Picturebook – Terms and Conditions
The client engages the PICTUREBOOK to provide the following design works/home staging and the designer accepts engagement on the following terms and conditions:
PICTUREBOOK designers will provide design work in accordance with a reasonable standard of skill, care, and responsibility and subject to any constraints such as financial, physical, time or other imposed by the client
Changes to any design work must be approved in writing. Where changes are to be made by the client and where conditions or external project issues require the designer to make urgent decisions – the client will be notified.
Quotations, delivery of projects, freight or supply will be estimated only and therefore the client shall not terminate projects or claim remedies as a result
The client agrees to:
- Provide a full and extensive project brief
- To work with the PICTUREBOOK designers and home stagers in good faith and take part in any resolve
- Not to purchase goods and services provided by PICTUREBOOK unless otherwise agreed by both parties and not to attempt to source or to source goods or services directly from the suppliers/manufacturers of PICTUREBOOK.
PICTUREBOOK is entitles to place signage on an agreed location of the given project.
PICTUREBOOK will stage the given client home or location in good faith. Any damages to items of PICTUREBOOKs’ will be billed to and paid for by the person that holds the contract with PICTUREBOOK
LICENCE GRANTED TO CLIENT
PICTUREBOOK grants the Client a licence to use the Design Works for the nominated Project only. This licence permits the Client to use the Design Works to create one (1) derivative work only.
CONDITION OF AGREEMENT
PICTUREBOOK have the right (by mutual agreement) to photograph and or use the given project in industry competition and or for promotional purposes such as the Picturebook.nz website and social media pages.
PICTUREBOOK guarantee services and products provided and should any product be provided with defects the client must notify PICTUREBOOK immediately.
INTELLECTUAL PROPERTY RIGHTS
(a) All Intellectual Property Rights in the Design Works (except for any pre-existing Intellectual Property Rights in materials supplied by the Client) shall remain the property of PICTUREBOOK. PICTUREBOOK does not accept commissions to create copyright works other than to agree to licence Design Works developed and selected by PICTUREBOOK for delivery to the Client. This overrides section 21(3) of the Copyright Act 1994 in accordance with section 21(4) of that Act.
(b) The Client warrants that it owns or is lawfully authorised to use any pre-existing Intellectual Property Rights in materials supplied by the Client to PICTUREBOOK and that PICTUREBOOK is fully entitled to use those materials without restriction, for the purposes of the Agreement and It will ensure that the Design Works are not altered in any way, at any time, without prior written consent from PICTUREBOOK.
PRIVACY AND PERSONAL INFORMATION
PICTUREBOOK business and staff will abide by the Privacy Act 1993 and shall take all practical steps to achieve privacy protection.
FEES AND PAYMENT
- The Client shall pay PICTUREBOOK Fees on the due date specified on the invoice, or if there is no date specified, within seven (7) days of invoice. In some cases where custom made items are required, the payment terms may differ, refer to client individual job terms and conditions, as part of the PICTUREBOOK quotation process. (Note: Some jobs require a 50% deposit or full 100% payment prior to an order being processed)
- PICTUREBOOK may invoice the Client for Fees periodically, or at the outset or completion of a Project phase, or as the Project progresses and in the manner stipulated under the Proposal.
- Any queries regarding Fees upon receipt of an invoice shall be raised by the Client within seven (7) working days. Failure to do so will be considered a waiver by the Client of any claim it may have against PICTUREBOOK (in contract, tort (including negligence), equity or otherwise) in relation to the same.
- Where the Fee is calculated on a quote, estimate or fixed-fee basis, the Fee is subject to reasonable upward adjustment in the event that: After the Agreement is entered into, the Client changes the scope of the Design Works required; or After completion and approval of any Project phase, the Client instructs PICTUREBOOK to alter the Design Works supplied; or In the event that the supply price for Goods or freight increases after estimation but before supply, PICTUREBOOK reserves the right to adjust the price payable by the Client.
- Payments made with a credit card will incur a 2.5% service fee, American express is NOT excepted
PICTUREBOOK shall endeavour to provide advance notice of variations.
Any monies not paid in full may be charged with interest at a rate of 5% per month or part month overdue, and PICTUREBOOK is, in addition, entitled to recover all debt collection costs and related legal expenses (on a solicitor/client basis).
In the event any monies due are not paid in full on any design work or staging, PICTUREBOOK reserves the right to immediately suspend further work for the Client. If Design Works are suspended, PICTUREBOOK shall not be obliged to resume services until the amount owing, and any costs incurred in relation to the suspension, are paid in full and PICTUREBOOK has adequate security for future Fees. PICTUREBOOK will not be liable to the Client or any person for losses arising from suspension of the design work (or staging).
