TERMS OF TRADE
1. When these terms apply
Any work or services undertaken by or supplied to you by Bullzeye International Limited (Bullzeye) will be subject to these terms, unless otherwise agreed in writing by Bullzeye. By using Bullzeye to supply services to you, including by accepting any goods or services from Bullzeye (together, Services), you agree to these terms.
2. What Bullzeye will do
Bullzeye will not be bound to provide any services to you until Bullzeye confirms its agreement to do so by commencing to perform the work contemplated by the Services or otherwise notifying you that Bullzeye will so so. Once Bullzeye agrees to provide the Services, Bullzeye will:
(a) provide the Services in accordance with these terms including by creating the designs, artwork, literary or other artistic works (if any) specified in any job sheet or quote that Bullzeye has provided to you (Works); and
(b) liaise with you in the course of performing the Services to assist in meeting your requirements.
3. Bullzeye’s confirmations
(a) perform the Services with reasonable skill, care and diligence, in a manner which consistently meets a professional standard, using appropriately qualified or experienced staff;
(b) (with respect to the Works) deliver Bullzeye’s original work, except to the extent that your brief or instructions require, or you request, third party or pre-existing work be incorporated in or used to create the Works;
(c) perform the Services on a non-exclusive basis, and Bullzeye will be free to perform the same or similar work for others without restriction;
(d) make all reasonable efforts to ensure that the work is performed in accordance with the timeframes agreed between you and Bullzeye; and
(e) promptly advise you if Bullzeye considers that it will not be able to meet those timeframes.
4. What you must do
You must give all reasonable assistance to Bullzeye’s performance of the Services, including by:
(a) giving a clear brief and instructions;
(b) providing any information, artwork or other materials, including copy or content, you have or Bullzeye requires you to obtain which are necessary for Bullzeye to carry out the Services; and
(c) advising whether you accept any quote / job sheet provided by Bullzeye within 30 days of the date of that quote / job sheet (Acceptance Period). (Bullzeye may withdraw any quotation and any job sheet before it is accepted, and in any event, if you do notify Bullzeye of your decision within the Acceptance Period, the relevant quote / job sheet will be deemed to be withdrawn).
If you do not provide information or materials as directed by Bullzeye, then: Bullzeye may not be able to and will not be liable for meeting any timeframes for delivery agreed with you; and may charge you for the cost of Bullzeye performing work in connection with having to obtain or create the relevant information itself.
Bullzeye will invoice you for the Fee, being the fee specified in any job sheet or quote that Bullzeye has agreed with you, and any other fees as Bullzeye may reasonably charge to the extent that:
(a) fees for the Services have not been agreed in advance;
(b) Bullzeye performs work in addition to:
(i) the work initially agreed between you and Bullzeye (including if you change your brief or instructions while Bullzeye is performing the work or do not promptly make available any information requested by Bullzeye that is reasonably necessary to perform the work); or
(ii) the amount of work which would reasonably be suggested by your initial brief or instructions to Bullzeye (including if you request significant modifications or revisions to the work Bullzeye has performed); and
(c) Bullzeye incurs out-of-pocket expenses or costs on your behalf or which are reasonably necessary to perform the work,
(together, the Fees).
You must pay Bullzeye, in cleared funds and without any set-off or deduction, by the 20th of the month following the month of the date of Bullzeye’s invoice for the Services (or any other date Bullzeye specifies on any invoice):
(a) the Fees; and
(b) an amount equal to the Goods and Services Tax payable by Bullzeye in respect of the Services (unless the Fees are expressed to be GST inclusive or exempt, or is zero-rated).
(a)require (and you must pay) a deposit which may be up to 100% of the Fees before commencing any work; and
(b)invoice you (at its discretion):
(i) on completion of the work; or
(ii) for parts of the Fees on a monthly basis, or at other intervals, as work progresses.
Subject to clause 8, Bullzeye is and will be 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 Works, and in any other work it does for you, as first owner of those intellectual property rights and interests.
