TERMS OF SERVICE

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These Terms

Threethirds Limited (“Threethirds”, “us”, “we”, “our”) agrees to provide you with the Services on the basis that you comply with these terms of service (“Terms”).  If you are not willing to comply with these Terms, you must advise us immediately.  If we don’t hear from you within 48 hours of sending you the Terms, we will take this as your acceptance of the Terms.

 

These Terms replace any earlier terms (whether verbal or in writing), are subject to change at any time with immediate effect and you agree to be bound by any replacement Terms.  Threethirds is not required to provide you with notice that the Terms have changed and you can request a copy of the most current Terms from Threethirds at any time. 

 

In these Terms:

• a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

• a reference to a party includes its successors or permitted assigns;

• any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms;

• a reference to writing or written includes faxes and e-mails.

 

The Services

Threethirds is a graphic design company that helps you communicate ideas to inspire, inform and captivate.  We create visual design concepts using graphic design driven software and can cater to a variety of requirements, whether they relate to print, web or interactive means.  The services you have engaged Threethirds to carry out are those noted in the Quote or if no Quote has been provided, those services that have been agreed in writing between the parties (“Services”).  You agree Threethirds shall have the right to make any changes to the Services which are necessary to comply with any applicable law, or which do not materially affect the nature or quality of the Services, and Threethirds shall notify you in any such event.

 

Variations

You may request that variations be made to the Services (“Variations”). If this occurs after you have accepted the Services, Threethirds is entitled to adjust the Quote, or any other fee estimate provided, to cover the cost of any additional work required to carry out the Variations.  You agree to make payment for all Variations and are aware that Variations may also delay any completion timeframe provided by Threethirds.

 

Quotes

Fee estimates or quotes can be provided upon request and will include a description of the Services covered by that fee estimate or quote (“Quote”).  In some circumstances, a Quote will be provided within email correspondence between the parties.  Unless stated otherwise, quoted prices are exclusive of GST, and are valid only for the time stated on the Quote, or if no time is stated, on the date of Quote only.  Where any Quote is based on an estimated quantity of materials, the final price will be adjusted according to the actual amount of materials used.  By continuing to communicate with Threethirds in respect of the Services after your receipt of the Quote, this indicates your acceptance of the Terms and the Quote and creates a legally binding contract under which you agree to pay for the Services.  If Threethirds is required to purchase a third party licence to complete the Services, Threethirds may pass this cost onto you, in addition to the Quote.

 

Payment

Upon completion of the Services, Threethirds will send you an invoice stating the total balance due (“Invoice”). You are required to pay the Invoice on or prior to the date stated on the Invoice. Payments can be made by electronic bank transfer to the account noted on the Invoice. You are responsible to for all fees related to paying the Invoice including bank fees and exchange rate currency fees (where relevant).

 

If for any reason, you do not pay the Invoice within the timeframe specified on the Invoice, Threethirds reserves the right to charge interest on the outstanding balance at the rate that is 5% per annum above the current overdraft rate charged Threethirds’ bank.  Threethirds also reserves the right to charge you recovery fees and costs associated with overdue Invoices.

 

In the event that payment is not received within the timeframe specified on the Invoice, Threethirds reserves the right to immediately discontinue the Services, in which case Threethirds is required to provide you with any design work carried out prior to the discontinuance date, unless and until the Invoice is paid in full.

Deposits

Threethirds may require a deposit from you, in which case this will be specified on the Quote.  All deposits are non-refundable and must be paid prior to the Services commencing.  Deposits are required to provide assurance that payment of the Services will be made and any deposit paid is made in part payment of the Services. 

 

Timeframes

Work on the Services will begin as soon as is practicable after you indicate your acceptance of Quote and make payment of the deposit (if required).  Threethirds shall use all reasonable endeavours to meet any indicative performance dates specified in the Quote, however such timeframes are estimates only.  For the avoidance of doubt, time shall not be of the essence for performance of the Services.  If you request that work is carried out with urgency, Threethirds reserves the right to charge you an additional “urgency” fee, which may not be stated in the Quote.  The fee will be determined at Threethirds sole discretion depending on the nature of the work and the level of urgency required.

 

If Threethirds is unable to communicate with you for an extended period of time, whether by phone or by email, the Services will be put on hold and any previously agreed timeframes or deadlines will be null and void and will need to be reassessed upon resumption of communication.  If for any reason there is non-communication from you or a change in your circumstances that results in the termination of the Services, you agree to pay in full for any time spent on the Services by Threethirds (to be determined at Threethirds’ sole discretion).

