Terms & conditions.
General
THE FOLLOWING TERMS constitute an agreement (the “Agreement”) between you as the (“User”/”Client”) and Formation Creative, (“we”, “us”) and contain the terms and conditions that apply to your access and use to The Services provided by Us.
Please read the below terms carefully. By engaging Formation Creative, you agree to our Terms and Conditions. The Terms and Conditions herein will be valid and binding as of the date of accepting an estimate or quote and will continue to be valid and binding until both the Client and Formation Creative agree that services of Formation Creative are either complete or no longer required. The below conditions will apply to all individuals, businesses or companies (“Client”) who engages the services of Formation Creative, its contractors or subcontractors unless otherwise agreed in writing by both parties.
GENERAL PAYMENT
Payment of services and/or products will be in New Zealand Dollars (NZD) via internet bank transfer or cash. All invoices are payable within thirty (30) days of receipt. An additional fee, of 10% (of the total project fee), is payable on all overdue balances after five (5) days following the due date. Invoices shall list any expenses and additional costs as separate items.
WEBSITE SPECIFIC PAYMENTS
An initial payment of 33% (one-third of the total project fee) for any website build is due before any design work begins. Final payment is due before any digital files or site is launched.
PROPOSAL
Quotations for services with Formation Creative are generated on the basis of the brief provided by the Client and expected time investment by Formation Creative and may change if additional work is required. Quotes provided are valid for thirty (30) business days, whereby following the expiry of such date, Formation Creative reserves the right to amend prices. No quoted service delivery dates are guaranteed and can vary.
COMMENCEMENT AND TERMINATION
This agreement shall begin when the client accepts a quote, and (where applicable) pays the corresponding deposit invoice for a Formation Creative service and shall continue until all services are complete and delivered, or until the agreement is terminated. Either party may terminate this agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it. In the event of termination, the Client shall pay Formation Creative for all services performed through the date of termination in the amount of a prorated portion of the fees due. For clarity purposes halfway (50% of a project) would be the website has all pages created, a placeholder (or signed-off images) are in, and content is added.
DELAYS
The client shall use all reasonable efforts to provide needed information, materials and approvals. Any delay by the Client will result in a day-for-day extension of the due date for all deliverables. Any delay caused to conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension of any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of the agreement, power failure, fire, flood, acts of god, labour disputes, riots, acts of war, terrorism and epidemics.
TECHNOLOGICAL ADVANCEMENTS
The Client is to refer to hosting and domain name providers for queries regarding the following services: Domain names, Hosting and registration, SSL certificates, Email addresses and Email hosting. The Client is to refer to their technical support company for queries regarding the following services and their applicable Terms & Conditions: Set up of email addresses, Emails going to Spam/Junk, Email not functioning and Email Signatures. Formation Creative holds no responsibility if: (a) your email addresses are targeted with spam as it is outside of our control or (b) the Client’s email account details are obtained and used to send spam or malicious material. Formation Creative builds and designs websites to the best of their knowledge at the time of completion. We shall not take responsibility if the Client’s site is “hacked” or maliciously attacked in form. Formation Creative will not be held responsible and is not liable for any loss of income to arise from the Client’s website “going down”, being hacked or otherwise.
DESIGN
The Client agrees to allow: (a) Formation Creative to add a small credit on the Client’s website. This will be in the form of a small line of text, and will be placed towards the bottom of the web page; (b) Formation Creative to place its designs and work, along with a hyperlink to the Client’s site on Formation Creative’s own website for self-promotional services, unless agreed to the contrary in writing by both parties. The Client understands that Formation Creative does not take any responsibility for Trademarking of any kind and that it is the Client’s responsibility to check trade-marking laws and existing Trademarks for availability.
For logos, Formation Creative will provide the Client with three (3) rounds of minor refinements at no extra cost for the Client for review. Minor refinements include colour changes, font swapping between concepts or a minor font change (to another style as mentioned in the brief), changes to size or hierarchy, and adding or removing a graphic element. Request for minor changes is to be made via e-mail. Formation Creative will presume that the Client has accepted the original draft with no changes if no emails requesting changes were made within fourteen (14) days of the commencement of the review period.
For website designs, Formation Creative will provide the Client with three (3) rounds of minor refinements at no extra cost for the Client for review. Minor refinements include colour changes, font changes, switching out images, textual changes, small alterations to the arrangement of elements on the website, changes of images. Minor refinements do not include adding extra pages, custom CSS, third party plugin integration, extra content uploads that were not originally covered under the original project brief. Request for minor changes are to be made via e-mail. Formation Creative will presume that the Client has accepted the original draft with no changes, if no emails requesting changes were made within fourteen (14) days of the commencement of the review period.
CHANGES TO PROJECT SCOPE
If the Client wants to change the scope of work after acceptance of this agreement, client shall send Us a written change order (detailed, in one email) describing the requested changes in detail. We will then respond with a statement proposing availability, additional fees, changes to delivery dates, and any modification to the terms and conditions. We will evaluate each change order at its standard rate and charges. The Client will be billed on a time and materials basis at Formation Creative’s hourly rate as per the estimate or quote. Such charges shall be in addition to all other amount payable under this agreement, despite any maximum budget, contract price or final price identified. Formation Creative may extend or modify any delivery schedule or deadlines in the agreement as may be required by such changes. Client will have fourteen (14) days to respond in writing accepting or rejecting the new proposal. If client rejects the proposal, designer will not be obligated to perform any services beyond those in the original agreement.
If the proposal for the amended project scope from Formation Creative is rejected by the Client, Formation Creative is not obliged to perform any services beyond those in the Original Agreement. Formation Creative reserves the right to extend or modify any delivery schedule or deadlines in the agreement as may be required by such changes.
