Established in 2021, Lucid Media Limited (henceforth referred to as ‘Lucid Media’) is a comprehensive digital agency based in New Zealand.
1. Services and Rates
Our standard hourly rate is $75 per hour unless specified in your Proposal. We may agree upon different rates through mutual agreement.
2. Modification of Terms and Conditions
These Terms and Conditions are subject to change without prior notice and may be superseded as outlined in clause 42.g. We retain the right to modify these Terms and Conditions, and any updates will be communicated through our website, email, or other relevant channels.
You may commission us for a Project through the following methods:
- Signing and returning a Proposal to us;
- Providing an authorised Purchase Order;
- In the case of smaller engagements – through written confirmation;
- Through verbal notification and payment acceptance.
Unless stated otherwise, we will accept the engagement, subject to these Terms and Conditions. The Project will commence following the project schedule or upon acceptance of the engagement.
Should we provide a Proposal for the Project, please note that:
- The Proposal is based on Specifications and may change if both parties agree to modify the Specifications.
- The Proposal remains valid for 30 days from the date of issue, unless otherwise agreed by Lucid Media.
5. Staged Approach
We generally adopt a staged approach for most Projects to facilitate planning and implementation.
5.1 Discovery Stage
In this stage, we flesh out high-level ideas in detail. Deliverables for the Discovery Stage may include functional specifications (sitemap and wireframes), design and/or marketing specifications, a fixed price proposal for design and/or marketing, and a development/technology estimate.
We typically charge for our time spent on the Discovery Stage at our standard hourly rate, irrespective of whether you proceed to further stages in the Project.
5.2 Creative Stage
In this stage, our creative team assumes control, while the technology team works in tandem to create and develop technical specifications and database schema/architecture. Deliverables may include a completed design, content and/or brand, technical specifications, database schema/architecture, and a fixed price proposal for development/technology.
5.3 Development/Technology Stage
This stage is typically the most involved, where Lucid Media collaborates closely with you or your Project Manager. Deliverables may include completed development, testing, quality assurance, user acceptance testing, training sessions, deployment, and installation of devices.
5.4 Marketing Stage
Upon completion of the Project, we optimise it for marketing purposes. Deliverables may include meta information, 301 redirects, image alt tags, sitemap creation and submission to Google, and Google Analytics installation.
The Services that we offer, and any specific terms, may include some or all of the following:
- Clause 14 – Consultation
- Clause 15 – Design
- Clause 16 – Copywriting
- Clause 17 – Development/Technology
- Clause 18 – Maintenance
- Clause 19 – Third Party Software
- Clause 20 – Support & Maintenance Packages
- Clause 21 – Hosting
- Clause 22 – Domain Name Services
- Clause 23 – Email Marketing
- Clause 24 – Social Media Management (SMM)
- Clause 25 – Search Engine Optimisation (SEO)
- Clause 26 – Strategy and Analytics
You recognise that electronic services are susceptible to disruption and interruptions, and thus:
- The Services may not be error-free or uninterrupted, and
- Your access to the Project and its operation may not be error-free or uninterrupted.
7. Hours of Service
We provide all Services between 9:00 am and 6:00 pm (local office time), Monday to Friday, excluding public holidays.
8. Content and Materials Supplied by You
You must supply us with all necessary materials for the Project, as well as any other content and materials we reasonably request (Client Content), in a timely manner. You must provide all Client Content in the following digital formats:
- Text/Copy: Microsoft Word or Rich Text (clearly labelled and in correct order)
- Tables: Microsoft Excel (clearly labelled and in correct order)
- Images: High resolution where possible (JPEG, PNG files)
- Logos: Vector format (Illustrator EPS/AI)
- Diagrams/Maps: Vector format (AI) or (JPEG files)
- If required, access to your current website and database via SSH, FTP and/or CMS/hosting control panel login
- Brand style guidelines (if applicable)
We may charge additional costs if the Client Content is not provided in the appropriate format or if the material is not supplied when requested. You warrant that the materials or content you provide us with, or which are provided to us on your behalf, will not breach any rights (including Intellectual Property Rights or Moral Rights) of any third party, or compromise the security or operation of our computer systems, through a virus or otherwise.