Staging works are to be paid in full prior to in home/commercial staging takes place.
Any monies paid may be allocated by PICTUREBOOK to any amount owed by the Client.
Title to Goods passes when PICTUREBOOK receives full payment. Until full payment, PICTUREBOOK reserves all ownership rights to the Goods
MARGINS AND COMMISSIONS ON GOODS
PICTUREBOOK shall endeavour to obtain Third Party Goods for the Client at discounted trade prices, made possible due to relationships that PICTUREBOOK has built with third party suppliers over many years. PICTUREBOOK may retain a proportion of the supplier discount (or impose a margin). From time to time or as suppliers allow discounts for goods purchased via PICTUREBOOK may be passed onto client projects.
In addition, from time-to-time PICTUREBOOK may receive commissions, rebates and other benefits from suppliers. The Client agrees that PICTUREBOOK may retain these benefits.
(a) Either party may raise a dispute by notice in writing to the other party. The parties agree to use their best efforts to resolve any dispute which may arise under the Agreement through good faith without-prejudice negotiations.
(b) If after five (5) Working Days, the parties have not reached an agreed outcome, they shall cease discussions for two (2) Working Days before resuming discussions.
(c) If, after a further discussion period of five (5) Working Days, the parties remain unable to reach an agreed outcome, the parties may take such further steps as they choose.
The Client undertakes to indemnify PICTUREBOOK against any and all loss, damage, liability or expense (including costs on a solicitor-client basis):
(a) Suffered or incurred because of any breach by the Client of the Agreement or in recovering any moneys due; and
(b) Arising out of a claim by a third party against PICTUREBOOK alleging that the Design Works (excluding original material developed solely by PICTUREBOOK) infringes any third-party Intellectual Property Rights, and such loss, damage, liability, or expense shall be moneys due under the Agreement.
The Client may terminate the Agreement at any time by giving four (4) weeks written notice and paying all Fees and costs owed. Upon receipt of such notice from the Client, PICTUREBOOK must take all reasonable steps to bring the Design Works to a close.
Termination for Cause
Without prejudice to any other right or remedy it may have, whether under the Agreement, under statute or otherwise, either party may immediately terminate the Agreement by written notice to the other party if:
(a) The other party is in breach of any term of the Agreement and such breach is not remedied within ten (10) Working Days of notifying the other party.
Where delivery occurs before payment, the parties agree that:
- (a) PICTUREBOOK has a registrable first-ranking security interest (for the purposes of the Personal Property Securities Act 1999 (“the PPSA”) in the Goods and their proceeds to secure payment including all Fees and other amounts due from the Client from time to time.
(b) Nothing in Sections 114(1)(a), 133 and 134 of the PPSA shall apply to the Agreement. The Client waives its rights pursuant to section 121, 125, 129, 131 and 132 of that Act and its rights to receive any verification statement relating to the security interests in the Goods; and
(c) The Client shall ensure that the Goods are fully insured (replacement value) and that PICTUREBOOK is recognised as an additional insured on the insurance policy, until all Fees for the Project are paid in full.
THIRD PARTY GOODS
- Unless otherwise expressly agreed in writing, PICTUREBOOK does not provide any warranties for Third Party Goods sold, supplied, or arranged by PICTUREBOOK, and shall not be bound by nor responsible for any term, condition, representation, or warranty applicable to the Third-Party Goods. The Client acknowledges and agrees that:
It relies solely on the manufacturers or provider’s warranty (if any);
If Third Party Goods are delivered directly to the Client by the manufacturer or provider, the Client shall be solely responsible for the thorough inspection and acceptance of those Third-Party Goods on delivery. Third Party Goods which are inspected and found to be damaged or defective shall be rejected by the Client. PICTUREBOOK shall not be liable for:
The inspection of Third-Party Goods which are delivered directly to the Client by the manufacturer or provider; or
Failure by the Client or their nominee to thoroughly inspect (and where necessary, reject) Third Party Goods in accordance with this clause.
The Client acknowledges and agrees that PICTUREBOOK may require:
100% payment in advance for ordering Third Party Goods, payable by the Client within seven (7) days of invoice. Payment of that invoice shall constitute confirmation of the order for the Third-Party Goods.
PICTUREBOOK shall not be liable for any loss or damage arising directly or indirectly due to an act of God, fire, armed conflict, labour disputes, civil commotion, intervention of a government, accidents, interruption to transportation, delays, or non-performance by third party suppliers, weather or any other cause outside the PICTUREBOOK’s control.
