Geoff & Roselyn Cloake - Fine Art, Graphic Design & Photography
Prepared by TIMPANY WALTON of TIMARU
A Printable version is available here
“Designer ” shall mean the Fine Art, Graphic Design and Photography business operated by Geoff Cloake and Roselyn Cloake, their employees or agents.
“Client” shall mean the client, or any person acting on behalf of and with the authority of the Client, or any person purchasing Work from the Designer.
“Work” shall mean all creations of designs, artwork, photographs, literary or other artistic work by the Designer, and any products, goods, services, materials and advice provided by the Designer to the Client in relation to the Work.
“Fee” shall mean the cost of the Work as agreed between the Designer and the Client subject to clause 5 of this Agreement.
“Terms and Conditions” shall mean these terms and conditions together with any other specific terms and conditions that may be agreed to in writing by the Designer and the Client.
The Designer shall not be bound to provide any Work until the Designer confirms its agreement to do so by commencing performing the work contemplated by this Agreement. Once the Designer agrees to provide the Work the Designer will:
Provide the Work in accordance with these Terms and Conditions, including providing the Work specified in any job sheet or quote that the Designer has provided to the Client; andLiaise with the Client in the course of performing the Work to assist in meeting the Client’s requirements.Notwithstanding clause 2.1, the Designer may by written notice to the Client alter or replace these Terms and Conditions. All Work performed subsequently for the Client shall be upon the altered or replaced terms and conditions, unless agreed otherwise in writing.
The Designer will:
The Client will give all reasonable assistance to enable the Designer to perform the Work by:
The Designer will invoice the Client for the Fee, being the fee specified in any job sheet or quote that the Designer has agreed with the Client, together with any other fees that the Designer may reasonably charge to the extent that:
Where a quotation is given by the Designer for Work:
Where Work is required in addition to the quotation the Client agrees to pay for the additional cost of such work.
The Designer may require the Client to pay a deposit before commencing the Work.
The Designer may invoice the Client (at its discretion) on completion of the Work, or on a monthly basis, or at other intervals, as the Work progresses.
Payment for the Work shall be made in full on or before the 20th day of the month following the date of the invoice (“the due date”); or
Receipt of a cheque, bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.
If the Client does not pay any amounts payable to the Designer when due the Client will be in default and the Designer may, without limiting any other rights or remedies:
The Designer may also, without liability to the Client, cancel this Agreement at any time upon notice to the Client if the Client:
Subject to clause 11 below, the Designer is and will remain the exclusive owner everywhere in the world of all intellectual property rights and interests (including copyright and all other statutory and common law rights and interests) in the Work, and any other work performed by the Designer for the Client, as first owner of those intellectual property rights and interests.
The Designer shall retain exclusive worldwide ownership at all times of its artistic styles, methods of working, techniques, general creative ideas and skills.
The Designer’s staff assert their right to be identified as the author(s) of all Work created by them for the Client and the Designer’s staff do not waive any of their moral rights in any Work created for the Client, and without limitation the Client must:
Upon payment of all Fees to the Designer in accordance with the Terms and Conditions of this Agreement, the Designer assigns to the Client the copyright in the final form of any Work which the Designer has specifically created for the Client for the countries and for the purposes as specified in the quote or instructions, or if not specified, for the counties and for the purposes which would be reasonably expected by in light of the nature of the Client’s request for the Work.
The Client agrees that the Designer may use the Work and the Client’s name and identity as part of its portfolio of works for the purposes of promoting and advertising the Designer’s business.
The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may impose warranties, conditions or obligations upon the Designer which cannot by law (or which can only to a limited extent by law) be excluded. Other than as expressly provided for in these Terms and Conditions, the Designer excludes all such imposed warranties, conditions or obligations to the extent permitted by law.
Except for as expressly provided for in these Terms and Conditions, the Designer excludes any warranty, condition or obligation imposed or implied under common law, equity or otherwise.
Except as expressly otherwise provided by clause 13.1, or 13.2, the Designer shall not be liable for:
The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Client acquires Work from the Designer for the purposes of a business in terms of section 2 and 43 of that Act.
The Client confirms that by providing the Work in accordance with the Client’s brief or instructions, the Designer will not infringe the rights of any third party, or breach any law, and the Designer will not be exposed to any claim from any person whatsoever.
The Client will indemnify and keep indemnified the Designer from and against any and all claims, liabilities, obligations, expenses (including legal costs) or damages that the Designer may suffer or incur as a result of the Client’s breach of clause 15.1.
The Client authorises the Designer to collect, retain and use any information about the Client for the purpose of assessing the Client’s credit worthiness and enforcing any rights under this Agreement.
The Client authorises the Designer to disclose any information obtained to any person for the purposes set out in clause 16.1.
Where the Client is a natural person the authorities under clauses 16.1 and 16.2 are authorities or consents for the purposes of the Privacy Act 1993.
Any claim or dispute arising hereunder shall be subject to arbitration in accordance with the Arbitration Act 1996. However, nothing in this clause prevents either the Designer or the Client from taking immediate steps to seek equitable relief before an appropriate Court.
The Client may not assign, transfer or charge these Terms and Conditions, any rights or obligations arising under these Terms and Conditions or the provision of any Work, or the Client’s interest in the Work without the Designer’s prior written consent.
The Designer shall not be liable for delay or failure to perform its obligations under this Agreement if the cause of the delay or failure is beyond its control.
Failure by the Designer to enforce any of the Terms and Conditions contained in this Agreement shall not be deemed to be a waiver of any of the rights or obligations the Designer has under this Agreement.
If any provision of this Agreement shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
This Agreement will be governed by the laws of New Zealand, and the parties submit to the jurisdiction of the Courts of New Zealand
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