You indemnify, and agree to keep Lucid Media, its directors, officers, and employees indemnified, against all loss arising out of the breach of any rights (including Intellectual Property Rights and Moral Rights) of any third party in connection with materials or content that you supply to us, or that are supplied to us on your behalf.
9. Variations and Additional Costs
During the course of our engagement, if there are changes in the Specifications of the Project, or unplanned delays or additional project time due to unforeseen reasons beyond our reasonable control, these will be treated as a Variation.
Where a Variation occurs, Lucid Media reserves the right to halt work and review the Fees for the Project. We will discuss the Variation with you and, where required, will issue a Variation Notice which includes the basis for the Variation and any associated increase in the Fees for the Project. We will not proceed with the Services until we receive your written approval. If you do not give written approval of the Variation Notice and to proceed within 7 days, then the agreement and Project may be terminated.
Examples of Variations include, but are not limited to, the introduction of additional requirements not discussed during the discovery stage, changes in the Specifications during the design stage, additional pages, features, functionality etc. required / introduced in the development/technology stage, additional project management time, and unplanned delays in obtaining approval, Client Content, or feedback resulting in Lucid Media having to reschedule projects or staff.
It is our process to include project management time in all quotes, but from time to time we may also have to manage your team, which is generally not known at the time of quoting and may be treated as a Variation.
If during the course of our engagement there are small changes in the Project [leading to extra costs not exceeding 10% of the original estimated Fees], we will contact you and provide an estimate of the Additional Costs for these small changes.
Where possible, we will attempt to obtain approval from you prior to undertaking the additional work. However, in some cases due to deadline and availability constraints, this may not be possible, and we may proceed with the work without obtaining approval and you will be liable for all Additional Costs.
Additional Costs will be invoiced separately to the Client on an ad hoc basis, charged at current Professional Hourly Rates, or where appropriate, placed on a Support & Maintenance Package (see Clause 21).
Examples of Additional Costs include costs for commercial fonts, photography, audio and video; content not in the appropriate format; extra workshops or workshops requiring additional hours; requested minor additional design concepts/alterations; requested minor changes to the design after final approval has been requested or provided; uploading and styling/layout of additional Client Content; additional training sessions, additional training session attendees or training at your premises; additional meetings and travel time.
10. Purchase of Stock Images, Fonts, Photography, Audio or Video
Unless specified in the Proposal, the Fees do not include searches or purchases of stock images, commercial fonts, photography, audio, or video. You can provide stock images, commercial fonts, audio, or video, or we can purchase them on your behalf. When any stock images or commercial fonts are purchased on your behalf, Lucid Media will be the license holder and the image or font can only be used under the terms of the licenses.
You indemnify and agree to keep Lucid Media, its directors, officers, and employees indemnified against all Losses arising out of the breach of these licenses. Costing for any required font, photography, audio, or video will be provided for approval separately via a Variation Notice. Ownership of the finished photography, audio, or video will be transferred to you upon full payment of all issued invoices. Lucid Media retains ownership of all working files.
11. Your Approval
Your approval may be required for several items (Approval Item) that we present to you:
- Project brief
- Functional specifications (sitemap and wireframes)
- Design specifications
- Marketing specifications
- Design concepts (and your choice of one of them)
- Each updated version of the chosen design concept
- Completed design
- Technical specifications
- Database schema/architecture
- Completed deliverables including uploaded content
- Variation Notices
- Any other item for which we request your approval
When we provide you with any Approval Item, you must notify us in writing whether you do or do not accept the completed Approval Item. You will be deemed to have accepted the Approval Item if we do not receive a response from you within 5 business days.
Your acceptance of the completed Approval Item means that the Approval Item is complete, and no further amendments are necessary. However, we will not proceed to the next Stage of the Project until we receive your approval to proceed. Due to unplanned delays in obtaining approval, there may be Additional Costs in having to reschedule projects, staff, or facilitate continuance. If unable to perform continuance, the Client may have to pay a shutdown and subsequent restart fee commensurate to the labour and resource costs incurred.
12. Scheduling, Production and Project Management
If we deem it necessary, we will develop a production schedule for the Services. We will use reasonable commercial endeavours to carry out the Services in accordance with that schedule. If you delay in providing approval, Client Content, or feedback we require, then this may result in a change in the delivery deadline set out in the production schedule, or, if the delivery deadline cannot be changed, a Variation Notice will be issued, including necessary overtime costs.
