Terms of Services
Blue Eye Deer reserves the right to change its terms and conditions from time to time without prior written notice being provided. Any amendment to the terms and conditions shall become effective on any amendments to Blue Eye Deer's Terms & Conditions being posted on its website at www.blueeyedeer.co.nz/terms-of-service
Background IP: means the Intellectual Property Rights owned by each Party prior to the start date of your engagement with us, or developed outside the scope of services being provided under these Terms & Conditions.
Blue Eye Deer, we, our or us: means Blue Eye Deer Ltd, its successors and assigns.
Client, you and your: refers to the company or individual providing instructions to Blue Eye Deer. The term "Client" also includes prospective clients for whom Blue Eye Deer produces outputs.
Confidential Information: "Confidential Information" means information (whether oral, in writing or in any other form) belonging to a party which relates to that party's Intellectual Property Rights or financial affairs, and any other information belonging to that party of commercial value to that party which, by its nature, is or could reasonably be expected to be regarded as confidential.
Confidential information does not include information that:
a) the Recipient can demonstrate was known to it prior to the date of disclosure;
b) is lawfully and independently obtained from a third party without restriction as to its disclosure or use;
c) is independently deduced, discovered or developed by the Recipient;
d) is or becomes (through no fault of the Recipient or its officers, employees, contractors or professional advisers, and their respective employees and officers) public knowledge;
e) the Recipient is required to disclose by law or by order of any court of competent jurisdiction or of any regulatory authority whose requirements are binding on the Recipient; or
f) is released from its confidential status by the Discloser.
Deliverables: means the final form materials delivered to you for your use as part of the services, such as designs, files, drawings, improvements to existing content, know how, and layouts.
IP: include all present and future rights in relation to copyright, trade marks, designs, patents, trade, business or company names, trade secrets, confidential or other proprietary rights, or any rights to registration of such rights, whether created before or after the date of these Terms & Conditions and whether existing in New Zealand or otherwise.
New IP: means IP developed by Blue Eye Deer as a result of, or in connection with, the Client’s instructions to Blue Eye Deer including modifications to the Client’s Background IP but for clarity, does not include any of the Background IP contained in it.
Parties: means the Client and Blue Eye Deer.
Penalty Interest Rate: means a rate of 5% per annum above the average of the BNZ Business overdraft interest rates, as applying from time to time.
Pre-booked Services: means the services or products provided by third-parties and purchased by us in connection with the services provided to you under these Terms & Conditions, including without limitation the purchase of media.
Proposal Concepts & Presentation Materials: means all materials, concepts, designed, files drawings, ideas, improvements, inventions, know how, layouts, novel ideas, plans, procedures, processes, samples, and systems disclosed by us to you, except for the Deliverables.
PARTIES, ASSIGNMENT, APPLICABILITY, VARIATION & WAIVERS
1.1 These Terms & Conditions apply to all instructions provided by the client to Blue Eye Deer and all work carried out by Blue Eye Deer for a client.
1.2 If a client consists of more than one person, these Terms & Conditions binds them jointly and each of them severally.
1.3 These Terms & Conditions apply to all instructions and/or work except to the extent agreed to in writing by a director of Blue Eye Deer
2.1 Any terms and conditions proposed by the client inconsistent with these Terms & Conditions are to be of no effect unless expressly agreed to in writing and signed by a director of Blue Eye Deer.
2.2 In the event of any inconsistency between the Quotation/Estimate, these Terms & Conditions, and any schedules and/or attachments, these Terms & Conditions in conjunction with the Quotation/Estimate shall prevail.
2.3 In the event that a client asks Blue Eye Deer to commence work without Quotation/Estimate, these Terms & Conditions shall prevail.
3.1 If any term of these Terms & Conditions is or becomes invalid or unenforceable, that term will be severed or modified without affecting the other terms of these Terms & Conditions. All other terms of these Terms & Conditions will continue to be valid and enforceable.
4.1 No rights under these Terms & Conditions accruing to Blue Eye Deer will be deemed to be waived unless such waiver is agreed to in writing and signed by a director of Blue Eye Deer.
4.2 A waiver by Blue Eye Deer pursuant to the above clause will not prejudice its rights regarding any subsequent breach of these Terms & Conditions by the Client.