- The Consumer Guarantees Act 1993, or equivalent legislation, may apply to the Design Works provided by PICTUREBOOK if the Client acquires the Design Works for personal, domestic, or household use or consumption. If this Act applies, nothing in the Agreement will limit or exclude the Client’s rights under that Act.
- If the Client is acquiring the Design Works for business purposes, then the Client’s rights are subject to the Agreement only and the Consumer Guarantees Act 1993 shall not apply.
PICTUREBOOK shall not be liable for:
Any loss or damage arising by reason of any delay in the completion or delivery of the Design Works and Goods; or any loss of profits; or any indirect or consequential loss of whatever nature; or any loss resulting from any errors or omissions arising from incorrect information provided by the Client, or failure by the Client to provide information, or an oversight or a misinterpretation of a client’s verbal instructions.
- PICTUREBOOK may engage the services of reputable contractors to assist in completing the Design Works.
- Where PICTUREBOOK engages contractors at the Client’s request, PICTUREBOOK be acting as the agent of the Client, and is not liable for the performance or remuneration of those contractors.
The Proposal, together with these Terms & Conditions and all attachments, constitute the entire agreement (“Agreement”) between the parties and supersedes all prior representations, agreements, statements, and understandings, whether verbal or in writing, on the subject matter of this contract.
If any provision of the Agreement is held invalid, unenforceable, or illegal for any reason, the Agreement shall remain otherwise in full force and effect apart from such provision.
HEALTH AND SAFETY
If PICTUREBOOK is present on the Client’s or other third party’s premises for the purpose of the Design Works:
(a) The Client shall promptly notify PICTUREBOOK of any health and safety policies in place on those premises; and
(b) PICTUREBOOK shall always comply with all reasonable health and safety requirements and safety-related instructions provided by the Client.
PICTUREBOOK has not and will not during or after the term of the Agreement assume any obligation, as the Client’s agent or otherwise, which may be imposed on the Client under the Health and Safety at Work Act 2015, and the parties agree that PICTUREBOOK will not be deemed to be a PCBU or an officer of the Project under that Act.
This Agreement shall not be assigned or transferred without the prior written consent of PICTUREBOOK.
This Agreement shall be construed in accordance with and governed by the laws of New Zealand and the Parties submit to the non- exclusive jurisdiction of the New Zealand courts in respect of all matters relating to the Agreement.
Currency amounts are in New Zealand dollars unless otherwise stated, and all communications between the parties must be in English.
Nothing in the Agreement shall be construed as evidence of a partnership between the parties or their successors or assigns, and no provision of the Agreement shall empower a party to act on behalf of the other in any way, or to incur any liability on behalf of the other.
If there is a conflict between the Proposal and any provisions of these Terms and Conditions, the Proposal shall take precedence.
Notices under the Agreement can be delivered in person, or by email to the addressed notified in the Proposal (which may be updated from time to time by each party)
DEFINITIONS OF CAPITALISED WORDS
In these Terms and Conditions, the following meanings apply: “Agreement” has the meaning of legal binding arrangement between parties as to a course of action
“Client” means the client listed in the Proposal.
“Design Works” means the design services and design documentation to be provided by PICTUREBOOK as detailed in the Agreement;
PICTUREBOOK means the designer listed in the Proposal;
“Fee” means the total fee payable by the Client in consideration for the Design Works, Goods, staging and associated rights as detailed in the Agreement.
“Goods” means all goods (including Third Party Goods) supplied by PICTUREBOOK, including goods listed in the Proposal.
“Intellectual Property Rights” means any patents, copyright, designs, and any other right granted by the operation of law which confers protection on any written or artistic work created by intellectual effort and all associated intangible assets created as a by-product.
“Project” means the project described in the Proposal;
“Property” means the physical Project works completed using (partially or wholly) the Design Works;
“Proposal” means an estimate, engagement letter, proposal or statement of work provided by PICTUREBOOK, setting out the Design Works and Goods to be supplied;
“Third Party Goods” means all Goods and services manufactured or provided by persons or entities other than PICTUREBOOK;
“Working Days” means days other than Saturday, Sunday, public holidays, or days from 23 December – 6 January (inclusive).
WAIVER OR VARIATION
No right or obligation under the Agreement shall be deemed to be waived except by notice in writing signed by each party.
The provisions of the Agreement shall not be varied, except by agreement in writing signed by the parties.
SURVIVAL OF AGREEMENT
The covenants, conditions and provisions of the Agreement which can have effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.