13. Digital Marketing Services
You acknowledge that the Digital Marketing Services provided by Lucid Media are not an exact science and that search engines, media services, platforms and providers are constantly changing and evolving. Lucid Media has no control over these changes.
Lucid Media will perform the Digital Marketing Services utilising best practice strategies and up-to-date techniques, and will make recommendations to achieve the client’s goals best, but cannot guarantee results.
Lucid Media will endeavour to seek approval from the Client for material prior to publication, but this may not always be possible due to time constraints, deadlines and access to the appropriate authority.
Unless agreed otherwise, Digital Marketing Services and media spend will be invoiced and automatically paid by direct debit at the beginning of each month.
Lucid Media will perform the Digital Marketing Services as specified in the Proposal or as agreed in writing with the client, utilising the specified providers and/or platforms, for the specified term.
Digital Marketing Services are supplied for a fixed initial term specified in the Proposal. If a client wishes to cancel a contract early, the customer must give a 30-day notice, so we have time to react accordingly.
Once the initial contract term is completed, the contract will automatically renew for subsequent periods of the same duration, unless either party gives the other party 30 days written notice terminating the agreement or both parties agree in writing to vary the Digital Marketing Services provided.
You indemnify, and agree to keep Lucid Media, its directors, officers and employees indemnified against all Loss arising from actions taken performing Digital Marketing Services.
Lucid Media cannot be held liable and accepts no responsibility for being unable to perform Digital Marketing Services due to a lack of client resources or access.
Lucid Media may be required to work alongside another agency or third party provider. Lucid Media cannot be held liable and accepts no responsibility for being unable to perform services due to faults or defects in any service provided by third parties.
Lucid Media reserves the right to charge Additional Costs, in accordance with clause 7e to 7g, caused by the Client’s instructions, lack of instructions, interruptions, mistakes, work for which Lucid Media is not responsible and changes to the requirements, expectations or hardware and software environment, and extra work required caused by faults or defects in any service provided by a third party.
14. Consultation and Other Services not Specifically Itemised in these Terms and Conditions
Our consultancy services may include: researching and developing a tailored strategy, campaign planning and implementation, current system review and analysis; audits, workshops, public speaking and installation; project management of a third party or internal implementation.
Other services we offer may include: Digital Asset Valuations, APP Development, be it Native or Web-based, Video and Photography, Latipay, SLA (Service Level Agreements), etc.
Our design services will include: delivery to you of one design concept (or as specified in the Proposal); and one round of alterations. Upon completion of the alteration, Lucid Media will supply an updated version of the design concept to you.
If you request additional concepts or alterations, or request changes to the design after final approval has been requested or provided, the work will be an Additional Cost.
The work referred to in paragraph (c) does not include a change to the Specifications which will be treated as a Variation.
The deliverables from the creative stage may include: completed design; technical specifications; database schema/architecture; fixed price proposal for development/technology.
Other design services may include: branding – competitor analysis, name research, URL review, logo trend analysis, branding options, refinement, final brand and logo and style guide; discussions regarding developing options for your digital marketing strategy, current system review and analysis; other design services – print ad design, booth design, banner design, business card and stationary design and printing, brochure design, email template design, sub-brand logo design.
Ownership of the finished design will be transferred to you upon full payment of all issued invoices. Lucid Media retains ownership of all working files.
Our copywriting services may include: SEO copy; Website copy; Blog writing; EDM copy. Our copywriting services include the presentation of one copy and one round of alterations for each copy/blog.
Ownership of the finished copy will be transferred to you upon full payment of all issued invoices. Lucid Media retains ownership of all working files.
Our development/technology services will be derived from the Proposal, the technical specifications, and final deliverables from the discovery and design stages.
Our development/technology services may include uploading and styling/layout of the Client Content to the developed software. If applicable, we will complete a specified number of standard pages or screens of the software. If we complete additional pages or screens for you, the additional work will be an Additional Cost.
A Content Management System (CMS) may be provided as part of the Project. Unless otherwise specified in the Proposal, our services do not include customisation of this CMS, its extensions, plug-ins or components. If any customisation is required: the parties agree the work will constitute a Variation; the customisation, extension, plug-in or component remains licensed under the original author or Lucid Media; and you accept and must comply with the CMS terms and conditions in relation to your use of the customisation extension, plug-in or component.