4.3 No failure by Blue Eye Deer to enforce, and no forbearance, delay or indulgence granted by Blue Eye Deer to the Client in respect of any clause of these Terms & Conditions will be construed as a waiver of Blue Eye Deer's rights under these Terms & Conditions.
4.4 In addition, no single or partial exercise by Blue Eye Deer of any right, remedy or power under these Terms & Conditions shall preclude any other or further exercise by Blue Eye Deer of that right, remedy or power.
OFFER & ACCEPTANCE, COMMENCEMENT & COMPLETION
5.1 The terms of any offer made by Blue Eye Deer can be varied at the sole discretion of Blue Eye Deer up until the work to be carried out is commenced and can in any event be further varied in the event of any circumstance arising that was unforeseen or which increases the cost to Blue Eye Deer of carrying out such work (whether of the client's making, that of a third party and/or otherwise).
5.2 Once the Client's instruction has been received, Blue Eye Deer shall have a two week period in which to agree to carry out the instructions and/or work or decline to do so.
6.1 The Client's acceptance of Blue Eye Deer's offer, whether by means of email, purchase order, letter of intent, verbal or any other method of acceptance, will constitute the Client's acceptance of Blue Eye Deer's offer and these Terms & Conditions.
6.2 By providing instructions to Blue Eye Deer, the Client acknowledges that it has read and understands these Terms & Conditions and agrees that it is bound by the obligations created by these Terms & Conditions.
RIGHTS & RESPONSIBILITIES
7.1 Rights & Responsibilities of Blue Eye Deer:
7.1.1 Reasonably Timely: Blue Eye Deer will use its best endeavours to provide the Services to the Client:
(a) In a reasonably timely manner.
(b) In the period between the commencement and completion dates, where the written confirmation of agreement specifies these dates.
7.1.2 Flexible & Supported: Blue Eye Deer may:
(a) Provide the Services to the Client during such hours and on such days as Blue Eye Deer considers necessary to complete the Services.
(b) Engage subcontractors to assist in the provision of the Services pursuant to these Terms & Conditions.
7.2 Rights & Responsibilities of the Client:
7.2.1 Duty to Co-operate: The Client is responsible for:
(a) Delivering the required documents and information and other inputs as agreed upon.
(b) Ensuring the above inputs are useable, i.e. in the format and quality specified by Blue Eye Deer.
(c) Ensuring that Blue Eye Deer has full and safe access to the Client's premises and any necessary materials and information that is reasonably required to enable Blue Eye Deer to comply with its obligations under these Terms & Conditions.
(d) Working with Blue Eye Deer to take all reasonable steps to co-ordinate activities, in order to manage the potential impact on commercial activities of both parties, in the performance of these Terms & Conditions.
7.2.2 If performance by Blue Eye Deer of this agreement impacts on the Client's commercial operations (or vice versa), Blue Eye Deer and the Client will each take all reasonable steps to co-ordinate activities so that such impacts are minimised provided that Blue Eye Deer shall have no liability and/or responsibility for any losses (whether direct and/or indirect) occasioned to the client as a result of any delay (arising from any cause whether the fault of Blue Eye Deer, the Client and/or otherwise) in carrying out the instructions.
8.1 Rights & Responsibilities of Blue Eye Deer:
8.1.1 Background IP: Each Party’s Background IP shall remain the sole and exclusive property of that Party.
8.1.2 Your Background IP licence to us: You shall grant us a royalty-free, non-exclusive, non-transferable licence to use your Background IP to enable us to provide the services to you.
8.1.3 New IP in Deliverables:
(a) Upon full payment of any amount due under these Terms & Conditions, the New IP in the Deliverables will be owned by you.
(b) You acknowledge that a significant portion of the Background IP we bring to the engagement is built up by us over a number of engagements and that you get to share in that accumulated knowledge and IP by engaging us. To enable us to continue building on that IP base, and without taking away from clause 8.1.3(a), you agree to grant us a royalty-free, non-exclusive licence to use any New IP in the Deliverables.
8.1.4 New IP in Proposal Concepts & Presentation Materials: We retain ownership of the Proposal Concepts & Presentation Materials, excluding the New IP in the Deliverables.
