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Creative Service
Terms & Conditions
October 2024 | Date last updated: 9 October 2024
CREATIVE SERVICES - TERMS AND CONDITIONS
Shuttlerock has been engaged by you, the Customer, to provide creative services. Shuttlerock provides the Services on the following terms (Terms) and as detailed in the relevant order form and/or Shuttlerock’s relevant quote for Services. Any additional terms or conditions detailed in the relevant quote or order form will be deemed to be incorporated into these Terms by reference.
Shuttlerock may in its discretion accept or reject any order form. A contract is formed when the Customer accepts in writing Shuttlerock’s quote for Services.
Definitions
“AI Tool” means any artificial intelligence tool, software or service.
“Authorised User” has the meaning set forth in clause 7.2 of these Terms.
“Creators” means independent content creators participating in the Shuttlerock Creator Program.
“Creator Content” means original digital content created by Creators.
”Discounts” means any discounts which may be offered including for advance payment.
“Fees” means the fees agreed between the parties when a contract is formed.
“Intellectual Property” means any patent, design, trademark, copyright, know-how, trade secret and any other proprietary right or form of intellectual property (whether protectable by registration or not) in respect of any technology, concept, idea, data, programme or other software (including, without limitation) source and object codes, specification and process.
“Licence Model” has the meaning set forth in clause 6.1.2 of these Terms.
“Licence Services” has the meaning set forth in clause 6 of these Terms.
"Login Credentials" has the meaning set forth in clause 7.3 of these Terms.
“Payment Due Date” has the meaning set forth in clause 8.1 of these Terms.
“Privacy Laws” has the meaning set forth in clause 2.10 of these Terms.
“Services” means the services to be performed by Shuttlerock as detailed in the relevant order form(s).
“Shuttlerock” means the Shuttlerock company that the Customer contracts with in accordance with these terms (which may be Shuttlerock Limited, NZ company number 3409751, or one of that company’s local subsidiary companies).
“Shuttlerock Creator Program” means Shuttlerock’s program of engagement with content creators who wish to provide original user generated content to Shuttlerock’s brand owner customers. Details of the content creators who have agreed to participate in the program and samples of their creative work will be made available to Customers in accordance with Shuttlerock’s normal business practices for the program.
"SOW" means any order form, quote, statement of work or similar document in which Shuttlerock agrees to provide Services to the Customer on or subject to there Terms.
“Start Date” has the meaning set forth in clause 6.2.1 of these Terms.
“Working Day” means a day other than a Saturday, Sunday or statutory public holiday in the country where the relevant contracting Shuttlerock entity is incorporated.
“Working Files” means an After Effects file with editable text layer. All graphic and image animations are locked and not editable.
1. Services
1.1. The Customer has engaged Shuttlerock to undertake the Services on the terms and conditions set out in these Terms.
1.2. Subject to clause 1.3, Shuttlerock will perform the Services with reasonable care, skill, and diligence and will ensure that any third parties (other than Creators) engaged by Shuttlerock to assist with providing the Services also act with reasonable care, skill and diligence.
1.3. If Customer engages Shuttlerock to procure Creator Content:
1.3.1. Shuttlerock will use reasonable endeavours to engage Customer’s preferred Creator(s) to produce that content in accordance with specificed requirements, any other terms set out in the relevant order form or contract, and Shuttlerock’s current Shuttlerock Creator Program Terms and Conditions;
1.3.2. Customer will not be obliged to accept any Creator Content produced and, unless stated otherwise in an order form, will only be required to pay for Creator Content that is accepted;
1.3.3. Except as set out in clauses 1.3.1 and 1.3.2, Shuttlerock is not responsible for the work of Creators and Shuttlerock does not warrant or undertake that the content produced by them will be of any particular quality or fit for any particular purpose.
1.4. The supply of Shuttlerock’s Services is subject to these Terms. Shuttlerock may amend these Terms at any time and will notify Customers of any such changes. The most recent version of the Terms will apply to any orders entered into after the amendment(s) have been made.