You acknowledge that the CMS and many of its extensions, plug-ins and components are provided by third parties, and therefore, we have limited control over the functionality or operation of the CMS and its extensions, etc.; and you accept and must comply with the terms and conditions of those third parties relating to the CMS.
A Standard Page or Screen is up to 500 words, up to 3 images and up to one implementation of any tabular data.
Unless otherwise specified in the Proposal or as agreed in writing with Lucid Media, Lucid Media retains ownership of the IP of any custom applications.
You acknowledge that Lucid Media is free to reuse any code, inventions, extensions, plug-ins or components and you grant Lucid Media an indefinite perpetual licence to use, re-sell and modify.
Ownership of the finished deliverable will be transferred to you upon full payment of all issued invoices. Lucid Media retains ownership of all working files.
Unless otherwise agreed for all apps being uploaded to an app store (Apple App Store, Google Play Store, Microsoft Store), Lucid Media will be listed as the “developer”. If in the event the Client wishes to be the “developer” with their own account, the costs to action such transfer will be an Additional Cost.
You acknowledge that the software that Lucid Media develops may run on third-party platforms, software and environments, and therefore, if any of these third-party platforms, software or environments make an update or discontinue, this may cause your software to break down, be interrupted or not operate at full functionality.
Our maintenance services consist of making modifications/updates based on the Proposal, brief and/or Specifications.
Unless otherwise specified in the Proposal, the Fees for modification do not include any provision for training or post-implementation support or warranty.
19. Third Party Software
We may provide Third Party Software as part of the Project. You acknowledge that: we have limited control over the functionality or operation of the Third Party Software; if the third parties provide data or other information for use with the Software, we have no control over the accuracy or completeness of that information; you accept and must comply with the terms and conditions of the Third Party Software providers; and those Third Party Software providers may invoice you directly for ongoing costs relating to your use of the Software.
The Fees for the Third Party Software may change from time to time. The new prices not supplied directly by the provider will apply from the date that we notify you.
Lucid Media provides a 20-business-day period for Client Testing. During this time, we provide 2 rounds of testing and feedback and 2 subsequent rounds of code fixes.
Lucid Media provides a limited Warranty Period during which it will fix Bugs at no charge. The Warranty Period will commence 20 business days after the project is handed over for Client Testing. If data entry is required, then the Warranty Period will commence on completion of data entry but no later than 30 business days after the Project is handed over for Client Testing.
The limited Warranty Period will continue for 20 business days. Extended warranty periods can be negotiated during the Discovery Stage and outlined in the Specifications.
All identified Bugs must be reported within the Warranty Period for Lucid Media to fix at no charge as described in clause 20b.
You are responsible for reviewing and testing the software and ensuring you are satisfied with it during the Client Testing and Warranty Period.
Any issues that are not defined as a Bug for the purposes of this warranty will be quoted for separately or placed on a Support & Maintenance Package.
Any Bugs that are reported after the expiry of the Warranty Period will be quoted for separately or placed on a Support & Maintenance Package.
When open-source software, such as October CMS, WordPress, MySQL, PHP, and Apache, is used to build and host websites, we cannot guarantee that these open-source software products are error-free. Any work required to address bugs, version or system updates is not included under the Warranty and will be quoted for separately or placed on a Support & Maintenance Package.
Any fixes or changes required to software as a result of upgrades to mobile operating systems like iOS, Android, or Windows are not included under the Warranty and will be quoted for separately or placed on a Support & Maintenance Package.
Any fixes or changes required to software as a result of upgrades to search engines or system upgrades are not included under the Warranty and will be quoted separately or placed on a Support and maintenance Package.
Unless otherwise specified in the Proposal, Warranty will only apply to:
- the latest 2 browser versions for Chrome, Firefox, Safari, Edge
- the latest version of Microsoft’s Internet Explorer
- the latest 2 operating systems for Windows, Android, and iOS
- the latest 2 device versions for Windows, Android, and iOS
- when handed over for Client Testing
Lucid Media will, at its sole discretion, determine the extent of labour required to perform its obligations under this clause.
