- 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.
- Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
- Copyrights mean the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under NZ Law.
- Deliverables mean the services and work products specified by Beta Studios to be delivered to the Client, in the form and media specified by Beta Studios.
- Designer Tools means all design tools developed and/or utilised by Beta Studios 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.
- Final Art means all creative content developed or created by Beta Studios, or commissioned by Beta Studios, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Beta Studios’ selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
- Final Deliverables means the final versions of Deliverables provided by Beta Studios and accepted by the Client.
- Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Beta Studios and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
- Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
- Services mean all services and the work product to be provided to Client by Beta Studios as described and otherwise further defined by Beta Studios.
- Third-Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
- Trademarks mean 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 the Client.
The terms of any Proposal/Estimate/Quote created by Beta Studios shall be effective for 20 days after presentation to Client. In the event the Proposal/Estimate/Quote is not executed by the Client within the time identified, the Proposal/Estimate/Quote, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
Fees and Charges
- Fees. In consideration of the Services to be performed by Beta Studios, the Client shall pay to Beta Studios 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. Where no price is stated in writing or agreed requested work will be undertaken at the standard hourly rate set forth by Beta Studios. The price may be increased by the amount of any reasonable increase in the cost of supply of the Goods that is beyond the control of Beta Studios between the date of the contract and delivery of the Goods.
- Expenses. Beta Studios do not charge the client for general office expenses such as phone calls, internal printing etc however any expenses that are deemed out of the ordinary and requested by the client will be billed in addition to the normal proposal (e.g. non-local travel costs)
- Additional Costs. The Project pricing includes Beta Studios’ 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, talent fees, music licenses, stock photography or illustrations and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
- Invoices. All invoices are payable by the date set forth on the invoice, this will be no less than 10 working days. A monthly late payment charge of 5% (minimum $25) is payable on all overdue balances each month that the payment is late. Payments will be credited first to late payment charges and next to the unpaid balance. The client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Beta Studios 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.
- 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 Beta Studios’ standard hourly rate. 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. Beta Studios may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
- Timing. Beta Studios will prioritise 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 Beta Studios. Beta Studios shall be entitled to request written clarification of any concern, objection or correction. The client acknowledges and agrees that Beta Studios’ 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 Beta Studios’ obligations under this Agreement.
The client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
- coordination of any decision-making with parties other than the Beta Studios;
- 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; and
- 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.
- on-time payment of all accounts
Beta Studios retains the right to reproduce, publish and display the Deliverables in Beta Studios’ portfolios, social media, websites, and other media 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.
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.
Relationship of the Parties
- Beta Studios is an independent business, and shall provide the Services under the general direction of Client, but Beta Studios shall determine, in Beta Studios’ 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 authorised to act as agent or bind the other party except as expressly stated in this Agreement. Beta Studios and the work product or Deliverables prepared by Beta Studios shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to the 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.
- Beta Studios Agents. Beta Studios shall be permitted to engage and/or use third party designers, developers or other service providers as independent contractors in connection with the Services. Notwithstanding, Beta Studios shall remain fully responsible for such third parties’ compliance with the various terms and conditions of this Agreement.
- No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. The client is free to engage others to perform services of the same or similar nature to those provided by Beta Studios, and Beta Studios shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Beta Studios.
Warranties and Representations
- By Client. Client represents, warrants and covenants to Beta Studios 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 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.
- By Beta Studios
(a) Beta Studios hereby represents, warrants and covenants to Client that Beta Studios 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) Beta Studios 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 Beta Studios and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Beta Studios, Beta Studios shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Beta Studios to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Beta Studios’ knowledge, the Final Art provided by Beta Studios and Beta Studios’ 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 Beta Studios shall be void.
(c) Except for the express representations and warranties stated in this agreement, Beta Studios makes no warranties whatsoever, Beta Studios 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.
- The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Beta Studios which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Beta Studios, Beta Studios’ liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
- Except as otherwise provided by clause 10.1 Beta Studios shall not be liable for:
2.1 Any loss or damage of any kind whatsoever, arising from the supply of Goods by Beta Studios to the Customer, including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods provided by Beta Studios to the Customer; and
2.2 The Customer shall indemnify Beta Studios against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of Beta Studios or otherwise, brought by any person in connection with any matter, act, omission, or error by Beta Studios its agents or employees in connection with the Goods.
Term and Termination
- This Agreement shall commence upon the Effective Date and shall remain effective until cancelled by either party.
- This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or 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 10 days from receipt of written notice of such breach.
- In the event of termination, Beta Studios 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 Beta Studios or Beta Studios’ 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 by Client and upon full payment of compensation as provided herein, Beta Studios 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.
- 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.
- Force Majeure. Beta Studios shall not be deemed in breach of this Agreement if Beta Studios is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God or public enemy, death, illness or incapacity of Beta Studios or any local, national or international law, governmental order or regulation or any other event beyond Beta Studios’ control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Beta Studios 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.