8.1.5 Provided that you consent to it, Blue Eye Deer is entitled to show the name and/or logo of the Client and the services rendered to it, and/or refer to the Client in relation to the services rendered to it, in the press and Blue Eye Deer's advertising contracts, including Blue Eye Deer's website.
8.1.6 Provided that you consent to it, Blue Eye Deer shall be entitled to be named as the author on all publicity aids and in all advertising campaigns of the Client.
8.1.7 Proposal Concepts & Presentation Materials: The Client acknowledges that it will not utilise any Proposal Concepts & Presentation Materials without having the agreement in writing from Blue Eye Deer signed by a director.
8.1.8 Delivery Dates: All dates and times quoted for delivery of Services and or Products are estimates only.
8.1.9 Blue Eye Deer will use all reasonable endeavours to meet the Deliverables Timetable.
8.1.10 Delay In Performance: In the case of any and all events that Blue Eye Deer could not have foreseen or prevented, such as fire, natural disasters, war, terror, strikes, power outages and/or if the delivery of the Services and or Products is delayed for any reason other than a breach of these Terms & Conditions by Blue Eye Deer:
(a) The time specified for the delivery of the Services and/or Products, will be extended as a result of the delay to a period notified by Blue Eye Deer in its sole discretion; and
(b) Blue Eye Deer will be entitled to claim payment for any costs and expenses suffered by Blue Eye Deer for Pre-booked Services as a result of the delay in performance.
8.2 Rights & Responsibilities of the Client:
8.2.1 Rights of Use: Save as may otherwise be agreed in writing between the parties and signed by a director of Blue Eye Deer:
(a) Blue Eye Deer grants the Client a license conferring the right of use of the Services and/or Product provided to it by Blue Eye Deer;
(b) If the Client alters or amends any of the Services and/or Product delivered the Client shall not name Blue Eye Deer as the author of the altered or amended Services and/or Product without our written consent.
(c) It is an essential term of this agreement that the Client will not engage the services of a third party to amend or further develop the work provided by Blue Eye Deer during the course of this agreement.
(d) The transfer and/or assignment of these rights of use and enjoyment to third parties requires the written consent of Blue Eye Deer.
(e) The License conferred by this clause is granted only on condition that payment for all services is made as required by these Terms & Conditions.
(f) Upon Blue Eye Deer giving notice in writing to the Client, the Client shall immediately return all Proposal Concepts & Presentation Materials. The Client shall not be entitled to continue to use or, in particular, to edit, pass on to third parties, publish or make copies of any Proposal Concepts & Presentation Materials unless the Client provides instructions to Blue Eye Deer and Blue Eye Deer agrees in writing signed by a director to the Proposal Concepts & Presentation Materials being retained by the Client.
(g) If the Client does not provide an instruction following a presentation, the Client shall not be entitled to continue to use any services delivered and/or materials provided as part of the presentation including but not limited to editing the materials, providing the materials to third parties, publishing or making copies of any such materials and/or utilising the materials for in-house training and/or other purposes. For the avoidance of doubt the Client shall not be entitled to utilise any of Blue Eye Deer's ideas and concepts on which the presentation is based.
8.2.2 Correctness of Claims & Content: Once the Client has approved conceptual designs, final artwork or final drawings:
(a) The Client will be responsible for the correctness of all text and the inclusion of the pictures and their location on any part of the materials.
(b) The Client carries responsibility for the accuracy of any statements in the advertisements made with regard to products or services delivered by the Client and acknowledges that Blue Eye Deer is simply relying on information provided by the Client, Blue Eye Deer has not made any independent enquiry as to the accuracy of the information which the client warrants as completely true and correct;
(c) The Client warrants that there has been no infringement of any third party's intellectual property rights and that all necessary consents by third parties either as to the use of the intellectual property rights and/or the use of any imagery of that third party have been obtained.
8.2.3 We will take reasonable steps to ensure the services provided to you under these Terms & Conditions (except for any material you provide to us) will not infringe the copyright of any third party.
8.2.4 Compliance Responsibilities: The Client shall check all material submitted to Blue Eye Deer and any material provided to the Client by Blue Eye Deer for any image and/or content that may infringe copyright and/or any other intellectual property rights or rights of third parties and shall advise Blue Eye Deer in writing prior to approving any artwork, copy and/or written materials of any such infringement. In the absence of written notification as required by this clause the Client warrants that there is no infringing material that Blue Eye Deer is being requested to produce.
