Terms of Trade
1. Application: These Standard Terms of Engagement (“Terms”) apply in respect of all work carried out by us for you, except to the extent that we otherwise agree with you in writing.
2.1 Monthly Fees:
2.1.1 You agree to pay us a monthly fee which covers all costs, excluding those costs contained within the expenses invoice and the cash outlay fee invoice, as outlined below. This fee is representative of the time taken during the creation and production processes. These processes include, but are not limited to, design work, copywriting, research and creative services. Time taken for these processes shall be charged out at $140 per hour + GST and be billed in six-minute blocks, to the nearest sixth minute. Any other service we provide to you, such as, but not limited to, strategy meetings and systems development, shall be charged at $170 per hour + GST and be billed in six-minute blocks, to the nearest sixth minute.
2.1.2 Work that falls outside the initially agreed scope will be charged at $170 per hour + GST. We will advise you as soon as reasonably practicable if it becomes necessary for us to provide services outside the agreed scope and, if requested, will give you an estimate of the likely amount of the further costs.
2.1.3 Any difference in rates to those outlined above reflects the experience and specialization of our professional staff. These differences shall be communicated and agreed upon before work commences.
2.2 Expenses: In providing services we may incur disbursements or have to make payments to third parties on your behalf. These will be included in our invoice to you when the expense is incurred + a 15% administration fee.
2.3 Cash Outlays: You agree to pay a cash outlay fee. This is a fee representative of any cash spent by us, in order for us to carry out a service that has been requested by us from you. This includes, but is not limited to, travel costs. An invoice for this fee shall be sent as incurred and is payable within 10 days after receipt.
2.4 GST (if any): Is payable by you on our fees. All quoted or estimated rates exclude GST unless stated otherwise.
2.5 Invoices: We will send you an invoice at the completion of work done, or throughout the production process as necessary. We may also send you a deposit or interim invoice, usually prior to work beginning, monthly or at specified periods, or if we incur a significant expense.
2.6 Payment: Invoices, except for those outlined in clause 2.3, are payable within 20 days of the date of the invoice, unless alternative arrangements have been made. We may require interest to be paid on any amount which is more than seven days overdue. Any costs incurred in recovery outstanding invoices will be passed on to you. Unpaid amounts overdue in excess of 90 calendar days from the date the invoice was issued mat be referred for collection via a debt recovery agency at our discretion.
2.7 Security: We may ask you to pre-pay amounts to us, or to provide security for our fees and expenses. You authorize us:
2.7.1 To debit against amounts pre-paid by you; and
2.7.2 To deduct from any funds held on your behalf in our trust account, any fees, expenses or disbursements for which we have provided an invoice.
2.8 Third Parties:
Although you may expect to be reimbursed by a third party for our fees and expenses, and although our invoices may at your request or with your approval be directed to a third party, nevertheless you remain responsible for payment to us if the third party fails to pay us.
3.1 A quotation from contractor is without obligation for client, unless expressly stated otherwise in writing in the quotation.
3.2 A quotation is valid for thirty days from the date of the quotation, unless stated otherwise in the quotation.
3.3 Contractor is bound to the content of a quotation if client agrees in writing to the full quotation within fourteen days of the date of the quotation. If this written agreement takes place after the period of fourteen days, contractor has the right to depart from the quotation.
3.4 Client acknowledges that the quotation states correctly and in full the work that is to be carried out by contractor for client and what client can expect, unless this is departed from in writing in the contract.
4 Contract and termination
4.1 A quotation confirmed in writing by client for agreement is laid down in a contract.
4.2 A contract only becomes effective when signed by both parties.
4.3 A contract is concluded for an indefinite period unless otherwise expressly agreed by parties in writing in the contract. The contract for an indefinite period states the actual commencement date of the work.
4.4 If a contract is concluded for a definite period, parties agree on an actual commencement date and completion date for the work. Note that time estimates provided in documents such as (but not limited to) a website ‘wire-frame’ are indicative only as project guidelines. They do not constitute identification as contracted completion dates.
4.5 A contract for an indefinite period is terminable by either party. Termination of a contract for an indefinite period takes place by writing and in accordance with a term of notice of one calendar month. In accordance with this term of notice, the contract ends one calendar month after the date of registration of the termination.
4.6 A contract for a definite period is not prematurely terminable.
4.7 Either party can terminate the contract in writing, in whole or in part, with immediate effect and without notice of default, if the other party is granted a moratorium (temporary or otherwise), if a petition for bankruptcy is filed against the other party or if the business of the other party is liquidated or ended otherwise than for the purpose of reconstruction or merger of businesses. Contractor is not liable, on account of this termination, to any restitution of payment already received, nor to any payment of compensation. In the case of bankruptcy of contractor, the right to use the software provided to client lapses by law.
