Terms and Conditions

These Terms of Trade shall be read in conjunction with the Letter of Engagement to be entered between Unique Designs and its clients.

1. INTRODUCTION

Unique Designs (2003) Limited ("Consultant") provides website designing, graphic designing, website development and web hosting services.

By requesting the Consultant to supply the Services (as defined herein) to the Client, the Client acknowledges and agrees (or is deemed to acknowledge and agree) that:

1.1.

These Terms will apply to the supply of Services by the Consultant to the Client and, where applicable, the provision of any incidental services.

1.2.

These Terms shall be read subject to the terms and conditions contained in the attached Letter of Engagement.

1.3.

The Letter of Engagement and these Terms constitute the entire agreement between the parties and supersede all prior negotiations, proposals and agreements whether oral or written with respect to the subject matter.

2. INTERPRETATION

2.1.

In these Terms:

"Agreement" means the Letter of Engagement and these Terms of Trade;

"Consultant" means Unique Designs (2003) Limited trading as Unique Designs;

"Client" means the person(s) described or referred to on the Letter of Engagement which these Terms of Trade form part, or (if applicable) the person(s) identified as such on any document which incorporates these Terms of Trade;

"Fee" or "Fees" means the cost of Services agreed between the Consultant and the Client for the Services, subject to any variation in accordance with these Terms and, unless specifically agreed otherwise in writing, is expressed exclusive of GST and any other applicable taxes and duties.

"Intellectual Property" means all statutory, common law and other proprietary right, and any interest in any copyright, designs, drawings, plans, specifications, trade mark, trade name, inventions, know how, procedures and other technical information (whether protectable by registration or not) and including, where any such rights are obtained or enhanced by registrations, any registration of such rights.

"Services" means the services of website designing/ graphic designing, website development/ web hosting described in the attached Letter of Engagement provided by the Consultant to the Client;

"Terms" means these Terms of Trade.

3. PROVISION OF SERVICE

3.1.

The Consultant will perform the Services exercising a reasonable degree of skill, care and diligence expected of a competent professional.

3.2.

The Client is to provide the Consultant with all necessary information (including budget and timetable if applicable) to enable the Consultant to clearly understand the Client's requirements in order for the Consultant to provide the Services. Any information provided by the Client to the Consultant is to comply with the Copyright Act 1994. The Client warrants that the information may be used and indemnifies the Consultant against any action by any person claiming ownership or copyright in respect of any such information.

3.3.

The Consultant will endeavour to complete the work within the time specified in the agreed timetable. However the Consultant cannot take responsibility for the work undertaken by other designers or subcontractors involved.

4. VARIATIONS

4.1.

Any requested variation to the Services outlined in the attached Letter of Engagement must be notified in writing by the Client. Upon approval of such variation(s) by the Consultant, the variations will constitute an amendment to this Agreement, The Client agrees that any variations may result in additional costs and the Client shall be responsible for any additional costs resulting from such variations.

5. ASSIGNMENT OF WORK

5.1.

The Consultant reserves the right to assign other designers or subcontractors to undertake the Services to ensure quality and on-time completion.

6. CONFIDENTIALITY

6.1.

The Client and Consultant may disclose confidential information one to the other to facilitate work under this Agreement. Such information shall be so identified in writing at the time of its transmittal and shall be safeguarded and not disclosed to third parties by the receiving party. Confidential information shall not include information that:

 

6.1.1.

Is already known to the party to which it is disclosed;

 

6.1.2.

Is or becomes part of the public domain without breach of this Agreement;

 

6.1.3.

Is obtained from third parties, which have no obligations to keep confidential to the parties to this Agreement.

7. FEE AND PAYMENT

7.1.

The Client shall pay the Fee to the Consultant for the Services as detailed in the attached Letter of Engagement.

7.2.

The Consultant shall issue an invoice to the Client for the Services on a monthly basis at the end of each calendar month or upon completion of Services based upon the agreed Fee. Payment for such invoices must be made by the Client to the Consultant within 1 moth following the date of the relevant invoice(s).

7.3.

If payment of any invoice(s) is overdue for more than 3 months the Consultant may, at its discretion, cancel this Agreement with the Client and discontinue from providing any further Services until the Client has discharged all outstanding indebtedness to the Consultant.

7.4.

The Consultant reserves the right to charge the Client interest on all outstanding invoices which are 3 months overdue at the rate of 10% per month on the overdue amount from the due date until all moneys including default interest have been paid in full, and for any collection costs relating to such outstanding invoices.

7.5.

No credit shall be extended on overdue accounts, except by prior written agreement with Consultant.

7.6.

Payment of all moneys shall be made without set-off or deduction of any kind.

8. DISBURSEMENTS

8.1.

In addition to the Fee, the Consultant reserves the right to pass on other costs or out of pocket expenses incurred by the Consultant in providing the Services.

9. INTELLECTUAL PROPERTY/COPYRIGHT

9.1.

