ESSENCE COMMUNICATIONS LIMITED – GENERAL TERMS

The following are the terms on which Essence Communications Limited (we/us) will supply Services and deliver Work to you (Terms). By agreeing to any brief, estimate letter or other written document we give you or we agree to, you are deemed to have agreed the relevant Services and Work will be provided upon these Terms.

1. Definitions: The following terms have the meanings specified:

(a) Intellectual Property: the final Work and all our intellectual property in and associated with the Services and the final Work whatsoever and howsoever recorded or stored including:

  • (i) All creative content and artwork we develop or commission, whether exclusively for the Services or otherwise, including, without limitation all preliminary works, literacy work, initial concepts, designs, prototypes, models, graphic designs, illustrations, photography, animation, sounds, texts, sketches, visual representations, strap line, names, trade or service marks, logos and copyright; and
  • (ii) all materials belonging to another person, the use of which has been permitted by that person, and any modifications to those materials.

(b) Loss: any loss, cost, damage, expense (including legal costs and expenses incurred on a solicitor and client basis), claim or proceeding.

(c) Reverse Brief: Our interpretation of the work and services you require from us, including our outline of fees, timeframes and strategy for the Work.

(d) Services: the services required to complete any Work, including incidental services.

(e) Third Party Materials means any materials provided by any third party for use in the Services and Work.

(f) Work: the final product(s) we will deliver to you as detailed in any brief, estimate letter or other written document we provide or agree to.

(g) Your Content: all information you give to us including trade secrets, statistical information, market research, financial information, designs, logos and drawings.

2. Authorisation

(a) You agree that we have no obligation to inquire into the authority of any person placing order for or approving Services and/ or Work on your behalf. It is your risk and responsibility to obtain every necessary or prudent authorisation (including licences, permits and consents) in relation to the Services and Work we supply to you.

3. Quotes and Estimates

(a) These Terms apply to any quote or estimate we give you. Unless otherwise expressly recorded in writing, any pricing information we provide to you shall be deemed to be an estimate only and based on information supplied by you.

(b) You are solely responsible for the accuracy of any information upon which a quote or estimate is based.

(c) Any changes to the nature of the Services required subsequent to any quote or estimate provided by us or any inaccuracies or misstatements in the information provided to us, shall constitute a variation and shall be paid for at our current hourly rates.

(d) If we provide an estimate we are not bound to supply the Services or Work at the estimated price and you are liable for the actual price of any Services and/or Work as invoiced by us.

4. Payment:

(a) Unless we agree otherwise, our invoices by no later than the 20th of the month following the month to which the invoice relates.

(b) Our estimate of fees will be provided in our Reverse Brief. The figures contained in the Reverse Brief are estimates only and may not be the final fee contained in Our invoice to You.

(c) Payment of any amounts owed to us must be free of any counterclaim, set-off, deduction or any other claim whatsoever.

(d) If in our opinion your credit worthiness deteriorates before completion of the performance of our Services or supply of the Work we may require full or partial payment at any time or the provision of security in a form acceptable to us.

5. Warranties:

(a) Your Warranties: You warrant to us that you:

  • (i) own all rights, title, and interest in, or otherwise has full right and authority to permit the use of Your Content;
  • (ii) ¬†any material provided by you to us does not infringe the rights of any third party;
  • (iii) shall comply with all laws and regulations as they relate to the Services and Work.
  • (b) Our Warranties: We represent and warrant to you that to the best of Our knowledge and belief that:

  • (i) except for Third Party Materials and Your Content, our Work shall be the original work of us and/or our independent contractors; and
  • (ii) without having made any enquiries, the Work does not infringe the rights (Including intellectual property rights) of any other person.

(c) Limit on Our Warranties: Except for the express representations and warranties stated in these Terms, we make no warranties whatsoever and exclude any and all warranties implied by law.

6. Your Obligations:

(a) You shall be responsible for performing the following in a reasonable and timely manner:

  • (i) allocating at least one person in your organisation who we will deal with and ensuring that such person is authorised to provide responses and request variations;
  • (ii) respond to all our requests in a timely manner or by any date/time required by Us;
  • (iii) provide accurate and complete information and materials requested by Us such as, any layout and content requirements.

7. Reverse Brief:

(a) If we have agreed to provide you with a Reverse Brief, it is your responsibility to carefully check the Reverse Brief to make sure that we have correctly interpreted your requirements.

(b) If You determine that we have not accurately reflected your requirements our Reverse Brief, it is your responsibility to provide us with further details so that we can amend the brief to suit your requirements.

8. Your Content:

You will:

  • (i) provide all Your Content and assistance we require to perform the Services and create the Work within a reasonable timeframe, so we are able to deliver the Work on time.
  • (ii) proofread, review and inspect all drafts or samples we provide, and the final Work to ensure it is free of errors, is medically accurate in its representations and it is fit for Your intended use. We will not be liable for errors or inaccuracies in the final Work (including typographical errors, misspellings or misrepresentations).

(b) You are solely responsible for ensuring all proposed domain names, trademarks and trade names forming part of the final Works are available for use, are able to be registered and do not otherwise infringe or violate the rights of any person.

(c) You acknowledge and consent to us making use of any Your Content and providing examples of the Work on our website and/or Services, in addition to any other marketing material.

