Terms & Conditions of Trade

These terms and Conditions of Trade govern all services (the "Services") provided by 11 Creative Limited t/a Jason Lerke ("Jason Lerke", "Company", "we" or "us") to you, the client ("Customer", "you" or "your").

  1. Definitions
    1. In these terms and conditions:
    1. "Company" means Jason Lerke.
    2. "Customer" means the purchaser of the Service.
    3. "Deposit" means the initial upfront fee for the Services engaged upon by the Customer confirming the Services to be provided by the Company.
    4. "GST" means goods and services tax, as provided in the Goods and Services Tax Act 1985, or any similar or replacement tax, duty or impost.
    5. "Terms of Trade" means the terms set out in this document, as amended or replaced by the Company from time to time. Any Services supplied or completed by the Company are supplied on the Terms of Trade. The Terms of Trade will bind any Services provided by the Company to the Customer.
    6. "Third Party Costs" means any costs charged by an independent third party including but not limited to Google, Meta, LinkedIn.
    7. "Service" means any products, goods, and services supplied by the Company, or in contract work completed by the Company, and any other services supplied under these Terms of Trade.
    8. "Quote" means the description and fee for the provision of Services by the Company to the Customer.
    9. "Working Day" means any day other than;
      1. a Saturday or Sunday; or
      2. a day that is a public holiday, statutory holiday, or regional anniversary holiday observed in the place in New Zealand where the relevant obligation is to be performed.
      3. If an act, notice, payment, delivery, or other step is required to be completed on a day that is not a Working Day, it will be deemed due on the next Working Day.
      4. Unless these Terms and Conditions state otherwise, references to a number of Working Days mean clear working days and exclude the day on which the relevant notice is given or event occurs and include the last Working Day in the period.
  2. General
    1. All Services from the Company to the Customer are made on these Terms of Trade unless otherwise agreed, in writing, by the Company.
    2. By accessing the Company's Services, the Customer agrees to be bound by these Terms and Conditions, and any subsequent terms and conditions issued by the Company.
    3. The Customer acknowledges and agrees to the terms and conditions of any third party provider that the Company uses in carrying out provision of the Services.
    4. The Terms of Trade, as read with any Quote provided by the Company and accepted by the Customer contain the whole of the terms between the parties.
    5. If there is a conflict between the Terms of Trade and anything contained in a Quote provided by the Company, the Quote applies.
    6. No failure of the Company to exercise a right under the Terms of Trade shall be regarded as a waiver of that right.
    7. If any provision of these Terms of Trade is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect and the parties shall adjust their respective rights and obligations in accordance with the spirit and intent of the parties as shown by the Terms of Trade.
    8. The Customers' rights and obligations conferred by these Terms of Trade are non-assignable.
    9. The Company reserves the right to modify at any time the whole or partial contents of these Terms of Trade.
  3. Confirmation of Services
    1. The Company will provide a Quote for Services in writing. The Quote will contain a description of the Services and the costs of the Services (Fee).
    2. All Fees are exclusive of GST and in New Zealand Dollars.
    3. The Quote is valid for thirty days from issue.
    4. The Customer must provide written acceptance of the Quote. Upon written acceptance by the Customer, the Company will render an invoice for the Deposit.
    5. Services are not confirmed and the Company will not begin work on the Services until the Customer pays the Deposit.
    6. Any variation or alteration to the Quote may be subject to an increase in the Fee. In the event the Fee is to increase, the Company will notify the Customer in writing. The Customer will have five Working Days in which to accept the change in the Quote. If the Customer does not accept the Quote, the Company may cancel the Services.
  4. Timeframes
    1. The Quote will record the expected timeframe for supplying the Services.
    2. If the Services require a faster turn-around time, and provided the Company is able to accommodate this, the Company will charge an automatic urgency fee, which will be payable as part of the Deposit.
    3. The Company will endeavour to deliver the Services within the timeframe detailed in the Quote or otherwise as communicated to the Customer. The Company will communicate any delays in writing to the Customer as and when possible, but the Company will not be liable to the Customer for any delay in completing the Services or any loss suffered by the Customer as a result of the delay.