21. Support & Maintenance Packages
Support and maintenance services are a paid service utilizing paid Support & Maintenance Packages and can be pre-purchased in certain blocks and on terms set out in the relevant Package.
Our support services consist of, but are not limited to:
- answering your technical questions relating to the Software, its operation, and the Content Management System and the extensions, plug-ins, or components provided with it; and
- resolving technical issues that arise in relation to the Software or its operation, except as set out in 21 (d).
Our maintenance services may consist of, but are not limited to:
- general design services;
- general copywriting services;
- general development services;
- general marketing services;
- small updates to Software;
- design and development of landing pages;
- out of warranty bug fixes;
- out of scope project work – design or development;
- data entry;
- content changes;
- general project management.
Our support and maintenance services do not include resolving:
- issues that relate to your networks, email, computer systems, or software;
- other technical issues not arising directly from the Software.
You may be required to provide us, at your own cost, access to the Software and your computer network and any systems required to provide the support and maintenance services. If you do not provide us with such access within a reasonable time after we request it, then:
- we are not obliged to provide you with any support & maintenance services; and
- we are not obliged to return to you any portion of the Fees that you have paid to us for the provision of support & maintenance service.
Support & Maintenance Package reduced hourly rate deals require that the Support & Maintenance Package be paid for in full before any work is undertaken. Work undertaken outside of a Support & Maintenance Package will be charged at our current Professional Hourly Rates.
Support & Maintenance Packages are not designed for major creative, technology, development, or marketing tasks, rather for tasks that can be completed within a maximum of 40 hours. Any work that will require more time than this to complete will require a Proposal.
Estimated time to complete requested support and maintenance tasks may be provided when, and if possible, at Client’s request.
Commencement of support tasks will start upon receipt of written support brief/request, confirmation of time estimate provided (where required and possible), and availability of hours on a Support & Maintenance Package.
Support & Maintenance Package activities are limited to Software and Services created by Lucid Media.
Unused Support & Maintenance Packages will not be refunded.
If we provide hosting services for the Website, those hosting services are governed by our Hosting Terms and Conditions, which can be found here.
23. Domain Name Services
Lucid Media does not represent or warrant the availability, suitability, or ability to register any domain name.
Lucid Media will not, at any time, assume any liability whatsoever in respect of the use of any domain name. Any disputes arising must be resolved between the parties involved.
You must not transfer a domain name to another internet service provider unless you have first paid all Lucid Media accounts in full.
When a domain name is due for renewal, we will issue an invoice with at least 14 days’ notice. If the invoice is not paid prior to the due date, we cannot guarantee the continuance of the domain name.
24. Email Marketing
Lucid Media will provide email services utilizing an agreed service provider.
You will be responsible for the costs associated with the engagement of the email service provider.
You must comply with all applicable legislation, including, without limitation, the Privacy Act 1993 and Unsolicited Electronic Messages Act 2007.
You warrant that in accordance with the Privacy Act 1993 NZ and the 2007 Unsolicited Electronic Messages Act NZ:
- You have consent from the recipients to receive email messages that will be sent or the message is directly related to the primary purpose for which the customer’s email accounts were recorded;
- The email will contain accurate information about the Client that authorized the sending of the message and how they may be contacted;
- You authorize a functional unsubscribe facility to allow the recipient to opt-out from receiving future email messages. Any opt-out received must be honored within five (5) business days.
25. Social Media Management (SMM)
Our Social Media Management services may include:
- Social media review, analysis, and strategy development;
- Social media campaigns, blogs, content creation, client engagement, and/or profile management for Facebook, Twitter, LinkedIn, or other social media platforms;
- Social media analytics;
- Social media policy.
You will provide access to your social media accounts or permission for us to set up accounts on your behalf.
If Lucid Media is not engaged to perform response management, Lucid Media will not be held responsible for repercussions of any negative feedback provided on social media by third parties.
26. Search Engine Optimisation (SEO)
Our Search Engine Optimization services may include:
- on-page optimization;
- content generation;
- link building.
Lucid Media requires full access to your website to be able to perform SEO duties.
You acknowledge that the Google and other search engines algorithms are constantly changing and evolving and that Lucid Media has no control over these changes.