2. Intellectual property and privacy
2.1. Shuttlerock acknowledges that the Customer is the owner of all Intellectual Property in the image, photograph media or any other materials provided by the Customer to Shuttlerock (Initial Copyright Work). The Customer will only provide Initial Copyright Works that are owned by or licensed to the Customer and that Shuttlerock can use in providing the Services without infringing the Intellectual Property or privacy rights of the Customer or any third party.
2.2. The Customer grants to Shuttlerock a non-exclusive licence to use, sublicense, copy, alter, amend, vary and/or change the Initial Copyright Work to the extent necessary to enable Shuttlerock to provide the Services.
2.3. The Customer grants to Shuttlerock a non-exclusive licence to incorporate the Initial Copyright Work, the results of Shuttlerock’s Services (including, without limitation, any new copyright work created thereby), and Customer’s name, logo and brief description of the business relationship between Shuttlerock and Customer (including, without limitation, the Services provided pursuant to this Agreement but not including pricing information) in Shuttlerock’s marketing and advertising material including, without limitation, websites owned or operated by Shuttlerock (or owned or operated by third parties on behalf of Shuttlerock), press kits, press releases and presentations to third parties. The Customer authorises Shuttlerock to share non-personal metadata with Shuttlerock’s ad partners for the purpose of revenue matching (clause 8.5).
2.4. The Customer acknowledges that, where Shuttlerock uses any third-party AI Tool in order to provide the service and/or produce any content for the Customer, Shuttlerock may be required to grant certain licenses and/or authorisations to the provider or license of the AI Tool in respect of:
2.4.1. the information, instruction, images and other materials provided or submitted to the AI Tool (which may include certain Initial Copyright Work) ("AI Inputs"); and/or
2.4.2. the results or outputs generated by the AI Tool (which may include any new copyright work by using the AI Tool ("AI Outputs").
Such licences or authorisations may include, for example, a licence for the provider or licensor to use AI Inputs in order to provide its service to Shuttlerock or a licence to publicly display that an AI Output has been created using their AI Tool. In these cases, the Customer authorises Shuttlerock to grant all such licences and authorisations to the relevant providers and licensors of the AI Tool (but in each case only to the extent required under Shuttlerock's applicable agreement or terms with the relevant provider or licensor). Shuttlerock will provide the Customer with details of any such licensing and authorisation requirements whenever requested to do so by the Customer. Shuttlerock also confirms that its standard practice is (where it is an option and commercially reasonable to do so in the circumstances) to purchase paid licences or subscriptions for the relevant AI Tools whose terms limit the extent to which the AI Inputs and AI Outputs may be used by the provider or licensor of the AI Tool.
2.5. Subject to clauses 2.6 to 2.9, the Customer will own the copyright in the final creative ads and other content supplied to the Customer under these Terms, to the extent that Shuttlerock’s provision of the Services creates a new copyright work.
2.6. Subject to clauses 2.7 to 2.9, the Customer will own the copyright in Creator Content that is accepted and paid for as referred to in clause 1.3, to the extent a new copyright work was created by the relevant Creator.
2.7. If and to the extent that a creative ad or any other content supplied to the Customer incorporates any intellectual property licensed by Shuttlerock from a third party, or is existing content which the Customer orders from a Shuttlerock catalogue or similar (such as a music catalogue), the Customer will not acquire ownership of the copyright in that content and Shuttlerock will ensure that the Customer is licensed to use that content as contemplated by the SOW subject to any licensing terms that Shuttlerock notifies the Customer of when supplying that content.