  5. Payments
    1. The Fee detailed in the Quote for the Services will be charged as follows:
      1. For one-off projects:
        1. The Company will issue an invoice to the Customer for an amount equal to 50% of the Fee and provide copies of invoices for all expected Third Party Costs to be paid directly by the Customer (together included as the Deposit).
        2. The remaining 50% of the Fee being invoiced progressively based on the percentage of the Services finished each month until completion of the Services.
        3. Payment by the Customer is required on issuance of the invoice and before the Services begin.
      2. For ongoing Services:
        1. The Company will issue an invoice to the Customer for an amount equal to the value of the first month of Services to be provided by the Company and provide copies of invoices for all expected Third Party Costs to be paid directly by the Customer (together included as the Deposit).
        2. From then on, the Company will render an invoice at the beginning of each month for the Services to be completed that month.
        3. Payment is required on issuance of the invoice and before the Services for that month begin.
    2. The Customer is responsible for arranging payment of all Third Party Costs directly and is liable to the third party for these costs. The Company may choose to delay beginning any work on the Services until such payments are made.
    3. The Company's invoices are due on the stated due date. If payment is not received by the due date, the Company reserves the right to charge interest in accordance with clause 6.3.c below or cancel the Services.
    4. The Company has the right to delay provision of any Services if the Customer has failed to make any payments due.
    5. All amounts paid to the Company by the Customer are non-refundable unless agreed between the parties.
  6. Default
    1. Default by the Customer means:
      1. Failure by the Customer to make payment to the Company on the due date, or
      2. the appointment of a Statutory Manager, receiver, liquidator or voluntary administrator, or
      3. the Customer committing an act of bankruptcy, or
      4. entering into a scheme of arrangement with its creditors,
    2. In the event of Default under these Terms of Trade, the Company is entitled to immediately exercise all or any of its remedies under clause 6.3.
    3. Where a Customer is in Default:
      1. The Company may suspend supply of Services.
      2. The Customer agrees to pay on demand, on a full indemnity basis, all legal and debt collection agency costs incurred by the Company in enforcing against the Customer any of the Company's rights or remedies.
      3. The Company may charge the Customer interest at the rate of 18% per annum, calculated on a daily basis and compounded monthly, on any amount owing but unpaid. Such interest will continue to run after as well as before judgment.
      4. The Company may cancel any arrangement or provision of Services between the Company and the Customer, or suspend the performance of such arrangement or Services pending payment without being liable to the Customer for any losses (of any kind whether direct, indirect, or consequential).
      5. The Company may require immediate payment of all sums owing to the Company whether due or not.
      6. The Company may offset any amounts owed by the Company to the Customer and immediately withdraw any credit facilities.
  7. Ownership
    1. The Services may only be used for the purpose set out in the Quote. If the Customer would like to use the Services for any other reason not detailed in the Quote, the Company must agree in writing. This is due to any restrictions on material provided by the Customer or Company. Any change to the purpose may incur an additional fee.
    2. The Company is not liable in any way for any direct, indirect, incidental, special or consequential losses or damages resulting from the Customer's use of the Services.
    3. The Company retains ownership of the raw footage and design files. The Customer may, for an additional fee, obtain copies of the raw footage and design files from the Company.
    4. The Services are the property of the Company until the Customer has paid the Fee, all Third Party Costs, and any other charges owing by the Customer to the Company in full.
    5. On Completion of the Services, the Company will retain all content, files, imagery and any other material produced in the provision of the Services (Files) for a maximum of 12 months. If the Customer wishes to access the Files held by the Company during that 12-month period, the Company reserves the right to charge a fee for its time to provide the Files. On the expiry of that 12-month period, the Company will destroy any Files it no longer wishes to keep. The Company reserves the right to retain any Files it chooses for its own purposes.
  8. Cancellation
    1. If either party wishes to cancel the provision of Services, the cancelling party must provide the other party thirty Working Days' notice of their wish to cancel in writing.
    2. Any Deposit or Fee paid by the Customer to the Company is non-refundable.
    3. The Customer is to pay for any Services completed by the Company, including all Third Party Costs incurred, up until the Company receives notice of the cancellation or any period beyond if the Company has undertaken Services beyond the cancellation period.