 

Proofs

When carrying out the Services, Threethirds may send you design work to check before it is finalised (“Proof”).  It is your responsibility to ensure the details contained in the Proof are correct (including spelling of names, punctuation and grammar, contact details and information relevant to your business).  Threethirds is not liable for errors where a Proof has been submitted to and approved by you.  Threethirds is not responsible for checking the accuracy of any information or data provided to it by you.  Threethirds provides no guarantee that production prints will match colour Proofs.

 

Intellectual Property

The Services may be protected by copyright, trademark and other intellectual property laws of New Zealand.  All intellectual property associated with the Services is the ownership of Threethirds until you have paid all Invoices in full. You acknowledge and agree that Threethirds is entitled to use any documents, designs, drawings or other images produced by Threethirds as part of the Services for marketing purposes and in doing so, Threethirds is not required to obtain any form of consent from you.  All proposals, experimental work, preliminary sketches and other creative work carried out by Threethirds as part of the Services (“Preliminary Work”) which does not form part of the final design elected by you remains the intellectual property of Threethirds.  You are not entitled to use any Preliminary Work unless an additional fee is paid by you for that Preliminary Work (such fee to be determined at Threethirds’ sole discretion).

 

Claims

If you are not satisfied with the Services, you can advise Threethirds in writing within 10 days of receipt of the final product created as part of the Services.  Beyond this time, a claim may not be recognised.  In the event that Threethirds receives a claim from you, the parties will use their best endeavours to negotiate a resolution in good faith.  In making a claim, you will keep in mind that design work is subjective and that Threethirds has used its best endeavours to understand your requirements and create a design that fits your brief.  If Threethirds has completed the Services in accordance with your brief (to be determined at Threethirds full discretion), you are responsible for payment of all Invoices in full.

 

Termination

Either party may terminate the Services by giving written notice to the other party, in which case Threethirds must be adequately compensated for any work carried out on the Services (or materials acquired) prior to termination, such value to be determined at Threethirds’ sole discretion.  If you suspend the Services for a period exceeding 60 days, Threethirds is entitled to payment in full for the portion of the Services carried out (such value to be determined at Threethirds sole discretion).

 

Personal Information

We may use any personal information that you supply for credit, administration, service and marketing purposes. You have the right of access to, and to ask for correction of, any personal information. You authorise any person or company to provide us with any information we may require in response to your application for credit and other enquiries, and you authorise us to search the Personal Property Securities Register for any information about you or (in the case of a company) your parent or associated company.

 

Electronic Information

Upon completion of the Services, Threethirds may provide you with electronic copies of the work completed, in which case it is your responsibility to store and save that information.  Threethirds cannot guarantee that the work will always be available upon request (i.e. due to technical errors resulting in loss of information).

 

Indemnity and Warranty

You agree to indemnify and hold harmless Threethirds from and against any and all proceedings, claims, damages, losses, expenses, liabilities, actions of any kind (including negligence) which Threethirds may incur or sustain as a direct or indirect result of or in connection with the use of any information, representation, reports, data or materials supplied to it by you.

 

Threethirds shall under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Services or these Terms.  Threethirds’ total liability to you in respect of all other losses arising under or in connection with the Services, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the Services set out in the quote.

 

No warranty is offered by Threethirds in respect of the quality, performance and any experience expected by you in relation to the provision of the Services.   You acknowledge that the limitations and exclusions contained in these Terms are reasonable and if they had not been included, the cost for the Services would have been increased significantly.

 

No Assignment

You cannot assign, whether in writing or orally, or encumber your rights or obligations under these Terms or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of Threethirds.

 

Relationship of the parties

No agency, partnership, joint venture or employer – employer relationship ois intended or crated by these Terms. Neither party is authorised to act as agent o r bind the other party except as expressly stated in These Terms.

 

Dispute Resolution

In the event a dispute arises between the parties, the parties shall first attempt to resolve the dispute by negotiation between the parties. If the parties are still unable to resolve the dispute, the parties shall apply to the Disputes Tribunal for resolution.

 

Severability

Each provision of these Terms shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of these Terms is held invalid or unenforceable, the remainder of the Terms shall remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.

 

Force Majeure

Threethirds has no liability for any lack of performance, unavailability or failure of the Services, or for any failure of Threethirds to comply with these Terms where the same arises from any cause reasonably beyond the control of Threethirds.

 

No Waiver

If Threethirds does not exercise or enforce any right available to us under these Terms, it does not constitute a waiver of those rights.

 

Partial Invalidity

If any provision of these Terms becomes or is held to be invalid, unenforceable or illegal for any reason, and in any respect, that provision shall be severed from the remaining Terms, which shall continue in full force and effect.

 

Governing Law

These Terms are governed by the laws of New Zealand.

 

Entire agreement

These Terms supersede all previous conditions, understandings, commitments, agreements and representations whatsoever whether oral or written, and constitutes the entire agreement, between the parties, relating to the subject matter of these Terms.

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Updated October 2019

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