RUSH SERVICES
If the Client requires design work expedited (outside of project scope and agreed upon time frames), Formation Creative will try to accommodate, but please know that good design cannot be rushed. We have other clients booked in that have paid for our time and their spot in the queue, and We will need to be financially compensated for working overtime.
EVALUATION AND ACCEPTANCE
Client shall, within ten (14) business days after receiving each deliverable, notify Formation Creative in writing of any failure to comply with the specification of the project proposal or of any other objections, corrections or changes required. Formation Creative shall, within fourteen (14) days of receiving client's notification, correct and submit a revised deliverable to client. Client shall, within fourteen (14) days of receiving a revised deliverable, either approve the corrected version or make further changes. If after three (3) refinements or corrections by us, you as the client finds the deliverables not satisfactory between both parties, the client may terminate this agreement subject to the termination clauses of this agreement. If client fails to provide approval or comments during any approval period, those deliverables will be considered approved and accepted.
CONFIDENTIAL INFORMATION
All material considered confidential by either party shall be designated as confidential.
RELATIONSHIP OF THE PARTIES
No agency, partnership, joint venture, or employee-employer relationship is intended or created by this agreement. Neither party is authorised to act as agent or bind the other party except as expressly stated in this agreement. Formation Creative and the work product or deliverables prepared by us shall not be deemed a work for hire as defined under copyright law. All rights granted to client are contractual in nature and are expressly defined by this agreement.
NO WARRANTY
Formation Creative services are provided on an “as is” basis, and without any warranty or condition, express or implied.
INDEMNIFICATION AND LIABILITY
The client shall indemnify the designer from any and all damages, liabilities, costs, losses, expenses or attorney fees arising out of any claim, demand, or action by a third party due to materials included in deliverables at the request of the client. The services and the work product of the designer are sold “as is.” in all circumstances, the maximum liability of the designer, its directors, officers, employees, design agents and affiliates (“designer parties”), to the client for damages for any and all causes whatsoever, and client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of designer. In no event shall the designer be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by the designer, even if the designer has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
PRELIMINARY WORKS
We as the designer shall retain all rights in and to all preliminary works. All designer tools are and shall remain the exclusive property of the designer. Designer grants Client a nonexclusive, nontransferable, perpetual, worldwide license to use the designer tools solely to the extent necessary with the final deliverables for the project.
SUPPORT SERVICES
Once the final files are sent and the website is launched any other revisions are supported at Our hourly rate. The Designer does not host/maintain/or support the website. The Designer was hired for the initial design and customization.
ALTERATIONS
Alteration of any deliverable is prohibited without the express permission of the designer. Formation Creative will be given the first opportunity to make the required alterations. Unauthorised alterations shall constitute additional use and will be billed accordingly.
DISPUTE RESOLUTION
Parties agree to attempt to resolve any dispute by negotiation between the parties. If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties. The prevailing party shall be entitled to recover its attorney's fees and costs in any dispute resolved by binding arbitration or litigation.
CHOICE OF LAW
The agreement herein is governed by the law in force in New Zealand and any other courts which may hear appeals from those courts in respect of any proceedings in connection with these Terms of Conditions. If any of these Terms and Conditions are invalid or unenforceable, they may be struck out and the remaining Terms of Use will continue to be of full force and effect.
I, the undersigned client, hereby warrant that I am competent to contract in my own name. I confirm that I have read the herein agreement prior to its execution and I am fully familiar with the contents thereof. This agreement shall be binding upon me and my heirs, legal representatives and assigns.
Details.
Please read these Terms and Conditions ("Terms", "Terms and Conditions") carefully before using the www.formationcreative.co.nz website (the "Service") operated by Formation Creative ("us", "we", or "our").
Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service.
By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access the Service.
By contracting Formation Creative for work, you agree that you have read the terms and conditions.
Intellectual Property
The Service and its original content, features and functionality are and will remain the exclusive property of Formation Creative and its licensors. The Service is protected by copyright, trademark, and other laws of both New Zealand and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of Formation Creative.
Where Formation Creative creates any product, system, website, or graphic, the intellectual property rights for that product, system, website, or graphic, remain the property of Formation Creative unless express permission and agreed in writing that the rights should pass to the customer. All work completed by Formation Creative is subject to copyright and terms and conditions of trade. Reproduction or issue to third parties in any form is not permitted without authorization from Formation Creative.
Links To Other Websites
Our Service may contain links to third-party websites or services that are not owned or controlled by Formation Creative.
Formation Creative has no control over and assumes no responsibility for, the content, privacy policies, or practices of any third-party websites or services. You further acknowledge and agree that Formation Creative shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such web sites or services.
We strongly advise you to read the terms and conditions and privacy policies of any third-party websites or services that you visit.
Limitation Of Liability
In no event shall Formation Creative, nor its directors, employees, partners, agents, suppliers, or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use the Service; (ii) any conduct or content of any third party on the Service; (iii) any content obtained from the Service; and (iv) unauthorized access, use or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.
Disclaimer
Your use of the Service is at your sole risk. The Service is provided on an "AS IS" and "AS AVAILABLE" basis. The Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance.
Formation Creative its subsidiaries, affiliates, and its licensors do not warrant that a) the Service will function uninterrupted, secure or available at any particular time or location; b) any errors or defects will be corrected; c) the Service is free of viruses or other harmful components; or d) the results of using the Service will meet your requirements.
Governing Law
These Terms shall be governed and construed in accordance with the laws of New Zealand, without regard to its conflict of law provisions.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have between us regarding the Service.
Changes
We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is made we will try to provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.
By continuing to access or use our Service after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, please stop using the Service.
Contact Us
If you have any questions about these Terms, please contact us.
Current as of August 2022