2.8. The Customer may only use the creative ad or any other content supplied to the Customer under a SOW, and may not make use of the individual components in any other form unless expressly stated in a SOW. For the avoidance of doubt, this restriction will not apply to any discrete content supplied by Shuttlerock to the Customer on a standalone basis which is not incorporated in any creative ad supplied by Shuttlerock for the Customer. The kinds of discrete content that may be ordered by the Customer on a standalone basis will be as detailed in Shuttlerock's quote (or any applicable Service Level Agreement provided with a quote), and may include content such as 3D models or music or images generated using AI Tools.
2.9. Without limiting the foregoing, Shuttlerock may incorporate audio content within provided creative ads, which has been licensed to Shuttlerock by one of our audio content providers, and “as is” without warranty. This content is provided to the Shuttlerock Customer under the terms of that licence. Customer must only use the audio content for the purposes for which it is provided, and in the form, provided in accordance with these Terms.
2.10. Shuttlerock is bound by the Privacy Act 2020 (New Zealand) and by similar privacy laws in the other jurisdictions in which it operates (“Privacy Laws”). Shuttlerock takes these obligations seriously. If the Customer provides Shuttlerock with any personal information, that information will be held in accordance with Shuttlerock’s Privacy Policy available at www.shuttlerock.com and the relevant Privacy Laws.
3. Warranties, Liability, and Indemnity
3.1. The Customer warrants to Shuttlerock that the Customer has full power and authority to agree to these Terms.
3.2. Subject to clauses 3.3, 3.4 and 3.6, each party warrants to the other that:
3.2.1. it is the owner or authorised licensee of anything (including without limitation any Intellectual Property) provided to the other party in connection with the Services or any SOW; and
3.2.2. no third-party moral rights will be infringed by the other party’s use of anything (including without limitation any Intellectual Property) provided to the other party in connection with the Services or any SOW.
3.3 Shuttlerock does not warrant or undertake that creative content supplied to the Customer, which is produced using third-party AI Tools, will be non-infringing.
3.4. Shuttlerock gives no warranties in respect of the Creator Content and does not warrant or undertake that the Creator Content will be non-infringing. If any Creator Content is alleged or determined to infringe the intellectual property rights of any third party, Shuttlerock will use reasonable endeavours, at the request and expense of the Customer, to enforce any applicable warranties or indemnities provided by the Creator in the Shuttlerock Creator Program Terms and Conditions for the Customer’s benefit.
3.5. Each party (Indemnifying Party) indemnifies the other party (Other Party), and shall keep the Other Party indemnified from and against, all claims, proceeding, costs, losses and expenses incurred or suffered by the Other Party which may be made against the Other Party arising out of or in connection with any breach of the warranties given by the Indemnifying Party in clause 3.2.
3.6. The warranties given by Shuttlerock in clause 3.2, the indemnity in clause 3.5, and the obligations in clause 3.3 do not apply in respect of any Intellectual Property provided by the Customer which Shuttlerock incorporates into any creative ads or other content supplied to the Customer under a SOW.
3.7. Nothing expressed or implied in these Terms will confer any liability on either party (First Party) in respect of any indirect, consequential or special damage suffered or incurred by the other party as a direct or indirect result of a breach by the First Party of any of its obligations under these Terms.
3.8. Notwithstanding any contrary provision contained in these Terms, Shuttlerock’s maximum liability to the Customer, whether in contract, tort or otherwise, under or in connection with:
3.8.1. the Services (other than services provided in connection with the procurement of Creator Content) will not exceed the aggregate of all Fees paid or payable by the Customer for the Services over the 6-month period preceding the incident first giving rise to liability;
3.8.2. the procurement or supply of Creator Content will not, in respect of any item of Creator Content supplied to the Customer, exceed the Fee paid by the Customer for that item of content.
3.9. This Clause 3 will survive the expiration or termination of these Terms.
4. Term, Termination and Suspension
4.1. These Terms will take effect from the date that a contract is formed and will remain in effect until the Services have been provided to the Customer and:
4.1.1. In the case of Licence Customers, the Licence Term ended, delivery of all the Services has been completed and the Fees have been paid; and
4.1.2. In the case of all other Customers, the Services agreed to under the SOW have been completed and the Fees have been paid in full to Shuttlerock.