27. Online Advertising
Our Online Advertising services may include:
- Search Engine Marketing (SEM);
- Social Media Marketing (SMM);
- Pay-Per-Click (PPC).
Unless otherwise agreed, Lucid Media will utilize our professional account/s to engage the appropriate third-party provider e.g. Facebook, Google, Bing.
The agreed monthly online advertising costs will be invoiced and automatically paid by direct debit at the beginning of each month.
The client acknowledges that we source suppliers and placements, but the suppliers govern the terms and conditions of those placements.
Lucid Media retains ownership of all campaigns, advertising accounts (Facebook, Google, Bing, Unbounce, etc.), and working files. Client access to these accounts, campaigns, and services will be removed upon termination of services.
28. Strategy and Analytics
Our Strategy and Analytics services may include:
- digital marketing audits;
- digital marketing strategy development;
- digital marketing strategy implementation;
- videos, images, memes, infographics, whitepapers, reports, and surveys;
- Google analytics;
- reputation management.
29. Archiving / Retrieval
We will endeavor to store or archive all electronic files used in the production of your Project for a period of 12 months after the completion of a Project. However, we do not guarantee that any stored or archived files can be retrieved. If you request that stored or archived files are retrieved by us and this is possible, then we will provide this service for an Additional Cost.
Once your Project is launched, archiving the files and database and copies of these files becomes the Client’s responsibility. Lucid Media can, at the request of the Client, provide this service for an Additional Cost.
Disbursement charges are not included in the Fees. If we incur any disbursements or expenses during the course of the Project, we will charge these to you as Additional Costs.
These may include but are not limited to:
- costs of plugins and themes purchased as part of the Project;
- consumable material utilized as part of a Project or campaign;
- one-off costs for social media monitoring at events.
31. Warranty Disclaimer
Nothing in this Agreement excludes, restricts, or modifies any right or remedy, or any guarantee, warranty, or other term or condition implied or imposed by legislation that cannot be lawfully excluded or limited.
Subject to Lucid Media obligations under the non-excludable provisions, and to the fullest extent permissible by law, Lucid Media expressly disclaims all warranties and representations of any kind, with respect to the Services, whether express, implied, statutory, or arising out of the course of performance, course of dealing, or usage of trade, including any warranties or merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title of non-infringement.
You agree that all goods and services supplied under these Terms are for the purposes of a business, and the Consumer Guarantees Act 1993 does not apply.
32. Limitation of liability
To the fullest extent permissible by law, Lucid Media is not liable (whether in contract or tort) for:
- Faults or defects in any services or goods provided by third parties in connection with this Agreement; or
- Any indirect, special or consequential loss (including loss or corruption of data, loss of profits, revenue, goodwill, anticipated savings, and business interruption), however arising, whether or not Lucid Media knew of the possibility of such loss and whether or not such loss was foreseeable.
To the fullest extent permissible by law, in no event will Lucid Media’s liability in contract, tort (including negligence and breach of statutory duty), or otherwise arising out of, or in connection with, this Agreement exceed the amounts actually paid by the Client to Lucid Media for the Service.
To the fullest extent permitted by law, the liability of Lucid Media for a breach of a non-excludable condition is limited to:
- In the case of the provision of services:
- the supplying of the services again; or
- payment of the cost of having the services supplied again.
- In relation to goods:
- the replacement of the goods or the supply of equivalent goods;
- the payment of the cost of replacing the goods or acquiring equivalent goods; or
- the repair of the goods or the payment of the cost of having the goods repaired.
Lucid Media will not be liable for any act or omission if, and to the extent that, it arises due to a reason beyond its reasonable control, including without limitation strikes, lockouts, fire, theft, vandalism, natural disaster, act of God, pandemic, or epidemic.
You indemnify, defend, and hold harmless Lucid Media in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses, and costs (including legal fees on a full indemnity basis), in connection with any of the following:
- any breach of this Agreement;
- your negligent acts or omissions or
- your use of the Services, including any third-party claims made in connection with or arising out of the Client’s use of the Service, other than use in accordance with this Agreement.
34. Intellectual Property and Supply of Raw / Editable files
All Intellectual Property Rights in Project Intellectual Property vest in, or will upon their creation vest in Lucid Media.
