Ninetyblack Ltd shall perform the Services (advertising, graphic design, website development) as described in the Client contract documents.
Nothing in this Agreement shall restrict, negate, modify or limit any of the Client’s rights under the Consumer Guarantees Act 1993 where the Services acquired are of a kind ordinarily acquired for personal, domestic or household use or consumption and the Client is not acquiring the Services for the purpose of a business.
The Client and the Consultant agree that where all, or any of, the Services are acquired for the purposes of a business the provisions of the Consumer Guarantees Act 1993 are excluded in relation to those Services.
In providing the Services Ninetyblack Ltd shall exercise the degree of skill, care and diligence normally expected of a competent professional company.
The Client shall provide Ninetyblack Ltd, free of cost, as soon as practicable following any request for information, all information in his or her power to obtain which may relate to the Services. Ninetyblack Ltd shall not, without the Client’s prior consent, use information provided by the Client for purposes unrelated to the Services. In providing the information to Ninetyblack Ltd, the Client shall ensure compliance with the Copyright Act 1994 and shall identify any proprietary rights that any other person may have in any information provided.
The Client may order variations to the Services in writing, by email or on the contract document, or may request Ninetyblack Ltd to submit proposals for variation to the Services. Where Ninetyblack Ltd considers a direction from the Client or any other circumstance is a Variation Ninetyblack Ltd shall notify the Client as soon as practicable.
The Client's account will be charged in NZD. The Client shall pay Ninetyblack Ltd for the Services, the fees and expenses at the times and in the manner set out in the Client’s contract documents. Where this Agreement has been entered by an agent (or a person purporting to act as agent) on behalf of the Client, the agent and Client shall be jointly and severally liable for payment of all costs, fees and expenses due to Ninetyblack Ltd under this Agreement.
All amounts payable by the Client shall be paid within seven (7) or twenty (20) working days of the following month as agreed in the contract of the relevant invoice being emailed or posted to the Client. Late payment shall constitute a default, and the Client shall pay default interest on overdue amounts from the date payment falls due to the date of payment at the rate of the Consultant’s overdraft rate plus 2% per month and in addition the costs of any actions taken by the Consultant to recover the debt.
Where Services are carried out on a time charge basis, Ninetyblack Ltd may purchase such incidental goods and/or Services as are reasonably required for Ninetyblack Ltd to perform the Services. The cost of obtaining such incidental goods and/or Services shall be payable by the Client. Ninetyblack Ltd shall maintain records which clearly identify time and expenses incurred.
Where a refund is due, the Client must contact ninetyblack ltd to notify them of the matter on 0800 90 25 22 or by email beseen@ninetyblack.com
Where Ninetyblack Ltd breaches this Agreement, Ninetyblack Ltd is liable to the Client for reasonably foreseeable claims, damages, liabilities, losses or expenses caused directly by the breach. The Consultant shall not be liable to the Client under this Agreement for the Client’s indirect, consequential or special loss, or loss of profit, however arising, whether under contract, in tort or otherwise.
The maximum aggregate amount payable, whether in contract, tort or otherwise, in relation to claims, damages, liabilities, losses or expenses, shall be five times the cost (exclusive of GST and disbursements) with a maximum limit of $NZ500,000.
Without limiting any defences a Party may have under the Limitation Act 2010, neither Party shall be considered liable for any loss or damage resulting from any occurrence unless a claim is formally made on a Party within one (1) year from completion of the Services.
If either Party is found liable to the other (whether in contract, tort or otherwise), and the claiming Party and/or a Third Party has contributed to the loss or damage, the liable Party shall only be liable to the proportional extent of its own contribution.
Intellectual property prepared or created by Ninetyblack Ltd in carrying out the Services (“New Intellectual Property”) shall be jointly owned by the Client and Ninetyblack Ltd. The Client and Ninetyblack Ltd hereby grant to the other an unrestricted royalty-free license in perpetuity to copy or use New intellectual Property. Intellectual property owned by a Party prior to the commencement of this Agreement and intellectual property created by a Party independently of this Agreement remains the property of that Party. The ownership of data and factual information collected by Ninetyblack Ltd and paid for by the Client shall, after payment by the Client, lie with the Client. Ninetyblack Ltd does not warrant the suitability of New Intellectual Property for any purpose other than the Services or any other use stated in the Agreement.
Ninetyblack Ltd has not and will not assume any obligation as the Client’s Agent or otherwise which may be imposed upon the Client from time to time pursuant to the Health and Safety in Employment Act 1992 (“the Act”) arising out of this engagement. Ninetyblack Ltd and Client agree that in terms of the Act, Ninetyblack Ltd will not be the person who controls the place of work.
Ninetyblack Ltd has not and will not assume any obligation as the Client’s Agent or otherwise which may be imposed upon the Client from time to time pursuant to the Health and Safety in Employment Act 1992 (“the Act”) arising out of this engagement. Ninetyblack Ltd and Client agree that in terms of the Act, Ninetyblack Ltd will not be the person who controls the place of work.
The Client may suspend all or part of the Services by notice to Ninetyblack Ltd who shall immediately make arrangements to stop the Services and minimise further expenditure. The Client and Ninetyblack Ltd may (in the event the other Party is in material default) terminate the Agreement by notice to the other Party. Suspension or termination shall not prejudice or affect the accrued rights or claims and liabilities of the Parties.
The Parties shall attempt in good faith to settle any dispute by mediation.
This Agreement is governed by the New Zealand law, the New Zealand courts have jurisdiction in respect of this Agreement, and all amounts are payable in New Zealand dollars.
Ninetyblack Ltd will refund by direct credit to the clients nominated bank account. This will include refunds for overpayment on invoices.
If you have any questions or comments about our terms, please contact us:
Ninetyblack Ltd
56 Manuka Street
Taupo 3378
New Zealand
beseen@ninetyblack.com
P: +64 7 377 0088
