1. Definitions

Confidential Information means all data and information exchanged between us in connection to the Services but excludes information: (a) which is in or which subsequently enters the public domain other than as a result of a breach of these Terms; (b) is known to the recipient prior to the date of its receipt; (c) which, at any time, is received in good faith by the recipient from a third party who has lawful possession of such information and a right to disclose the same;

Default Interest Rate means the relevant official cash rate + 10% per calendar month or as otherwise may be determined by us from time to time;

Deposit means any deposit that we may request from you that shall be payable to us in accordance with these Terms;

Digital Products means any digital content or material (such as website, app or tool) in electronic form produced by us as part of the Services;

Hardcopy Products means any content or material (such as posters, banners or signs) in hardcopy produced by us as part of the Services;

Price shall mean the cost of the Services payable by you in accordance with these Terms;

Products means all Digital Products and Hardcopy Products;

Intellectual Property Rights includes all copyrights and trade marks (if any) and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered or unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning;

Loss includes any direct, indirect or consequential loss of profits, savings, revenue or data, and any other claim, damage, loss, liability and cost, including legal costs on a solicitor and own client basis;

Personal Information means information about an identifiable, living person;

Project IP is solely limited to any copyright or trade mark that relates to the finalised Products and expressly does not include any other Intellectual Property created, developed, discovered, brought into existence as a result of the provision of the Services which shall remain our Intellectual Property;

Proposal means a written proposal that we may provide to you in respect of the Services that we intend to provide in accordance with these Terms;

Services means the services which we have agreed in writing to provide you (including all Products) or that are incidental to the completion of the above mentioned services;

Terms means these terms and conditions;

You means you or (if applicable) both you and the other person or entity on whose behalf you are acting;

We, us or our means Coast And Co Limited (NZBN 9429036686551) trading as “Coast & Co”; and

Website means coastandco.nz.

2. Acceptance

2.1 Acceptance of any instructions from you for the provision of the Services shall constitute acceptance of these Terms.

2.2 We may change these Terms at any time by updating them on the Website. Unless stated otherwise, any change takes effect immediately. You are responsible for ensuring that you are familiar with the latest Terms.

2.3 These Terms were last updated on 10 August 2022.

2.4 None of our agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by one of our directors in writing nor are we bound by any such unauthorised statements.

2.5 If we request a deposit from you, this will become payable upon your acceptance of our Proposal or in lieu of any Proposal, within 3 Business Days. We are not required to commence the Services until the Deposit has been received.

2.6 You agree that these Terms shall continue to apply until the earlier of the Services being completed in full or termination occurring under clause 13.

3. Services

3.1 We agree to provide the Services to you using the standard of care, skill and diligence that would reasonably be expected from an experienced provider of services that are similar to the Services within a reasonable timeframe.

3.2 If, at any time during the Term, we are unable or are likely to become unable, for whatever reason, to provide any or all of the Services, we will notify you in writing as soon as possible. Any timeframe provided by us for the provision of the Services shall be an estimate only and we shall not be bound to provide the Services by any such dates.

3.3 We have no obligation to provide any services to you that are in addition to the Services. The provision of any additional services shall be negotiated between us and in the absence of us providing you with a Proposal for those additional Services, you will be invoiced for those additional Services in accordance with clause 5.

4. Digital Products & Hardcopy Products

4.1 In respect of any Products provided to you, you acknowledge and agree that due to nature of sample digitals, variances in colour, scale and otherwise may occur between any samples (electronic or hard copy) that the finalised Products. You accept that variations may occur and that we are not liable to you for any such variations.

5. Price and Payment

5.1 Prior to the commencement of the Services we may provide you with a Proposal which shall include the Price payable for the Services.

5.2 Notwithstanding any Price that may be stipulated in any Proposal that we may provide to you, we will invoice you for the Services that we provide on an hourly basis for all time incurred in providing the Services. We will provide an invoice to you on the completion of the Services unless stipulated otherwise in the Proposal or any other written instructions.

5.3 In addition to the hours that we incur in providing the Services to you in accordance with clause 5.2, we will invoice you for all expenses, outsourced work and other disbursements (such as fonts, colour proofs, stock photography or artwork) that we incur in the provision of the Services. Such disbursements will be included in the invoice which we issue you under clause 5.2 unless agreed otherwise in writing. You acknowledge and agree that we reserve the right to apply a reasonable mark up on any disbursements that we incur on your behalf.

