Thank you for your interest in Neon Nights. I’m thrilled to help you reach your ideal client and let your brand shine.
I know that clear communication is key to a successful working relationship and shared outcomes. Therefore, I’ve prepared these terms of business to help guide you through working with me. If you have questions at all, please get in touch.
The parties to this agreement are Neon Lights Design Limited as Neon Nights and the client set out in our Quote (“Client”, “you”).
I provide my clients with high-quality brand creation and graphic design services for design, illustrations, marketing collateral design, social media assets, and packaging design. The specific deliverables I will provide to you under the current engagement are set out in our Quote. If multiple options have been set out, the specific services and deliverables to be offered under the engagement will be those that you select.
Please note that if the deliverables include the production of a graphic, I will present you with three (3) concepts for review and selection. Once you’ve selected your logo, two (2) revisions to the logo (such as colour variations) are free. Once the final logo has been signed off, two (2) revisions to each of the other deliverable items are included. Any deliverables or revisions above and beyond these inclusions will be subject to further agreement and fees.
If we have discussed a service or deliverable previously but you don’t see it included in the Quote or in this agreement, please raise this with me. The scope of this engagement will be limited to the documented services and deliverables.
All relevant files for deliverables will be provided once payment has been made in full, subject to the balance of this agreement.
3. YOUR RESPONSIBILITIES
So that I can provide top quality services to you, I need you to play your part as well. This is teamwork! Working with you as a team makes the process more meaningful and helps us get to the heart and soul of your vision sooner. I want to help you as much as I can and so I need you to give me all the information, feedback and instructions that I need as soon as you can. If you’re not able to provide me with these things in a timely fashion, this can cause delays in the project, which can also involve extra fees. You agree to provide accurate and complete responses to my questions within 7 days (see a change of scope clause below).
4. CHANGES TO SCOPE
The services I will provide are limited in scope, as set out in my Quote. If you request I provide you with services outside the scope of the project, or incur extra expenses, I retain the right to refuse your change request. Any changes to this agreement must be made in writing and additional fees will be payable. I will advise you of such additional fees as soon as possible and may require payment in advance to secure payment of the extra services.
If you require design work to be expedited (outside of project scope and agreed time frames), I’ll do my best to accommodate you, but please know that high-quality design takes time – unreasonable time constraints can affect on the quality of the product and so I reserve the right to refuse any request to expedite work. If I agree to expedite your project, additional fees up to 50% of the relevant agreed fee will be payable. This is because I will need to be financially compensated for working overtime.
I calculate my fees based on the scope of work discussed and agreed with you and the total project cost is set out in my Quote. Prices set out in my Quote are valid for three (3) months from issue. Please note that the total project cost is subject to change in the following circumstances:
a) if time spent on any stage exceeds our estimate due to factors outside of my control, including because of instructions by you to complete work outside of the initial scope; or
b) if third parties which I engage on your behalf change their fees or charges.
If I expect the total project cost to exceed my estimate, I will inform you as soon as practicable.
I may also agree to undertake work on a retainer basis, such as social media management. Here, you agree to pay me the fees set out in my Quote at regular intervals, as set out in the Quote.
Please note that all fees and charges quoted by me are not subject to GST, unless otherwise stated on my Quote.
I may incur expenses in providing the services, which you will need to pay me besides my fees. These may include:
a) Installation costs;
b) Electrical costs;
c) Equipment hire costs;
I’ve endeavoured to include all expected expenses in my Quote, however, please note that after we engage in brand discovery and the ideation phase, additional expenses may arise. You allow me to incur reasonable additional expenses in providing the services and reimburse me for those expenses.
There may be circumstances where I require you to pay for expenses upfront (for example, font licenses). I will require you to make payment as directed by me (for example, to log in and enter your credit card details). You agree to make such payments as reasonably directed by me.
For expenses greater than $50, I will endeavour to seek your permission prior to incurring the expenses, however, please note that this may not always be possible (such as in the event of an urgent request or need to get an item quickly because of scarcity).
I may, in my absolute discretion, request a deposit payment. If I require a deposit, I will set out the amount and due date in my Quote. In most circumstances, the required deposit will be 50% of the total agreed project cost, however please refer to your Quote for exact amounts. I will not be obliged to begin work on the engagement unless or until you pay the deposit amount as instructed.