4.2. Either party (Terminating Party) may terminate the contract at any time and with immediate effect by written notice to the other party (Breaching Party) if the:
4.2.1. Breaching Party has committed a material breach of these Terms and the Terminating Party has given written notice to the Breaching Party of that breach, but the Breaching Party has failed to remedy the breach within 10 Working Days of receipt of the written notice;
4.2.2. The Breaching Party has committed a material breach of these Terms, where both parties acting reasonably (acting reasonably) agree that breach is not reasonably capable of being remedied within 10 Business Days;
4.2.3. The Breaching Party goes into liquidation, receivership or administration or has been removed from the New Zealand Companies Register or any relevant register in its jurisdiction of incorporation (other than as part of an amalgamation).
4.3. Shuttlerock may in its sole discretion:
4.3.1. suspend the delivery of the Services; or
4.3.2. terminate the Agreement,
if the Customer is in breach of the payment provisions in clause 8 of this Agreement (Payment Terms).
5. Relationship of the Parties
5.1. Shuttlerock is an independent contractor. Nothing expressed or implied in these Terms will constitute either party as the partner, agent, employee or officer of, or as a joint venture with, the other party. Neither party will make any contrary representation to any other person. Shuttlerock will not sign any document on behalf of the Customer, except with the Customer’s written authority.
5.2. The Customer must not give any warranty or make any representation on behalf of Shuttlerock, to any person, unless expressly authorised to do so in writing by Shuttlerock.
6. Customer Service Delivery Models
6.1. Shuttlerock offers a range of Customer service delivery models including:
6.1.1. where a Customer chooses to purchase individual or multiple creative deliverables;
6.1.2. where a Customer chooses a Licence term during which the Services are provided over an agreed term (“Licence Model”);
6.1.3. Licence Model Customers are eligible to participate in the Shuttlerock Creator Program, and may engage Shuttlerock to procure Creator Content in accordance with these terms and the applicable order form. Other service delivery models are currently outside the program.
6.2. The provision of Services under the Licence Model are subject to the Service Level Agreement set out in Shuttlerock's quote for Services:
6.2.1. A Shuttlerock Licence activates on the date as specified in the signed quote and/or statement of work (“Start Date”).
6.2.2. Any 3-month licences will automatically renew for a further 9 months if Customer does not notify licences@shuttlerock.com of their intent to cancel the contract at least 14 days before the contract ends. After renewal, the Licence will be considered a 12-month Licence.
6.2.3. Any 12-month Licences will automatically renew for the same Licence term if the Customer does not notify licences@shuttlerock.com of their intent to cancel the contract at least 30 days before the contract ends.
6.3. Shuttlerock reserves the right to introduce new Customer Service models from time to time and to vary the terms of, or phase out, any particular Customer Service model.
6.4. Shuttlerock does not offer Working Files to Licence Model Customers due to the proprietary process, IP involved, music rights and vector file rights.
7. Access to Shuttlerock Customer Service Delivery Platforms
7.1. Shuttlerock Customers may be granted access to Shuttlerock’s platforms as part of our Services delivery model, including our web-based and ShuttlerockCloud platforms (“Shuttlerock Service Delivery Platforms”).
7.2. In this clause 7, “Authorised Users” means employees, contractors, agents and other staff of the Customer for whom the Customer has paid the required fees and whom the Customer designates in the order form as being an authorized user. Only Authorised Users may access and use the Shuttlerock Service Delivery Platforms. Customer is responsible for compliance with these Terms by all Authorised Users.