Upon payment of all Fees to Bullzeye in accordance with the terms of this agreement, Bullzeye assigns to you the copyright in the final form of any Works which Bullzeye has specifically created for you (excluding all drafts of the Works) but only:
(a)in the countries and for the purposes specified in the quote or job sheet agreed with you; or
(b) (if no countries or purposes are specified) in the countries and for the purposes which would reasonably be expected by Bullzeye on the basis of your request and the nature of the work.
You must not use the Works in any other countries or for any other purposes without Bullzeye’s express written consent and, without limitation, Bullzeye reserves its rights to charge additional fees for giving any such consent.
10. Your confirmations
You acknowledge and agree that:
(a) providing the Services in accordance with your brief and instructions will not: cause Bullzeye to infringe the rights of any third party or breach any law; or expose Bullzeye to any claim (including any claims for royalties or other payments) from any person;
(b) you have not withheld from Bullzeye any information which might be relevant to its decision to provide the Services to you;
(c) Bullzeye’s professional expertise is limited to marketing, graphic design and artistic services;
(d) all work Bullzeye performs for you is at your direction, and you are solely responsible for the substantive content of any Works which Bullzeye produces for you;
(e) these terms constitute the entire agreement between the parties and you are relying on your own professional judgement, expertise and qualifications, and have not relied on any express or implied representation or any previous correspondence by Bullzeye;
(f) The provisions of sections 9, 12A , 13 and 14(1) of the Fair Trading Act 1986 shall not apply; and
(g) all goods and services you acquire from Bullzeye are (or are held out by you as being acquired) for purposes of a business as defined in the Consumer Guarantees Act 1993 and that that Act will not apply to any work performed by Bullzeye for you.
11. Artistic style
Notwithstanding anything in this agreement or anything which is otherwise agreed between you and Bullzeye, Bullzeye retains exclusive ownership at all times of its artistic styles, methods of working, techniques, general creative ideas and skills everywhere in the world together with all materials, diagrams, working exercises, methodology and other pre-existing intellectual property of Bullzeye prior to any presentation to you or engagement by you.
Bullzeye’s staff assert their rights to be identified as the authors of all Works by the reference “Bullzeye” (or by such other name Bullzeye places on the Works). Bullzeye’s staff do not waive any of their moral rights in the Works or in any other works, and without limitation you must:
(a) attribute all Works to Bullzeye (with fair prominence) to the extent the Works are of a type where attribution can reasonably or conveniently be given;
(b) not attribute the Works to anyone other than Bullzeye or remove any “Bullzeye” trade marks, signatures, monograms, devices and the like from the Works; and
(c) not alter, modify or adapt the Works in any way (including by additions or deletions) without Bullzeye’s express written consent.
Bullzeye may use the Works and your name and identity (including by making further reproductions of the Works and by their public display) but only for the purposes of promoting and advertising its business, as part of its portfolio of works, on its website, and in advertisements, trade competitions or exhibitions relating to the promotion of these things.
Bullzeye’s liability (and the liability of anyone that Bullzeye is responsible for) to you for any costs, claims, losses, expenses made against you or incurred by you and arising as a result of the relationship between Bullzeye and you:
(a) is limited to direct loss or damage; and
(b) will not exceed an amount equal to that actually paid to Bullzeye by you under clause 5 in the 2 month period immediately preceding the month in which the event on which the claim is based occurred.
15. For the purposes of clause 14, direct loss or damage will not include:
(a) any losses or damages arising from delay, increase in operating costs, loss of profit, revenue, contract, business, data or goodwill of any person, economic loss, failure to realise anticipated savings or benefits, loss of production, loss of opportunity, loss of business reputation, future reputation or publicity, damage to credit rating;
(b) any indirect or consequential loss; or
(c) any loss resulting from liability to any third party.
16. Contract breach
Except as provided in clause 14, the liability of Bullzeye to you whether in tort (including negligence), contract, breach of statutory duty, equity or otherwise is excluded to the fullest extent permitted by law.