For projects below a total cost of $1,000.00, payment will need to be made 100% in full before work begins.
I will invoice you for fees and expenses on completion of each stage of the projector at agreed intervals, as set out in my Quote. If invoicing intervals are not set out in the Quote, I will invoice you for the balance of fees and expenses on completion of the project, or 30 days after I last receive contact from you.
My invoices are due 14 days from issue, unless otherwise set out in my invoice. Payment of invoices must be made by electronic funds transfer or direct bank deposit into my nominated account. I may, in my absolute discretion, charge interest on all amounts outstanding for over 14 days at 10% per annum.
If you wish to pay by credit card, please advise me and I will provide the PayPal payment option in my invoice. You will incur the PayPal fee on top of my invoiced amount. PayPal sets the amount out and I will advise you of the amount.
If any amounts remain outstanding for over 60 days, I may refer the matter to a debt collection agency or solicitor and you will be liable to pay any costs I incur or become liable to pay for the collection of such unpaid amounts, including but not limited to debt collection fees, charges and commissions and legal fees and costs on a full indemnity basis.
Deliverables in agree file formats (such as .jpeg, .png or .eps) unlocked and unwatermarked will not be released to you until I have received payment in full. Please note that I will not under any circumstances be obliged to deliver design files, such as Illustrator or InDesign files. These files are kept for my internal purposes only. If you require me to deliver such internal files to you, this will be subject to further agreement and fees.
8. ACCESS AND CONTROL
I may require reasonable access to your digital assets (such as your website or social media profiles) to provide the services. You agree to give me access on request. I won’t be responsible for any delay in the project if I’m unable to gain access as requested.
9. LICENCE OF INTELLECTUAL PROPERTY
During the engagement, I may provide you with materials that are subject to Intellectual Property Rights. I keep all Intellectual Property Rights (including Moral Rights) in all works I create in relation to the project, including any brand boards, style guides, packaging designs, images, illustrations, logos, graphics or other written or visual work. Nothing in this agreement will cause any assignment of such rights.
Otherwise, I agree to grant you an exclusive licence to use the Intellectual Property created during the project for the purposes set out in my Quote, subject to the balance of this agreement. Such licence will be granted on the receipt of payment of my final invoice in relation to the project.
Licences referred to in this clause specifically exclude any right to sell, licence or distribute the Intellectual Property – or attempt to do any of those things - without my prior written consent, which may be withheld in my absolute discretion. In the event of a breach of this clause, any licence will be immediately revoked and I may pursue you for an appropriate remedy, which may include a claim for damages or an account of profits. You are not authorised to copy, share, republish or otherwise distribute such works otherwise than under such licence.
If you request that I assign my Intellectual Property Rights in any work, this will be at my absolute discretion and may be subject to further agreement and fees.
I keep the right to watermark or otherwise digitally lock or protect my Intellectual Property (including images, content or other works) produced under this agreement to protect Intellectual Property Rights. Please note if this agreement is ended, I will not be obliged to provide any Intellectual Property to you. If you cannot make payment as required by this agreement, I may end this agreement, in which case there will be no grant of licence and I will be within my rights to sell or licence the use of such Intellectual Property to any other person.
Unless otherwise agreed in writing, you grant me permission to use and reproduce your name, business name and logo (if applicable), photograph or likeness, including any trademarks, as well as evidence of services delivered and results achieved, for promoting my business. You agree I may place images of designs and deliverables on my webpage, together with a hyperlink to your website.
10. CLIENT’S WARRANTY AND INDEMNITY
You warrant at all times during this agreement that:
a) you have the full right and title (including all Intellectual Property Rights) to all elements of text, graphics, photos, videos, designs, trademarks, or other artwork or text you provide to me for this agreement (Elements), or that you have received written permission from the rightful owner(s) to use each of the Elements for the purpose it is to be used by you, or by me on your behalf; and
b) you have complied with and/or will comply with all applicable laws and regulations that relate or apply to the project at your own expense.
You indemnify me on a continuing basis for all loss and damage associated with any false warranty given by you and/or any breach of the warranties set out in this clause and/or any breach of any other person’s Intellectual Property Rights or other rights arising out of such breach.
11. CHANGES TO TERMS
I may elect to change my terms on notice to you. If I decide to change my terms, I will email a copy of the updated terms to you at least 20 Business Days prior to the changes becoming effective. After the expiration of that period, if you continue to request the services, I will assume you have accepted the updated terms.