8.2.5 The Client is responsible for ensuring a legal review of proposed ideas, suggestions, concepts, proposals, conceptual designs, etc and their patentability, copyright-ability, eligibility for trademark registration, non-infringement of third parties' intellectual property rights, and compliance with all relevant laws and regulations and warrants that all such materials comply with all legal requirements.
8.2.6 Nothing in this clause shall derogate from the indemnity the Client provides to Blue Eye Deer pursuant to these Terms & Conditions.
9.1 Confidential Information: Inclusions
9.1.1 The recipient of Confidential Information belonging to another party must take all reasonable steps to ensure that it keeps confidential during the term of any instruction and at all times in the future after the completion of the instruction and after the termination of these Terms & Conditions.
9.1.2 The Client will procure an undertaking as to the confidentiality of the information from each of its officers, employees, contractors and professional advisors (and their employees and officers) if requested.
9.2 Confidential Information: Exclusions
9.2.1 Confidential information does not include information that:
(a) the Recipient can demonstrate was known to it prior to the date of disclosure,
(b) is lawfully and independently obtained from a third party without restriction as to its disclosure or use,
(c) is independently deduced, discovered or developed by the Recipient;
(d) is or becomes (through no fault of the Recipient or its officers, employees, contractors or professional advisers, and their respective employees and officers) public knowledge;
(e) the Recipient is required to disclose by law or by order of any court of competent jurisdiction or of any regulatory authority whose requirements are binding on the Recipient; or
(f) is released from its confidential status by the Discloser.
INDEMNITIES, LIABILITIES & WARRANTIES
10. Indemnities & Liabilities
10.1 Rights & Responsibilities of the Client: Inclusions
10.1.1 The Client indemnifies Blue Eye Deer, its officers, employees, contractors or professional advisers, and their respective employees and officers, in respect of any claims, loss (including legal costs on a solicitor-client and/or indemnity basis and any actual expenses incurred including but not limited to those of any debt collection agency and any direct, indirect or consequential loss), caused by or arising out of, directly or indirectly the carrying out of any instruction by Blue Eye Deer from the Client and/or any act, omission, negligence, or default by or on behalf of the Client and/or the infringement of any copyright, patent and/or any other intellectual property right of any third party whether such liability arises under the Fair Trading Act or any other statutory enactment irrespective of whether it is known at the time of infringement that such third party rights exist (including but not limited to any provision of the Health and Safety in Employment Act 1992, the Privacy Act 1993, the Fair Trading Act 1986 and/or any other enactment under which Blue Eye Deer may become liable).
10.2 Limitation/Exclusion of Liability
10.2.1 Blue Eye Deer shall have no liability to the Client for any delay in carrying out any instructions received and/or otherwise as a result of the breach of any terms of these Terms & Conditions and shall have no liability for any losses suffered to the Client (whether being direct losses and/or indirect and/or consequential and/or economic losses) howsoever caused (whether as a result of the wilful acts of Blue Eye Deer its employees, contractors and/or agents and/or as a result of any negligence on the part of Blue Eye Deer, its employees, contractors and/or agents).
10.2.2 Blue Eye Deer makes no representation as to the originality of any ideas, suggestions, concepts, proposals, conceptual designs, and/or their patentability or eligibility for trademark registration nor as to the ownership of any copyright in the ideas.
10.2.3 Blue Eye Deer's total liability under these Terms & Conditions to the Client or any other party will not exceed 2x the amount you have actually paid to Blue Eye Deer, excluding Pre-booked Services, legal reviews to be reimbursed in accordance with clause 15.1 (if any), and any other costs agreed to be reimbursed by the Client.
10.2.4 Without limiting the foregoing exclusions and limitations on Blue Eye Deer's liability the following specific exclusions shall also apply:
(a) Blue Eye Deer is not liable for content posted by the Client on websites.
(b) Blue Eye Deer will not be liable for any changes the Client makes to all or part of the website or email systems that are the subject of any instruction to Blue Eye Deer;
(c) Screen colours (RGB) may deviate from printer's colours (CMYK) on various media (e.g. paper, fabrics, films, foils, banners, etc).