17. Warranties and representations
Except as provided in these terms, Bullzeye excludes all warranties and representations implied by law to the fullest extent permitted by law.
Without limiting Bullzeye’s other rights or remedies at law or in equity, you will indemnify and keep indemnified Bullzeye in respect of any and all claims, liabilities, losses, damages, costs or expenses incurred by Bullzeye arising out of or related to performing work for you, or any breach of these terms by you.
19. Outstanding fees
If the you do not pay any amounts payable to Bullzeye when due (time being of the essence), then you will be in default and Bullzeye may (without limiting its other rights or remedies):
(a) stop performing any further work for you;
(b) require you to immediately pay the Fees for all of the work (including work which Bullzeye has not already performed) and cease using any of the work Bullzeye has already provided until all Fees are paid; and
(c) charge you interest (on a daily basis) on the amount outstanding from the due date for payment until the date of payment, at a rate equal to 5% above the commercial overdraft rate charged by Bullzeye’s trading bank and you must, on demand, pay Bullzeye that default interest.
Bullzeye may, without liability to you, cancel at any time immediately on notice to you, the provision of Services (in whole or in part) if you:
(a) fail to pay the Fees when due or if Bullzeye is concerned at any time (on reasonable grounds) about your ability to pay the Fees when due;
(b) cease to carry on business or threaten to cease carrying on business; or
(c) become insolvent, have a receiver appointed over all or some of your assets, or a resolution is passed for your liquidation (if you are an incorporated entity).
Cancellation of the provision of any Services for whatever reason will be without prejudice to the accrued rights of the parties.
22. Force majeure
Non-performance by Bullzeye of any of its obligations to perform work for you will be excused, without liability for non-performance, if that performance is prevented, wholly or substantially, by an event beyond Bullzeye’s reasonable control. Bullzeye will resume performance of its obligations as soon as the event has ended, and if the event has not ended within 60 days, Bullzeye may cancel the agreement to perform the work on notice to you.
You must keep strictly confidential any information made available by Bullzeye to you which is by its nature confidential, including any job sheet or quote, until that information: becomes generally known to the public (other than due to a breach of this clause); or is legally required to be disclosed by you.
Bullzeye is an independent contractor to you and is not your agent, partner or employee. Neither party may pledge the credit of the other nor represent to anyone that it has any power or authority to incur any obligation of any nature on behalf of the other.
Bullzeye may use agents, subcontractors or other third-parties in providing the Services.
26. Assigning rights
You will not assign, transfer or charge these terms, any rights or obligations arising under these terms or the provision of any Services, or your interest in the Works without Bullzeye’s prior written consent.
27. No waiver
A failure, delay or indulgence by a party in exercising any power or right under these terms will not operate as a waiver of that power or right.
28. Express rights
The exercise by a party of any express right set out in these terms (Express Right) is without prejudice to any other rights, powers or remedies available to that party in contract, law or in equity including any rights, powers or remedies that would be available to that party if the Express Right was not set out in this agreement.
Bullzeye may recover from you (as a debt owing) all costs Bullzeye incurs in enforcing these terms including debt collection costs and any legal costs as between solicitor and client.
Bullzeye reserves the right to amend these terms at any time by changing or removing existing terms or by adding new ones. Bullzeye will tell you about any changes to these terms by writing to you or putting up a notice at Bullzeye’s website.
The words “including”, “includes” and any similar words do not imply nor infer any limitation.
32. Dispute resolution
If a dispute arises between the parties about anything relating to the Services, then each party will do its best to resolve the dispute by reaching agreement between the parties. If either party considers (acting reasonably, that the dispute has not been resolved within a reasonable time, then either party may refer the dispute to mediation, which will be conducted in terms of the LEADER New Zealand Inc. standard mediation agreement. Nothing in this clause will preclude either party from taking immediate steps to seek equitable relief before an appropriate court.
33. Governing law
These terms will be governed by, and construed in accordance with, the laws of New Zealand. The parties submit to the non-exclusive jurisdiction of the courts of New Zealand.