    4. If the Company has access to the Customers social media accounts, the Company will work with the Customer to re-remove the Company's access to such accounts within a reasonable timeframe of receiving the notice of termination from the Customer. There may be a fee from the Company for the time to handover this access.
  9. Privacy and Confidentiality
    1. The Customer authorises the Company to collect, retain, and use information provided by the Customer.
    2. The Company has the right to use any material produced in the course of the Services for the Customer for its own promotional materials.
    3. The Customer allows the Company to reference work completed for the Customer on the Company's website and portfolio for publicity and demonstration purposes.
  10. Notices
    1. All notices under these terms of trade shall be in writing and shall be deemed to have been given only if emailed to such address as each party shall from time to time determine by written notice to the other party or in the absence of such determination, the email address that has been primarily used between the parties for communication in relation to the supply of Services. For the purposes of this clause, the email address for notices to the Company is [email protected].
  11. Disputes
    1. If there is a dispute between the parties in respect to the interpretation and/or performance of these Terms of Trade, then the parties shall attempt to resolve the dispute in good faith negotiations and discussions.
    2. If negotiations and discussions referred in clause 11.1 fail to resolve the relevant dispute, either party may (by written notice to the other party) require the dispute be submitted for mediation in accordance with the protocols of the Arbitrators and Mediators Institute of New Zealand. In the event of any such submissions to mediation:
      1. the mediator shall be deemed to be not acting as an expert or as an arbitrator;
      2. the mediator shall determine the procedure and timetable for mediation; and
      3. the cost of the mediation shall be shared equally between the parties.
    3. Neither party may require any arbitration, or issue any legal proceedings (other than for urgent interlocutory relief), in respect of any such dispute, unless that party has first taken all reasonable steps to comply with clauses 11.1 and 11.2.
  12. Warranties and Consumer Guarantees Act 1993
    1. Save for any warranties provided in writing by, or imposed by law on the Company in relation to Services supplied by the Company to the Customer, the Company makes no representation and gives no assurance, condition, or warranty of any kind to the Customer in relation to the Services, and accepts no liability for any assurance, condition, warranty, representation, statement, or term not expressly set out in the Terms of Trade or in any Quote given by the Company to the Customer.
    2. The provisions of the Consumer Guarantees Act 1993 are excluded to the maximum extent possible.
    3. The benefit of any warranties and conditions conferred by the Company on the Customer are personal to the Customer and are non-assignable.
  13. Liability and Indemnity
    1. The Company is not responsible for any defect, failure, or delay resulting from the provision of the Services to, or the acts or omissions of, any third party.
    2. Except as provided in the Terms of Trade, the Company shall not be liable for any loss or damage of any kind whatsoever, including consequential loss (including loss of profits) or property damage, whether suffered or incurred by the Customer or another person, and whether in contract, or tort, or otherwise, and whether such loss or damage arises directly or indirectly from the Services provided by the Company to the Customer.
    3. The Company will attempt to identify and prevent any errors or omissions, however the Customer is ultimately responsible for reviewing the Services before approving it. The Company is not responsible if any error or omission is undetected and forms part of the final product.
    4. The Customer indemnifies the Company from any loss, expense, and damage the Company incurs while performing the Services for the Customer.
    5. The Customer warrants that any materials provided by the Customer to the Company are owned by the Customer or the Customer has obtained permission from the owner to use the materials.
    6. If the Customer wishes to make a claim for any breach of these Terms of Trade, the Customer must send it, in writing, to the Company within ten Working Days of receiving the final Services. To the extent permitted by law, the Customer's ability to make any claim against the Company in relation to the Services, outside this time is excluded. Any claim made within the timeframe in this clause will be limited to the value of the Services provided by the Company to the Customer.
  14. Governing Law and Jurisdiction
    1. These terms of trade are subject to, governed by and interpreted in accordance with New Zealand law, and the parties submit to the exclusive jurisdiction of the courts of New Zealand in respect of any dispute in relation to these Terms of Trade.
    2. The Company reserves the right to refuse to include materials submitted by the Customer which does not conform to advertising standards or is in breach of any law of New Zealand.