(d) Figures or photos in printed work or on the Internet are not the responsibility of Blue Eye Deer and no warranties are provided for actual looks and colours.
11.1 Rights & Responsibilities of the Client: Inclusions
11.1.1 The Client warrants that it has not relied on any representation made by Blue Eye Deer in providing any instruction to Blue Eye Deer and these Terms & Conditions constitute the entire agreement between the parties.
11.1.2 These obligations are continuing obligations.
11.2 No Warranties
11.2.1 Blue Eye Deer does not provide any warranty in respect of, nor accept any liability for, the performance or non-performance of any materials and/or services provided except to the extent required by law.
11.2.2 All warranties implied by law, custom or otherwise, are excluded to the extent permitted by law.
11.2.3 Any condition or warranty which would otherwise be implied in these Terms & Conditions is excluded to the maximum extent permitted by law, and the Consumer Guarantees Act 1993 will not apply to Services acquired, or where the Client holds themselves out as acquiring the Services, for the purposes of a business.
11.2.4 The Client warrants that the services and materials to be provided are fit for the purpose communicated to Blue Eye Deer and that the Client has relied on its own judgment as to the suitability of the purpose for which the materials and service are provided.
PRICING, QUOTATIONS, CHARGES & LEGAL COSTS
12. Development & Presentation Costs
12.1 Blue Eye Deer reserves the right to charge the Client for presentations in which Blue Eye Deer participates and for costs incurred in developing and presenting proposals on the standard charges and hourly rates charged by Blue Eye Deer for the work involved.
13. Charges for Interruptions & Corrections
13.1 Should Blue Eye Deer incur extra costs because of interruptions, delays, overtime, unusual hours or errors by any party or third party such extra costs will be added to the Price.
14. Change to Scope & Price
14.1 The Price is based upon the services referred to in the Quotation or Proposal or Estimate. If the Client requires the service of a product that is at variance to the service referred to in the Quotation or Proposal or Estimate, Blue Eye Deer reserves the right to amend the Price and/or the deliverables timetable.
14.2 If during the course of carrying out any instruction from the Client it becomes apparent that the scope and timing of performance of the instruction by Blue Eye Deer is required to be extended Blue Eye Deer may, by written notice to the Client, adjust the Price to reflect such variation at the normal hourly and/or other rates charged by Blue Eye Deer for the type of work involved.
15. Legal Costs
15.1 If the Client asks for legal reviews to form part of the services, Blue Eye Deer shall charge the Client for the cost of obtaining legal reviews of proposed concepts, designs and copy on behalf of the Client.
CREDIT CHECK INFORMATION & PRIVACY ACT
16. Credit Check Authorisation & Access
16.1 By providing an instruction and/or otherwise agreeing to these Terms & Conditions, you authorise Blue Eye Deer to obtain information from any source, including but not limited to credit bureaus and trade suppliers, in support of your credit application.
16.2 The information obtained will be held by Blue Eye Deer for the purpose of assessing your credit worthiness, both now and in the future, while these Terms & Conditions remain in force.
16.3 Should your request to provide instructions be declined, Blue Eye Deer does not need to supply a reason for declining to accept an instruction.
PAYMENTS & RECOVERIES
17. Invoices & Payments
17.1 Blue Eye Deer invoices clients for the work carried out and reserves the right to invoice as and when work is carried out for the client.
17.2 All invoices are due for payment when the invoice is raised, invoices shall be paid in full without any set-off and/or deduction unless by prior arrangement within 7 days of the date of each invoice or alternative pre-arranged payment terms.
17.3 CREDIT CARD/DEBIT CARD: If paying by credit card or debit card, Blue Eye Deer has the right to charge the Client a credit card fee.
18. Delay in Payment, Penalties & Defaults
18.1 Overdue Payment: Where money the Client owes to Blue Eye Deer under these Terms & Conditions remains unpaid after the date upon which it should have been paid ("Overdue Payment"), Blue Eye Deer has the right, in addition to any other rights at law, to charge the Client late payment fee costs on such Overdue Payments.
18.2 Overdue Payment - Penalty Period: The Period of Overdue Payment will start from the day following the date due, to and including the date upon which the money is paid to Blue Eye Deer.