- 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 a 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 attorneys’ fees and costs. The parties hereby waive any jurisdictional or venue defences available to them and further consent to service of process by mail. The client acknowledges that Beta Studios will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Beta Studios 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.
- 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.
- 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.
- 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.
- Consumer Guarantees Act The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Goods from Beta Studios for the purposes of a business in terms of sections 2 and 43 of that Act.
By their execution, the parties hereto have agreed to all of the terms and conditions of this Agreement.
Schedule A: Intellectual Property Provisions
Rights to Deliverables other than Final Art
- Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of the client or its respective suppliers, and the client or its suppliers shall be the sole owner of all rights in connection therewith. The client hereby grants to Beta Studios a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Beta Studios’ performance of the Services and limited promotional uses of the Deliverables as authorised in this Agreement.
- Third-Party Materials. All Third Party Materials are the exclusive property of their respective owners. Beta Studios shall inform the client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances, Beta Studios shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Beta Studios 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 Art.
- Preliminary Works. Beta Studios retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Beta Studios within 30 days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Beta Studios.
- Original Artwork. Beta Studios retains all rights and titles in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. The client shall return all original artwork to Beta Studios within 30 days of completion of the Services.
- Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Beta Studios assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Beta Studios for use by Client as a Trademark. Beta Studios shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. The client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Beta Studios from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
RIGHTS TO FINAL ART
Upon completion of the Services, and expressly subject to full payment of all fees, costs and expenses due, Beta Studios hereby assigns to the client all rights, title and interest, including without limitation copyright and other intellectual property rights, in and to the Final Art. Beta Studios agrees to reasonably cooperate with the client and shall execute any additional documents reasonably necessary to evidence such assignment.
Supplement 1: Print-specific Terms and Conditions
- Samples. Client shall provide Beta Studios with at least 1 of each printed or published form of the Final Deliverables, for use in Beta Studios’ portfolio and other self-promotional uses. Such samples shall be representative of the highest quality of the work produced.
- Finished Work. The printed work, and the arrangement or brokering of the print services by Beta Studios, shall be deemed in compliance with this Agreement if the final printed product is within the acceptable variations as to kind, quantity, and price in accordance with current or standard trade practices identified by the supplier of the print and print-related services. Whenever commercially reasonable and if available, Beta Studios shall provide copies of the current or standard trade practices to the Client. Notwithstanding, Beta Studios shall have no responsibility or obligation to negotiate changes or amendments to the current or standard trade practices.
- Print Quality. When the print services are brokered by Beta Studios and delay, defects or errors produced by the third-party print service are the responsibility of the printer to rectify. Any defects or errors must be communicated to Beta Studios in writing within 7 days of delivery. Beta Studios agrees to arbitrate on behalf of the client with the printer.
Supplement 2: Interactive-specific Terms and Conditions
- SUPPORT SERVICES (HOSTING AND DATA)
- Hosting. All hosting is provided by third part providers. All providers offer back-up systems and server protection in-line with expected industry standards. Beta Studios will not be liable for any loss or disruption of data while hosted with third parties. This includes but is not limited to data loss from email / website hosting system failures or outages, viruses, malicious hacking, actual or perceived loss due to downtime of servers or systems. Beta Studios makes no up-time guarantees.
- Data Security. While Beta Studios takes all reasonable precautions and practices no guarantees are made that any company data, whether on an internal or external server or sent or received via electronic transfer or email is secure from malicious use.
- COMPLIANCE WITH LAWS
Beta Studios shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software and technology.
Supplement 3: Environmental-specific Terms and Conditions
- PHOTOGRAPHS OF THE PROJECT
Beta Studios shall have the right to document, photograph or otherwise record all completed designs or installations of the Project, and to reproduce, publish and display such documentation, photographs or records for Beta Studios’ promotional purposes in accordance with Section 6 of the Basic Terms and Conditions of this Agreement.
- ADDITIONAL CLIENT RESPONSIBILITIES
Client acknowledges that Client shall be responsible for performing the following in a reasonable and timely manner:
(a) Communication of administrative or operational decisions if they affect the design or production of Deliverables, and coordination of required public approvals and meetings;
(b) Provision of accurate and complete information and materials requested by Beta Studios such as, by way of example, content, branding, guidelines, colour guidelines and other inclusions in the finished art.
(c) Final proofreading and approval of all project documents including, by way of example, not limitation, artwork, message schedules and design drawings before their release for printing or development. In the event that Client has approved work containing errors or omissions, such as, by way of example, not limitation, typographic errors or misspellings, Client shall incur the cost of correcting such errors;
(e) Bid solicitation and contract negotiation; sourcing, establishment of final pricing and contract terms directly with fabricators or vendors.