7.3. Where access to Shuttlerock Service Delivery Platforms is via user names and passwords ("Login Credentials") that allow Authorised Users to access and use the Shuttlerock Service Delivery Platforms:
7.3.1. Customer is responsible for ensuring that Authorised Users take all reasonable steps to safeguard their Login Credentials. Shuttlerock may assume that any person accessing or using the Cloud Service using those Login Credentials is one of the Customer’s Authorised Users;
7.3.2. Customer must ensure that each of the Customer’s Authorised Users only uses the Login Credentials that have been allocated to them, and that no other person uses such Login Credentials; and
7.3.3. if Customer becomes aware or has reason to suspect that there has been any unauthorised use of any Login Credentials that have been allocated to Authorised Users, they must notify Shuttlerock immediately.
7.4. Shuttlerock may suspend access to the Shuttlerock Service Delivery Platforms where it reasonably believes that there has been unauthorised use of the Shuttlerock Service Delivery Platforms by any Authorised Users or through any Login Credentials issued to the Customer. Where Shuttlerock does so, it will notify the Customer within a reasonable time of the suspension occurring, and the parties will work together to resolve the matter. Nothing in this clause 7 limits any other rights or remedies Shuttlerock may have in such circumstances.
7.5. Customer access to the Shuttlerock Service Delivery Platforms will end on the expiry date or earlier termination of the contract.
8. Payment Terms and Acknowledgement of Third-Party Platform Payments
8.1. Payment terms for all Shuttlerock invoices are 30 days from the date of invoice (“Payment Due Date”), unless otherwise agreed in writing.
8.2. If the Customer fails to pay the invoice amount by the Payment Due Date then Shuttlerock may issue a notice in writing to the Customer requiring payment to be made within 7 days of the date of the notice. If the Customer has not made payment in full before the expiry of the 7 day notice period then Shuttlerock may suspend the Services or terminate the Agreement in accordance with clause 4.3 by notice in writing, in which case any outstanding amount owed by the Customer shall become a debt owing to Shuttlerock.
8.3. The Customer agrees that Shuttlerock shall be entitled to charge interest at the rate of 12% per annum calculated daily on any overdue payments, together with all reasonable costs incurred in the recovery of the debt.
8.4. If a 3-Month Licence Customer submits a notice of cancellation within the first 90 days of the Licence, the Customer remains responsible for payment of the initial invoice covering the first three months of the Licence Term.
8.5 The Customer acknowledges and agrees that:
8.5.1 Shuttlerock and/or its related companies may receive (directly or indirectly) payments or other consideration from operators of Third Party Platforms which relate to, are based on, or arise from: (i) the placement (or entry into a contract or order for the placement) of creative ads supplied to the Customer by Shuttlerock on the Third Party Platform; and/or (ii) the performance or impact of such creative ads on the Third Party Platform; and
8.5.2 Shuttlerock and/or its related companies (as the case may be) may retain all such payments and consideration in full without any obligation to account to the Customer for the same.
In this clause 8.5, a "Third Party Platform" refers to any third party website, application or digital platform, including any social media platform or online marketplace.
9. General
9.1. Neither party will be liable for any act, omission or failure by it under these Terms if that act, omission or failure results directly from an event or circumstances beyond that party’s reasonable control (force majeure).
9.2. No amendment to these Terms will be valid unless it is in writing and signed by Shuttlerock.
9.3. Any waiver by a party of any of its rights or remedies under these Terms will be effective only if it is recorded in writing and signed by both parties.
9.4. If a provision of these Terms is invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of remaining provisions is not affected.
9.5. These terms and conditions shall be governed by and construed in accordance with the laws of, and the parties submit to the exclusive jurisdiction of the courts of, the state or country in which the Shuttlerock legal entity that is a party to these Terms is incorporated, as follows:
9.5.1. Shuttlerock, LLC - the State of Delaware;
9.5.2. Shuttlerock Limited - New Zealand;
9.5.3. Shuttlerock UK Limited - England and Wales;
9.5.4. Shuttlerock Pte Ltd – Singapore;
9.5.5. Shuttlerock GmbH - the Federal Republic of Germany;
9.5.6. Shuttlerock Pty Ltd - Australia.