18.3 Overdue Payment - Penalty Interest Rate: Where any payment is not made on the due date, then without prejudice to any other rights or remedies available, Blue Eye Deer may charge the Client late payment fee costs on such Overdue Payments at the Penalty Interest Rate, which will accrue daily and compound monthly.
19. Penalty Actions
19.1 Stop Credit: If the Client's account is operating outside of these Terms & Conditions, Blue Eye Deer may at its absolute discretion suspend the credit facility until such time as the account is operating within these Terms & Conditions.
19.2 Suspend Service: If the Client's account is operating outside these Terms & Conditions, Blue Eye Deer may at its absolute discretion suspend the service provided, until such time as the account is operating within these Terms & Conditions.
19.3 Termination: Notwithstanding the foregoing Blue Eye Deer reserves the right, upon notice, to terminate this agreement at its sole discretion. Termination shall be effective from the time Blue Eye Deer serves upon the Client notice of its intention to terminate the agreement.
19.4 There are no formal requirements of a notice under clause 19.3 other than those set out in clause 21 of this agreement.
19.5 Upon termination under clause 19.3:
(a) The Client will be liable to Blue Eye Deer for any payment in respect of work done by Blue Eye Deer;
(b) If the deposit provided by the Client to Blue Eye Deer exceeds the liability for work done, the balance of the deposit will be returned to the Client;
(c) Where the Client has no further liability to Blue Eye Deer under this agreement, Blue Eye Deer will provide the Client with all concepts, designs, files, final drawings, ideas as Blue Eye Deer (at its sole discretion) considers necessary for the Client to engage another provider to complete the work; and
(d) Where the Client remains liable to Blue Eye Deer under this agreement, Blue Eye Deer has the right to retain all material prepared for the Client until payment is made.
20. Default in Payment & Recoveries
20.1 At its discretion and for the purpose of effecting collection of any monies owing under these Terms & Conditions, Blue Eye Deer may forward details of defaults in payments to a recovery agency of its choice.
20.2 These details can include any amounts remaining outstanding and overdue for payment.
20.3 Should Blue Eye Deer utilise the services of a recovery agent, including but not limited to a debt collection company, private investigator, legal agent or solicitor, the Client undertakes to indemnify and make payment to Blue Eye Deer of all costs incurred, whether these costs be on a fixed or contingent basis, in regard to the collection of any monies owed by the Client.
20.4 If a decision is made by Blue Eye Deer to recover the costs using legal proceedings, these costs may at the discretion of Blue Eye Deer form part of the Statement of Claim, and be added to the amount owed on a solicitor-client and/or indemnity basis.
20.5 Currency: A reference to currency is a reference to New Zealand dollars.
20.6 Jurisdiction - Applicable Law: New Zealand law shall apply exclusively to the legal relations between Blue Eye Deer and the Client.
20.7 Legislation: A reference to legislation is a reference to that legislation as amended, re-enacted or replaced and includes any subordinate legislation or statutory instrument issued pursuant to that legislation as it may have been amended, re-enacted or replaced.
20.8 Consumer Guarantees Act 1993: Where you are a "business" as defined in The Consumer Guarantees Act 1993 and you are acquiring the services of Blue Eye Deer for the purpose of a business, The Consumer Guarantees Act 1993 does not apply.
20.9 Partial Invalidity: If a provision of these general Terms & Conditions is held to be invalid, the enforceability of the remainder of these Terms & Conditions shall not be affected.
20.10 Governing Law of Contract: All obligations arising out of instructions provided to Blue Eye Deer and/or these Terms & Conditions are subject to the laws of New Zealand and Blue Eye Deer and the Client submit to the exclusive jurisdiction of the New Zealand Courts.
20.11 Nouns, etc: Words importing persons include: individuals, partnerships, trustees, bodies (corporate or otherwise) or governmental or quasi-governmental departments, authorities or agencies. In these Terms & Conditions (except to the extent that the context otherwise requires) words importing the singular include the plural and vice versa, and words denoting any gender include all genders.
21.1 Any notice required to be provided to Blue Eye Deer can be delivered in person to the registered office of Blue Eye Deer.
21.2 Any notice required to be provided to Blue Eye Deer can be delivered:
(a) by post or in person to C/- Blue Eye Deer, B:hive Building, 74 Taharoto Road, Takapuna, 0622, Auckland, New Zealand.
(b) by email to [email protected]