5.1 We will hold in confidence information concerning you or your affairs that we acquire during the course of acting for you. We will not disclose any of this information to any other person in accordance with the New Zealand Privacy Act 1993 except:
5.1.1 To the extent necessary or desirable to enable us to carry out your instructions; or
5.1.2 To the extent necessary under New Zealand law
5.2 Confidential information concerning you will as far as practicable be made available only to those within our firm.
5.3 We will not disclose to you confidential information which we have in relation to any other client.
5.4 In the event where there is a potential conflict of interests between two past clients, the firm shall erect an information barrier to prevent a breach of confidentiality.
6 Professional indemnity insurance & fidelity fund
6.1 We hold professional indemnity insurance that meets or exceeds standards.
7 Limitations on extent of our obligations or liability
7.1 Any limitations on the extent of our obligations to you or any limitation or exclusion of liability are set out above.
8.1 We maintain a procedure for handling any complaints by clients, designed to ensure that a complaint is dealt with promptly and fairly. If you have a complaint about our services or charges, you may refer your complaint to the person in our company who has overall responsibility for your work, or any other employee who holds a more senior position on the company.
9.1 These Terms of Trade apply to any current engagement and also to any future engagement, whether or not we send you another copy of them. We are entitled to change these Terms of Trade from time to time.
9.2 We value an ongoing relationship with you. These Terms of Trade are the core basis of our relationship and our commitment to you to attend to your affairs diligently and with efficient, effective and professional service.
9.3 Clients should be aware that due to a variety of factors there will often be variance in colours shown between in-house proofs, colours on screen, printer’s proofs, and final printed items. These factors are determined by the source of the print or visual (each output source e.g the agency printer, the client’s printer, the image setter, the monitor etc will differ from the other), the types of inks or make-up of colours (even Pantone colours can vary significantly and often surprisingly depending on what stock or substrate they are printed on), the type of print process (short-run digital, longer-run litho printing), the substrate (paper, card, plastic etc) used, individual preferences (ambient light, personal computer settings etc) and several other reasons. As a result of this the agency is unable to guarantee 100% consistency and accuracy of colour on all items and may not always be able to achieve the exact result expected by the client. In the case of printed items, the only true guide as to what is likely to be produced, is to request a ‘proof’ on the actual intended substrate with the actual inks to be used, although this will incur additional cost. However as long as the client accepts there may be inconsistencies across work produced, this step may not be necessary. Madison & Macallan does not accept any responsibility for colour variations as a result of these indeterminate factors.
9.4 Madison & Macallan will never knowingly infringe any copyright or trademark and will deliver, to the best of knowledge, creative solutions that are original and unique to the agency. Unless otherwise agreed in writing, it is the responsibility of the client to ensure that no copyright or trademark has been infringed and to make their own application for copyright or trademark with the respective New Zealand or Australian Intellectual Property Offices if required.
9.5 These Terms of Trade may be altered at any time without prior notice to our clients.
9.6 All creative work produced and devised during a project(s), creative, digital, software files and related correspondence remain the property – physically, intellectually and in copyright, of Madison & Macallan until full payment has been made on the Client’s account, and all project costs have been cleared.
9.7 Once final proofs/materials have been signed off, Madison & Macallan cannot be held responsible financially or otherwise for any errors relating to print, programming or any end product.
10.1 Madison & Macallan is not responsible for any written or visual content uploaded by you the client to any online, audio or physical platform that we have access to, or have created. This includes any material that would be deemed to require any form of censorship in line with general public standards and New Zealand law. This includes adult, erotic, racial or culturally offensive material.
10.2 Madison & Macallan may advise, to the best of our knowledge, what type, style or messaging could be included in any advertising or marketing material engaged by you the client. However, ultimate responsibility for approval/sign off on this content and it being released into the public domain rests with you the client – at all times.
10.3 Madison & Macallan will always seek approval from you the client regarding written or graphic/image based content/material, prior to releasing any of this content into the public domain.
10.4 Madison & Macallan reserves the right at any stage to refuse to upload or release content if we do not feel it is appropriate in respect of general public standards and New Zealand law. Madison & Macallan will notify you the client in writing if we feel that your content is inappropriate. Refusal to upload any inappropriate content will not affect the completion of the rest of the agreed work, and will not affect the final remuneration settlement amounts; i.e. no refunds will be available within the agreed work for and refusal of inappropriate content.
11 Force Majeure
11.1 A party will not be liable for any delay or failure to perform its obligations under an Order or these Standard Terms if such delay is due to Force Majeure.
11.2 If a delay or failure of a party to perform its obligations is caused by Force Majeure, the performance of that party’s obligations will be suspended. The party unable to fulfil its obligations due to Force Majeure shall immediately:
11.2.1 notify the other party in writing of the reasons for its failure to fulfil its obligations and the effect of such failure; and
11.2.2 use all reasonable endeavours to avoid or remove the cause and perform its obligations as soon as possible.
11.3 Performance of any obligation affected by Force Majeure must be resumed as soon as reasonably possible after the termination or abatement of the Force Majeure.
11.4 If by reason of Force Majeure a party is unable to perform any obligation under an Order or these Standard Terms and if the failure to perform the obligation continues for 10 working days, the other party may terminate that part or the whole of an Order or these Standard Terms affected by the Force Majeure.