5.4 Unless stipulated otherwise on the relevant invoice, each invoice shall be payable on the 20th of the month following the month in which the invoice was issued without any offset or deduction. Each invoice shall be issued inclusive of any GST payable.

5.5 If you owe us any outstanding amounts payable under these Terms then we may (at our sole discretion):

(a) withhold the release / publication of any Products until we have received the Price in full from you; and/or

(b) cease providing the Services until such a time that we receive the Price in full from you.

5.6 Invoices must be paid in accordance with this clause 5 even if you dispute an amount owing under that invoice.

6 Your obligations

6.1 During the Term, you agree that:

(a) We may (from time to time) require clarification of matters or further information to enable us to provide the Services. You agree to assist us in providing the requested information in a timely and collaborative manner.

(b) Any content forming part of the Products that you approve will be deemed to be acceptable to you and we are not responsible to you for any errors or omissions that may be present in that approved content.

(c) If you choose not to review / approve any content forming part of the Products that we provide to you for your review / approval then we are not responsible to you for any errors or omissions that may be present in the relevant Products.

(d) You accept responsibility for the accuracy of the content that has been reviewed by you and that following review and approval by you, we accept no responsibility for any inaccuracies, errors or omissions within that approved content.

(e) If you nominate (in writing) any person to be the point of contact between you and us for the provision of the Services then you agree that that person shall have full authority to provide instructions to us / accept our Services on your behalf (unless limited authority is provided in writing) until such a time that that nomination is revoked in writing by you.

(f) If you request any amendment to the content which we provide to you for approval then you must approve (in writing) those amendments before we will progress the Services.

(g) If we request information from you then (where applicable) you shall provide that information in the requested electronic format. If you do not provide that information in the requested format then you acknowledge that:

i. we will charge you for the time that we incur in converting the information into the appropriate format; and

ii. we will not be responsible for any error or omission of the information that occurs from us converting this information,

(h) Where materials or equipment (either electronic or hard copy) are supplied by you for the completion of Products we accept no responsibility for defects in any Products caused by unsuitability of such materials or equipment.

(i) We are not responsible for any Loss to you that may arise out of or in connection to you:

i. not providing us with accurate or true information; or

ii. not providing us with information that we have requested in a timely manner.

7 Limitation of liability

7.1 To the maximum extent permitted by law, we shall have no liability to you whatsoever for Loss suffered by you or any other person arising out of any act or omission by us in the provision of the Services or under these Terms.

7.2 To the maximum extent permitted by law and only in the event that clause 7.1 does not apply, out total liability to you under or in connection to the Services which we have provided to you and/or the Terms shall not exceed the total value of the Services which we have provided to you and for which we have received full payment.

8. Disclaimer

8.1 To the maximum extent permitted by law, we have no liability to you or any other person for any Loss in connection with:

(a) any error in, or omission from, any information included in the Products; or

(b) any of our Services (including the Products) not being fit for purpose or appropriate.

8.2 While we endeavour to adopt security measures that would be commonly accepted for our Industry for our applications and the storage of our data (which may include Your Information) you acknowledge and agree that we will not be liable for any Loss in connection with any of our servers, data, underlying system or the Website being hacked by a third party.

9. Personal Property Securities Act 1999 (“PPSA”)

9.1 You agree that:

(a) these Terms constitute a security agreement for the purposes of the PPSA; and

(b) a security interest is taken in all Digital Products and Hardcopy Products (and proceeds therefrom) and/or all Services that have been provided but not paid for.

9.2 You undertake to:

(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which we may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;

(b) indemnify, and upon demand reimburse us for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby;

(c) not register a financing change statement or a change demand without our prior written consent.

9.3 You agree:

(a) that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms;

(b) to waive any rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA;

(c) to waive any right to receive a verification statement in accordance with section 148 of the PPSA;

(d) to unconditionally ratify any actions taken by us under this clause 9.

10. Intellectual property

10.1 Subject to clause 10.2, you agree that nothing in these terms constitutes a transfer of our Intellectual Property Rights to you.