We grant you a non-transferable, non-exclusive license to:
- publish one copy of the Project and supporting Project Intellectual Property unless otherwise stated by Lucid Media; and
- use and reproduce the other Project Intellectual Property;
subject to the restrictions set out in paragraph (c).
You must not, without our prior written consent:
- adapt, create derivative works from or merge the template or other Project Intellectual Property;
- use the Project Intellectual Property for any purpose other than the specific purpose for which we have provided it;
- reverse engineer, disassemble or decompile the Project Intellectual Property;
- distribute, lend, resell, transfer, assign or sublicense the Project or other Project Intellectual Property, or allow any other person to use it except in the course of visiting the Project; and
- remove or attempt to remove any proprietary or copyright notices or any labels on the Project or other Project Intellectual Property.
These restrictions do not apply to extensions or plug-ins licensed to you under the terms and conditions referred to in clause 16, or some extensions licensed per domain or via a license key.
The supply of raw/editable files is at the discretion of Lucid Media. Additional Costs will apply and may be based upon a percentage of the original Proposal or a retrieval and release fee.
Stock images and commercial fonts remain the property of Lucid Media, under license or its licensors at all times and are governed under licensing restrictions and rules and are not transferable.
We do not warrant that your use of the designs, materials, or content produced by us for you in the course of the Project will not infringe any third party’s Intellectual Property Rights or any person’s Moral Rights, but we will advise you if we become aware of any infringement.
You agree to carry the Lucid Media logo or text hyperlink describing the nature of the service provided e.g., ‘Proudly Designed & Managed by Lucid Media,” in or under the website footer.
You agree to allow Lucid Media to use the Services provided for promotional and portfolio purposes.
Each party agrees to keep confidential and not to use or disclose except as permitted by these terms and conditions, any Confidential Information of the other party. The parties agree not to disclose these terms and conditions (including any schedules), or any details of a Purchase Order or Proposal. This obligation of confidence extends to Confidential Information obtained by a party before entering into this agreement.
The obligation of confidence in paragraph (a) does not apply to Confidential Information to the extent that is required to be disclosed by law or the rules of any stock exchange on which the recipient’s securities are listed, provided that the recipient discloses the minimum amount of Confidential Information required to satisfy the Law or rules.
The Party required to disclose the other Party’s Confidential Information as set out in paragraph (b) must:
- provide a reasonable amount of notice to the other Party of the proposed disclosure;
- consult with the other Party as to the form of the disclosure; and
- take all reasonable steps to maintain such Confidential Information in confidence.
Each party must take all steps and do all such things as may be necessary, prudent, or desirable in order to safeguard the confidentiality of the Confidential Information of the other party.
36. Calculation of Fees if not Specified
If the Fees are not specified (in a Purchase Order, Proposal, or otherwise) at the commencement of the Project, then we will charge you at the Professional Hourly Rates for all work that we carry out for you in the course of the Project.
The Professional Hourly Rates may change from time to time.
37. Payment of Fees and Additional Costs
You must pay the Fees and Additional Costs to us within 14 days of the date on which we issue you an invoice. All payments must be in cleared funds without deduction or set-off.
In relation to our Services, we may issue invoices for:
- payment as indicated in our Proposal or estimate;
- for Additional Costs on an ad hoc basis; and/or
- “Work in Progress” or retainer invoice at the beginning of each calendar month.
If you fail to pay any amount on the due date, we may, without prejudice to other rights and remedies under this Agreement or at law, charge interest on the amount due, calculated on a daily basis at 3% per month from the due date until the date on which Lucid Media receives payment; and/or
You will be liable for all costs of collection of overdue amounts, including legal costs and debt collection charges.
38. Suspension of Services
If your services have been suspended, this is typically the result of your invoice(s) being overdue and/or unpaid.
If your invoice(s) is Overdue and/or Unpaid:
Your account may be suspended due to non-payment of services. If payment is not made within fourteen (14) days of your invoice due date, your account(s) will automatically be suspended. If credit card payments are not able to be processed (e.g., transaction(s) declined due to inactive and/or expired credit cards, incorrect billing address, etc., alternative payment is due within fourteen (14) days. If after 14 days payment is not made, your account(s) will automatically be suspended pending final resolution. After twenty-one (21) days, Lucid Media may terminate your account and turn any outstanding balance over to debt collectors or lawyers for recovery.