I may, during the engagement, disclose Confidential Information to you. I may also require you to provide me with Confidential Information for providing the services. We each agree that we will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which we have got. This is except as allowed by the other party or as required by law.
13. LIMITATION OF LIABILITY
I will provide my services with due care and skill and to the level of my ability. Please note that I do not offer any guarantees beyond those available to you at law (for example, any consumer guarantees you are entitled to under the New Zealand Consumer Law). I do not provide any warranty or guarantee as to results that may be achieved. Any indications given are examples and are based on experience and must not be relied on to predict future results. You agree that you have not relied on any warranty, guarantee or representation given by me in entering this Agreement.
You also acknowledge and agree that third-party platforms which I may use to provide the services, or which the services take advantage of, such as Facebook, Instagram, MailChimp and Squarespace, are not controlled or influenced by me and I cannot guarantee their continued availability. Should a critical platform become unavailable for any reason, I will discuss a mutually acceptable alternative or termination with you.
Nothing in this agreement should exclude any right or guarantee to which you are entitled under the New Zealand Consumer Law. Where my services fall within the New Zealand Consumer Law, I limit our liability to you to the fullest extent permissible under section 64A of the New Zealand Consumer Law;To the supply of the services again or the cost of having the services supplied again. I specifically exclude liability for negligence. To the maximum extent permissible by law, I exclude liability for consequential loss or damage, including loss of business profits.
If my services fall outside the New Zealand Consumer Law, I exclude all liability to you (including for consequential loss or damage, or loss of business profits) and you waive, release and discharge, on a continuing basis, all claims you have or may have against me relating to the provision of the services, however arising. I specifically exclude liability for negligence.
You indemnify me and hold me (along with my officers, employees, agents, contractors and related bodies corporate) harmless in respect of any and all claims, loss or damage of any kind (including legal costs and disbursements on a full indemnity basis), arising directly or indirectly out of any act or thing done by me in good faith and purportedly under a right granted to us under this agreement, and any breach by you of any of the terms of this agreement.
Either party if may end this agreement:
a) the other party breaches a term of this agreement and cannot remedy the breach after being given 7 days’ notice of the requirement to remedy the breach; or
b) An Insolvency Event occurs in relation to either party;
The parties acknowledge and agree that the termination of this agreement by either party other than under the express terms of this clause will be deemed a breach of this agreement.
If termination is disputed, will be dealt with under the dispute resolution provisions of this agreement.
15. CONSEQUENCES OF TERMINATION
If this agreement is ended, all rights and obligations accrued up to the agreement are not affected.
If you end this agreement, you must pay all fees and expenses incurred up to the time of termination.
This clause, as well as any other clause that by its nature should survive termination, will survive termination.
16. DISPUTE RESOLUTION
Design work is very personal and can be highly subjective. For this reason, I take my time getting to know you and understanding your goals. If for any reason you’re unsatisfied with my work, please communicate this with me as soon as possible, so we can find a mutually acceptable resolution. I encourage you to raise any issues with me informally (for example, via telephone) prior to utilising the dispute resolution mechanisms set out in the rest of this clause, if appropriate.
If a dispute arises between the parties, the party claiming the dispute must not begin any court or arbitration proceedings (except where they seek urgent interlocutory relief), unless they have first complied with this clause:
a) The party must inform the other party in the writing of:
i. the nature of the dispute;
ii. the outcome they desire to resolve the dispute, and
iii. the action they believe will settle the dispute.
b) On receipt of the notice by the other party, both parties will try to settle the dispute by mutual negotiation within 20 Business Days.
c) If the parties cannot resolve the dispute at that time, the parties must agree on the selection of a mediator (if the parties are unable to agree, they agree to request that the President of the Law Society of Queensland appoint a mediator) and will be equally liable for the fees and reasonable expenses of the mediator and the cost of the venue of the mediation (to be paid in advance). The parties must each pay their own costs associated with the mediation, which must be held in Auckland, New Zealand. Unless the parties and the mediator agree that the location is inconvenient and are unable to agree on a suitable alternative location. Here, the parties may participate in online mediation.
All communications made by the parties arising out of this dispute resolution clause are confidential and to the maximum extent possible, must be treated as “without prejudice” negotiations for applicable laws of evidence.