10.2 We acknowledge and agree that upon payment for our Services (to which the Project IP relates) you shall have title to that Project IP. For avoidance of doubt, title to Project IP shall not be transferred until such a time when we have received payment for the relevant Services.

10.3 You agree not to distribute, transmit or resell any of the Intellectual Property arising from the Services (including the Project IP) to any third party without our prior written consent.

10.4 Upon transfer of the Project IP in accordance with clause 10.2 you authorise us to utilise images / materials from the Project IP for advertising, marketing, or competition purposes.

10.5 You shall permit us to place a small credit on the design, printed material, exhibition displays, advertisement and/or link to the Website, which shall usually be in the form of a small logo or line of text placed in a discrete position such as the bottom of the page or design.

10.6 Where you provide content or information to us for our use in providing the Services you:

(a) warrant that you have ownership of or have been granted a licence to use all intellectual property and/or proprietary interest in such content; and

(b) such content does not breach any patent, trademark, design or copyright, and you agree to indemnify us against any action taken by a third party claiming a breach contemplated under this clause,

(c) indemnify us against any Loss that we may suffer or incur as a result of any breach of the warranties you have provided under this clause.

11. Consumer Guarantees Act 1993

11.1 You acknowledge and agree that you are acquiring the Services for the purposes of a trade or business and that the provisions of the Consumer Guarantees Act 1993 do not apply to these Terms or the provision of the Services.

12. Default

12.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due until the date of payment at the Default Interest Rate and shall accrue at such rate after as well as before any judgment.

12.2 If you default on payment of any invoice when due you shall indemnify us from and against all costs and disbursements incurred by us in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, collection agency fees and bank dishonour fees).

13. Termination

13.1 Either party may cancel these Terms by providing not less than 20 Working Days written notice to the other party that where you cancel these Terms under this clause, all monies payable by you under these Terms are paid in full up until the date of termination.

13.2 We shall have the ability to terminate these Terms on written notice (effective immediately) upon the occurrence of any of the following events:

(a) you are in default on payment of an invoice due under these Terms for more than 10 Working Days;

(b) you become insolvent, convene a meeting of your creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed.

13.3 Upon the expiry of the Term or termination under clause 13.1 or 13.2, we agree to make information and content that you have provided to us for the provision of the Services (“Your Information”) available to you not less than 20 Business Days following the date of termination. Your Information will be provided to you in an “as is” format and we take no responsibility for the reliability or accuracy of Your Information. Regardless of whether you have accessed Your Information or not we may destroy it upon the expiry of the 20 Business Days following the date of termination. You acknowledge and agree that we shall have the ability to charge you a reasonable fee in retrieving / making available Your Data and that fee shall be payable prior to you being provided with Your Data.

13.4 If upon termination you owe us any outstanding monies then you acknowledge and agree that:

(a) we will have no obligation to make Your Information available to you in accordance with clause 13.3; and

(b) we will retain title to any Project IP where you have not paid us for the relevant Services.

14. Privacy policy

14.1 When you provide personal information to us, we will comply with the Privacy Act 2020 and our privacy policy which is available www.coastandco.nz/privacy-policy.

15. Confidentiality

15.1 We agree to only use and reproduce Confidential Information you provide to us to perform the Services and shall not, without your prior written consent, disclose to any third party or use that Confidential Information for any other purpose except if we are required by law to disclose.

15.2 You agree to not disclose any Confidential Information that we may provide to you (for whatever reason).

15.3 Confidential Information will remain the property of the party supplying the Confidential Information (or any part of it) and must be returned to the supplying party on termination or expiry of these Terms.

16. General

16.1 Our failure to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect our right to subsequently enforce that provision. If any provision of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

16.2 These Terms and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the courts of New Zealand.

16.3 We may assign or sub-contract all or any part of its rights and obligations under these Terms without your consent.

16.4 Neither party shall be liable for any default due to fires, explosions, severe weather, industrial disputes, insurrection, requirements or regulations, or any civil or military authority, acts of war (whether declared or not), civil unrest, acts of God, earthquake, flood, riot, embargo, government act, strike, pandemic, lock-out, storm, terrorism, or failure or outage of any connections which are beyond the reasonable control of either party.

16.5 You shall not have the right to assign all or any of your interests under these Terms (and any corresponding Proposal) without first obtaining our written consent to that assignment.