9. Intellectual Property and Confidentiality:

(a) Your Content: Your Content, including all pre-existing Trademarks, shall remain your sole property of You s, and You or Your suppliers shall be the sole owner of all rights in connection therewith. You hereby grant to Us a nonexclusive, non-transferable royalty free license to use, reproduce, modify, display and publish Your Content solely in connection with Our performance of the Services.

(b) Work: At the time when all payments under the Agreement have been made in full, the copyright in any final Work created or commissioned by us specifically for the purpose of delivering the Services are deemed to be assigned by us to You. Until such time ownership and rights to the final Work are assigned to You those rights will remain owned by us.

(c) Our Intellectual Property: Except for Your Content and final Work, all intellectual property which is created, developed, licenced to or used by us in the Work or performance of the Services is our sole and exclusive property of Us and You shall have no rights to that property.

(d) Third Party Materials: Third Party Materials are the exclusive property of their respective owners. We shall:

  • (i) identify to You any Third Party Materials that may be required to perform the Services or otherwise integrated into the Work; and
  • (ii) whether any licence is required for the Third Party Materials; and
  • (iii) at your expense, and unless otherwise provided for by you, we shall obtain the license(s) necessary to permit your use of the Third Party Materials consistent with the usage rights granted herein.

10. Suspension and Termination

(a)  Suspension: If You do not comply with any of your obligations under this Agreement, including paying any amount when that is due, we may by written notice immediately suspend performance of our obligations under this Agreement until such time as We are of the opinion that You have satisfactorily performed all of Your obligations.

(b) Our Right to Terminate: We may immediately terminate this Agreement by written notice to you if any invoice issued is not paid when due, and for the avoidance of doubt any additional time we allow you to pay shall not prejudice our right to terminate under this clause at any time.

(c) Your Right to Terminate: You may immediately terminate any Defined Project at any time by written notice to us.

(d) Either Party Termination: This Agreement may be terminated immediately upon written notice by any party if the other party:

  • (i) either party becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
  • (ii) either party breaches any of its material responsibilities or obligations under these Terms, which breach is not remedied within ten (10) days from receipt of written notice of such breach if the material breach is capable of remedy.
  • (e) Consequences of Termination: On the termination of this Agreement, you must pay for:

  • (i) All Services and Work we have performed and completed up to the date of Termination; and
  • (ii) All third-party costs and commitments that are not able to be cancelled.
  • We reserve the right to retain any work in progress, any Work and any materials you have provided to us until payment of the above amounts are received in full.

(f) Any deposits and other amounts paid by you are non-refundable and to the extent that any amount received by us does not relate to Services provided the parties agree that amount is a reasonable pre estimate of the loss suffered by Us and is compensation to cover lost production space;

(g) Nothing shall affect any rights accrued or obligations owing as at the date of termination or expiry.

11. Liability and Indemnity:

(a) You acknowledge and agree we are providing the Services and the Works in trade and that the Consumer Guarantees Act 1993 and sections 9, 12A, 13 and 14(i) of the Fair Trading Act 1986 will not apply. Any other warranties or conditions whether express or implied by law or otherwise do not apply and are also excluded to the maximum extent permitted by law.

(b) If we are found liable in any way, our liability to you is limited to direct damages not exceeding the estimated value of that aspect of the Services or Work to which the damage relates. We are not liable for any indirect or consequential loss or damage of any kind including any financial loss or loss of profit.

(c) You irrevocably indemnify and hold us harmless from and against all Loss we suffer or incur caused by:

  • (i) Your Content or the Work you have requested (or any part) infringing or violating the rights of another third party; or
  • (ii) any breach of these Terms (including a failure to obtain any required consents or authorisations), any law or any warranty; or
  • (iii) any statement made, or any other act, omission or negligence committed, by you or your agents, officers, contractors, or employees.

(d) You agree that you will not issue any proceedings (other than for urgent interlocutory relief) or take any other action in relation to any Services or Work until you have first met with us in good faith to discuss the issues underlying such proceedings or action.

12. Privacy Act 2020

You agree that any information about you provided to us may be used by us at any time for any purposes connected with our business including but not limited to direct marketing, debt collection and credit reporting or assessment. You authorise us to provide such information to any external agency or any party for credit information and assessment purposes and that agency or party are hereby authorised to use and continue to use such information as part of their business services. Any personal information is held at Essence Communications Limited, 28 Customs Street East, Auckland and you have certain rights of access to your personal information under the Privacy Act 2020.

13. Confidentiality

(a) You agree to keep these Terms and any pricing information, proposals, briefs and Reverse Briefs strictly confidential.

(b) We agree to keep Your Content and the terms and conditions of our agreement with your confidential.

14. General:

(a) Amendments to these Terms must be in writing and signed by us.

(b) You will pay all our costs and expenses (including legal costs and expenses incurred on a solicitor) incurred in the enforcement of our rights or remedies under these Terms.

(c) Any provision of these terms that is held to be invalid or unenforceable for any reason shall be severed from and shall not affect the remaining provisions of these terms.

(d) We may assign our rights under these Terms but you may not without our prior written consent. You acknowledge that we may use contractors to assist us with providing the Services and the Work.

(e) You agree that we may issue any proceedings in respect of these terms in any court that suits us. The law that governs these terms is New Zealand law.

(f) We may in our sole discretion vary these terms of trade from time to time by notice to you.

(g) You agree that we may issue any proceedings in respect of these terms in any court that suits us. The law that governs these terms is New Zealand law.

(h) We may in our sole discretion vary these terms of trade from time to time by notice to you.