whether in contract, tort or otherwise) to you or any of your directors, employees, agents, suppliers or any other persons whatsoever for any loss (including, without limitation, to any incidental, punitive or consequential loss, or loss of use, data, business, revenue, profit, goodwill or anticipated savings) or cost (including, without limitation, legal costs), damage (including, without limitation, any damage to any hardware or software), actions, proceedings, claims, demands, expense or liability arising directly or indirectly out of or in connection with any cause whatsoever connected with:
(a) the late supply of or failure to supply the Goods and/or Services;
(b) any defect(s) in the Goods and/or Services provided, or any part thereof due to any cause whatsoever;
(c) use of the Goods and/or Services;
(d) any interference with or prevention of the use of the Goods and/or Services;
(e) any non compliance of the Goods and/or Services with the applicable design brief and specifications; and
(f) any other breach of our obligations under these terms and conditions.
17.2 Liability cap: If notwithstanding the exclusion in clause 17.1, we are found to be liable to you in any circumstances then, to the extent permitted by law, you agree that the maximum amount for which we will be liable to you is an amount equal to the lesser of:
(a) the Price of the Goods and/or Services in question;
(b) the cost of replacement or repair of the Goods and/or Services in question; and
(c) the actual loss or damage you suffer.
18.1 Entire Agreement: You agree that:
(a) these terms and conditions constitute the entire understanding and agreement of the parties relating to the matters dealt within it;
(b) we have not made any representations to you; and
(c) these terms and conditions supersede and extinguish all prior agreements, statements, representations and understandings whether verbal or written given by or made between the parties relating to matters dealt within these terms and conditions.
18.2 Notices: Notices under these terms and conditions may be given in accordance with sections 185 to 189 of the PPSA. Any notice not required to be given in writing may be given verbally to you or to any other person present at your premises.
18.3 No waiver: No party will be deemed to have waived any right under these terms and conditions unless the waiver is in writing and signed by that party. A failure to exercise or a delay in exercising any right under these terms and conditions will not operate as a waiver of that right. Any such waiver will not constitute a waiver of any subsequent or continuing right or of any other provision in these terms and conditions.
18.4 Further Assurance: You agree that you will, at our request made at any time and at your cost in every respect, execute such additional or replacement security agreements or amendments to security agreements as we may reasonably require for the purpose of ensuring that we, at all times, have a perfected Security Interest with the same priority as these terms and conditions and whether in connection with PPSA or otherwise.
18.5 Amendments: No amendment to these terms and conditions will be effective unless it is in writing, signed and confirmed in writing by us. You acknowledge that we may from time to time amend these terms and conditions without prior notice to you. Any amendments will be notified to you by being published on our website and/or sent to you via email or newsletter. You agree that the amended terms will be effective upon publication on our website, or when sent to you by email or upon posting. An amendment of any provision of these terms and conditions will not prejudice or affect any other provision of these terms and conditions.
18.6 Severability: Any unlawful or voidable provision in these terms and conditions will be read down so as to be valid and enforceable or, if it cannot be read down, will be severed from these terms and conditions without effecting the validity, legality or enforceability of the remaining provisions, provided the reading down or severing does not materially affect the purpose of or frustrate these terms and conditions.
18.7 Assignment: You may not directly or indirectly assign your rights or benefits under any agreement between you and us to any other party without our consent but we may assign such agreements without your consent.
18.8 Survival: Each provision in these terms and conditions survives to the extent unfulfilled, and remains enforceable and does not merge, on performance of another provision.
18.9 Governing Law and jurisdiction: These terms and conditions are governed by New Zealand law and the parties irrevocably submit to the exclusive jurisdiction of the New Zealand courts in any proceedings relating to them.