This clause survives the termination of this agreement.
a) Term: The term of this agreement will begin on the date you accept it and will continue unless or until the services are fully provided and paid for in full or ended under this agreement or general law.
b) Time is of the essence: Time is of the essence in this agreement. No extension or variation of this agreement will operate as a waiver of this provision.
c) Amendment: Unless otherwise set out in this agreement, any amendment or variation to this agreement (such as a change to the services to be provided) is not effective unless it is in writing and signed by both parties unless otherwise set out in this agreement.
d) Assignment: I won’t voluntarily assign or otherwise transfer my obligations under this agreement without your prior consent, however, I may sub-contract one or more aspects of the services, provided always that I will remain the head contractor and will be responsible for the delivery of services under this agreement.
e) Relationship of parties: Nothing in this agreement will make up the relationship of partnership or employer and employee between the parties and it is the express intention of the parties that any such relationships are denied.
f) Entire agreement: This agreement is the entire agreement and understanding between the parties on everything connected with the subject of this agreement, and supersedes any prior understanding, arrangement, representation or agreements between the parties as to the subject in this agreement.
g) Severance: If anything in this agreement is unenforceable, illegal or void, it is severed and the rest of the agreement remains in force.
h) Waiver: Any waiver by any party to a breach of this agreement will not be deemed to be a waiver of a subsequent breach of the same or of a different kind.
i) Events beyond control: Neither party will be liable to the other party for any loss caused by any failure to observe the terms and conditions of this agreement, where such failure is occasioned by causes beyond its reasonable control including, but not limited to, fire, flood, riot, strike, war, restrictions and prohibitions or any other actions by any government or semi-government authorities, or major injury or illness of key personnel.
j) Governing law: The law of Queensland governs this agreement and the parties submit to the non-exclusive jurisdiction of the courts of Queensland.
k) Notices: A notice or other communication to a party must be in writing and delivered to that party in one of the following ways:
i. delivered personally;
ii. Posted to their address, when it will be treated as having been received on the second business day after posting; or
iii. Sent by email to their email address, when it will be treated as received when it enters the recipient’s information system.
New Zealand Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Business Day means a day on which banks are open for business in Auckland, other than a Saturday, Sunday or public holiday.
Confidential Information relates to any data or information relating to a party, whether business or personal, written or oral and regardless of how or when it was provided to the other party, which would reasonably be considered to be private or proprietary to that party and that is not known and where the release of that confidential information could reasonably be expected to cause harm to that party, and includes the terms of this agreement (except if disclosure of the terms is necessary for legal or financial advice).
An insolvency event refers to any event which shows that the party in question cannot pay their debts as they fall due.
Intellectual Property refers to works to which Intellectual Property Rights attach.
Intellectual Property Rights means all intellectual property rights of any kind, in any jurisdiction, subsisting now or in the future (including, without limitation, business, company or trade names, domain names, patents, inventions, copyright, design rights, know-how, trademarks, the right to sue for passing off and rights to use, and protect the confidentiality of, confidential information), whether registered or unregistered and including the rights to apply for or renew the registration of any such rights and any rights the subject of any lapsed application or registration, as well as all digital and electronic rights.
Moral Rights mean the personal rights of a creator to have his or her work attributed to them and to insist that its integrity be kept.
In interpreting this agreement:
a) References to legislation or provisions of the legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
b) Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, notated or replaced, and words denoting one gender include all genders;
c) Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this agreement;
d) Grammatical forms of defined words or phrases have corresponding meanings;
e) Parties must perform their obligations on the dates and times fixed by reference to Auckland, New Zealand;
f) Reference to an amount of money is a reference to the amount in the lawful currency of New Zealand;
g) If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next Business Day;
h) References to a party should bind their executors, administrators and permitted transferees; and
i) Obligations under this agreement affecting over one party bind them jointly and each of them severally.
You can accept these terms by:
a) returning a signed copy of the terms to me; and/or
b) informing me in writing or verbally that you accept the terms; and/or
c) instructing me to provide the services after you have received a copy of these terms; and/or
d) making a payment to me after you have received a copy of these terms.
ACCEPTANCE OF TERMS
Please sign and return a copy of these terms to confirm your acceptance. These terms will be effective for future engagements unless I advise you of any change.