Effective September 14, 2018
Date last updated: 01 May 2020
CREATIVE SERVICES - TERMS AND CONDITIONS
Shuttlerock has been engaged by you, the Customer, to carry out Creative Services. Shuttlerock provides these Services on these Terms of Service (Terms) and as detailed in the relevant order form. Any additional terms or conditions detailed in the order forms 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.
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.
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).
Services means the services to be performed by Shuttlerock as detailed in the relevant order form(s).
2.1 The Customer has engaged Shuttlerock to undertake the Services on the terms and conditions set out in these Terms and in the relevant order form(s).
2.2 Shuttlerock will perform the Services with reasonable care, skill, and diligence and will ensure that any third parties engaged by Shuttlerock to assist with providing the Services also act with reasonable care, skill and diligence.
2.3 The supply of Shuttlerock’s Services is subject to these Terms. Shuttlerock may amend these Terms at any time. The most recent version of the Terms will apply to any orders entered into after the amendment(s) have been made.
3. Intellectual property AND PRIVACY
3.1 Shuttlerock acknowledges that the Customer is the owner of all Intellectual Property in the image, photograph or other media (Initial Copyright Work) being provided by the Customer. The Customer will only provide Initial Copyright Works that are owned by the Customer and that Shuttlerock can use in providing the Services without infringing any Intellectual Property or privacy rights.
3.2 The Customer grants to Shuttlerock a non-exclusive licence to use, alter, amend, vary and/or change the Initial Copyright Work to the extent necessary to enable Shuttlerock to provide the Services.
3.3 To the extent that Shuttlerock’s provision of the Services creates a new copyright work, that new copyright work will be owned by the Customer.
3.4 The Customer grants to Shuttlerock a non-exclusive license 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.
3.6 Shuttlerock may use audio content within your provided creative ads, which is under licence through one of our audio content providers, and “as is” without warranty. This content is provided to you as our client under the terms of that licence. You must only use the audio content for the purposes for which it is provided and in the form provided to you under the terms of this agreement.
4. WARRANTIES, Liability, and Indemnity
4.1 The Customer warrants to Shuttlerock that the Customer has full power and authority to agree to these Terms.
4.2 The Customer warrants that it is the owner of any Intellectual Property it provides to Shuttlerock in relation to the Services and that any third party personal information that the Customer provides to Shuttlerock is allowed to be provided and used by Shuttlerock for the purpose of providing the Services free of any restrictions.
4.3 The Customer warrants that no third party moral rights will be infringed by Shuttlerock’s provision of the Services.
4.4 The Customer indemnifies Shuttlerock, and keeps Shuttlerock indemnified from and against, all claims, proceeding, costs, losses and expenses incurred or suffered by Shuttlerock or which may be made against Shuttlerock arising out of any failure by the Customer to comply with its obligations contained in the Terms and/or any breach of Customer’s representations and warranties contained in the Terms.
4.5 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.
4.6 Notwithstanding any contrary provision contained in these Terms, Shuttlerock’s maximum liability to the Customer under or in connection with the Services (whether in contract, tort or otherwise) 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.
5. Term and Termination
5.1 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 the Fees have been paid in full to Shuttlerock.
5.2 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:
(a) 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;
(b) 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;
(c) 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).
5.3 Customer’s duty to indemnify Shuttlerock as set forth in Section 5 above will survive the expiration or termination of these Terms.
6. Relationship of the Parties
6.1 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.
6.2 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.
7.1 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).
7.2 No amendment to these Terms will be valid unless it is in writing and signed by Shuttlerock.
7.3 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.
7.4 If a provision of these Terms is invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of remaining provisions is not affected.
7.5 The Shuttlerock entity that you are contracting with under these Terms is Shuttlerock Limited.
7.6 Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.