Copyright and Intellectual Property in all designs, drawings, plans, specifications and other technical information developed by the Consultant in the provision of the Services shall be vested in the Consultant. The Client shall have no right to use any of these designs, drawings, plans, specifications or other technical information where any or all of the Fees (and disbursements) payable to the Consultant have not been paid in full.

9.2.

Upon completion of Services, copyright will only be released to the Client upon the Consultant's signing of a release of copyright.

9.3.

The Client will acquire ownership of copyright upon payment of all sums due to the Consultant in full.

9.4.

The Consultant is entitled to retain copies of all designs, drawings, plans, specifications and other technical information or documentation for its own purposes. The Consultant shall also be entitled to destroy the same at any time.

10. PUBLICATION

10.1.

The Client may publish or disclose information regarding the Services and shall acknowledge the support of Consultant in all such publications. The Client will not use the name of the Consultant, in any advertising or publicity without the prior written consent from the Consultant. The Consultant will not use the name of the Client, in any advertising or publicity without the prior written consent from the Client.

11. INDEMNITY

11.1.

The Client shall fully indemnify and keep indemnified and hold Consultant harmless from and against all claims, demands, actions, liabilities, costs (including legal costs) and damages (excluding consequential losses) which may be made, determined or agreed against Consultant arising out of or in relation to a breach or alleged breach of any clause in these Terms by the Client or any act or omission of the Client relating in any way to these Terms or the subject matter of these Terms.

12. LIMITATION OF LIABILITY

12.1.

In no event shall Consultant be liable (whether in contract, tort including negligence or otherwise) for any direct, indirect, incidental, special, or consequential damages or damages for loss of profits, revenue, data or use incurred by the Client arising out of the Client's misuse of any of the Services or any materials developed as part of the Services. In the event that this clause does not apply to a particular claim, Consultant's maximum cumulative liability to the Client shall in no event exceed the amount paid by the Client for Consultant's Services.

13. FORCE MAJEURE

13.1.

The Consultant shall not be liable for any failure or delay in delivering the Services resulting from circumstances beyond its reasonable control, including, without limitation: default by third parties; strikes and labour unrest; war; acts of terrorism; government or regulatory intervention; fire; flood; accident; epidemics or pandemics; natural disaster; or any other event interpreted under New Zealand law as an "Act of God". If Consultant invokes force majeure, it shall do all reasonable things within its power to end the circumstances causing the force majeure and to mitigate any losses that the Client may suffer as a consequence thereof. However, Consultant shall not be liable for any such losses.

14. TERMINATION

14.1.

This Agreement will continue until the Services have been performed by the Consultant. However, either may terminate this agreement by giving 30 days written notice to the other of its intention to terminate.

14.2.

Upon termination, any part of the Consultant's Fee for work completed up to the date of termination together with any other monies owing shall forthwith become due and payable. Any such termination shall be without prejudice to any claim or right the Consultant may otherwise possess. The Consultant will not be liable for any damage or loss arising directly or indirectly in connection with the Services being terminated as a result of the Client's default.

15. DISPUTE RESOLUTION

15.1.

Should a dispute arise in relation to the Agreement the Consultant and the Client must notify the other party in writing, detailing the problems. An attempt in good faith to resolve the issues must be made by both parties. Should a resolution not be achieved, the matter shall be referred to mediation. A notice requiring mediation must be issued in writing by either party within 30 working days of the notification of the dispute.

15.2.

The Consultant and the Client shall endeavour to agree on a mediator. Each party shall be responsible for its own costs in the mediation and share the costs of the mediator. The mediator's decision shall be binding, unless either party notifies the other within 10 working days that they reject the mediator's decision. If mediation has not settles the dispute, the matter shall be submitted to the arbitration of an arbitrator who shall conduct the proceedings in accordance with the Arbitration Act 1996. The Arbitrators decision is binding.

16. SEVERABILITY

16.1.

If any part of this Agreement (including these Terms) is held by any court to be illegal, void or unenforceable, such determination shall not impair the enforceability of the remaining parts of this Agreement.

17. COMPANIES, TRUSTS AND JOINT CLIENTS

17.1.

Instructions received from the Client as a director or shareholder of a limited liability company or as a settlor or trustee of a trust (or any other non-personal entity) are accepted on the basis that the director, shareholder, settlor or trustee is at all times personally responsible as principal debtor for payment of the fee and disbursements and the Client personally indemnifies the Consultant for the payment of fees rendered to these entities.

18. PARTNERSHIP AND AGENCY

18.1.

Nothing in the relationship between Consultant and the Client nor any agreements between the parties shall create or constitute or be deemed to create or constitute a partnership or a joint venture nor constitute the appointment of any party as the agent of any other part.

19. GOVERNING LAW

19.1.

These Terms shall be governed by the laws of New Zealand and the parties agree to submit to the exclusive jurisdiction of New Zealand Courts.

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