Unless we expressly state otherwise, the Fees and Additional Costs do not include GST.
If at any time we decide that GST is payable on supplies made by us, or if the New Zealand Inland Revenue assesses GST on any such supplies, then the necessary amount will be added to, and form part of, the Fees or Additional Charges (as the case may be) at the GST rate prevailing at the relevant time.
We reserve the right to recover from you at any time such an amount on account of GST on supplies made by us to you under this agreement.
40. Duration of agreement and its termination
Upon execution by both parties, this agreement will take effect immediately and remain in effect until the purpose of the Project has been achieved unless it is terminated earlier under this clause 41.
A party may terminate this agreement by notice in writing to the other party if:
- the other party commits a material breach of this agreement that is capable of remedy (including failure to pay any amount due under this agreement) and fails to remedy that breach within 14 days after receiving notice from the other Party to do so;
- the other party commits a material breach of this agreement that is not capable of remedy (including a breach of clause 35 or clause 36);
- clause 7.b applies; or
- the other Party becomes Insolvent.
We may terminate this agreement if:
- You do not provide any information or materials requested within a reasonable time after being asked to do so; or
- We consider that mutual confidence and trust no longer exist.
Upon termination of this agreement under paragraph (b) or (c):
- Our obligation to carry out the Project ceases.
- Each party’s rights and obligations accrued prior to termination are not affected.
- The licence granted in clause 34(b) ceases.
- Any already issued and unpaid invoice owed to Lucid Media must be paid.
- Lucid Media is entitled to issue an invoice for any unbilled work carried out up to the date of termination, and you are liable to pay the same.
- Each party must immediately return to the other party (or destroy or delete as the other party directs) all Confidential Information of the other party in its possession or control, except to the extent that the party needs to keep such information to comply with its record-keeping obligations.
- Except as provided in this paragraph (d), clauses 32, 33, 34, 36, 41, 42, and 43 will continue.
You must not hire or employ or attempt, directly or indirectly, to hire or employ any person currently or formerly employed by or contracted to Lucid Media to work for you or for any other service provider to you, until six months after the date that person ceased working for or with Lucid Media.
Without prejudice to our other rights and remedies under this Agreement or at law, if any breach of clause 42a occurs:
- You will be liable for an amount equal to 12 months’ salary or contract payments otherwise payable to the relevant employee or contractor, calculated at the average rate paid to that person in the three months before you solicited that person; and
- We will be entitled to an extension of time to complete any task affected by the non-availability of the person solicited.
- Any notice given under this agreement must be in writing and addressed to the other party’s contact persons as notified by the other party.
- This agreement does not create a relationship of employment, agency, or partnership between the parties.
- We may subcontract our obligations under this agreement.
- The failure of a party at any time to insist on performance by the other party of an obligation under this agreement is not a waiver of any of its rights.
- If part or all of any of the provisions of this agreement is illegal or unenforceable, it will be severed from this agreement and will not affect the continued operation of the remaining provisions.
- The additional terms and conditions referred to in clauses 32, 33, 34, and 35 do not apply to the extent that they are not permitted under New Zealand law.
- We may change this agreement from time to time. The new terms will apply to any Project that commences after the date that we publish the changed terms and conditions. Your engagement of our Services after that date signifies your acceptance of the amended agreement.
In this agreement:
- A reference to “this agreement” means these terms and conditions (including any schedule) together with a Purchase Order or Proposal (if any).
- Headings and bold type are for convenience only and do not affect the interpretation of these terms.
- The singular includes the plural, and the plural includes the singular.
- Words of any gender include all genders.
- Other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning unless the context clearly requires otherwise.
- An expression importing a person includes any company, partnership, joint venture, association, corporation, or other body corporate and any government agency as well as an individual.
- A reference to any legislation includes all delegated legislation made under it, and amendments, consolidations, replacements, or re-enactments of any of them.
- A reference to a party to a document includes that party’s successors and permitted assignees.
- A promise on the part of two or more persons binds them jointly and severally.
- No provision of this agreement will be construed adversely to a party because that party was responsible for preparing this agreement or that provision.
- Specifying anything in this agreement after the words “include” or “for example” or similar expressions does not limit what else is included.