The Client engages made_in_ to provide the Services, and made_in_ accepts that engagement, on the following terms and conditions.

(a)        made_in_ shall provide the Services in accordance with a reasonable standard of skill, care and diligence, subject to any financial, physical, time or other constraints imposed by the Client or reasonably resulting from the nature of the engagement.

(b)        Any request by the Client to change the scope of the Services must be agreed by made_in_ in writing and will be subject to an additional Fee in accordance with clause 7(d)(i).

(c)         made_in_ shall not make any material change to Services approved in writing by the Client except with the Client’s instruction or agreement, or where site conditions or Project issues require made_in_ to exercise urgent discretion, and the Client is promptly notified.

(d)        The parties acknowledge that the completion of the Services will often be dependent upon external factors (such as weather) or the availability of third party resources (including models and props).  Accordingly, any dates or periods of time for delivery of Services are indicative estimates only, and whilst the parties will use all reasonable endeavours to meet those dates, any delay shall not entitle the Client to terminate this Agreement or claim remedies.

(e)        The Client agrees:

(i)          To provide made_in_ with a full brief of the Project requirements and objectives, together with any other information reasonably requested by made_in_ ; and

(ii)         To work constructively and in good faith with made_in_ in order to resolve any aspects of the Services or the Project, to enable the Services to be supplied.

made_in_ grants the Client a licence to use the Deliverables for the purposes, territories and time periods specified in the Proposal, subject to these terms and conditions.  This licence permits the Client to use the Deliverables on the conditions set out in clause 4 below.

The Client acknowledges that made_in_ retains the right to:

(a)        Enter the Deliverables into design competitions or awards and for their use in any material published in connection with promoting those competitions or awards; and

(b)        Use the Deliverables to advertise or otherwise promote made_in_ ‘s work; and

(c)         Use the Deliverables for any other purpose within made_in_ ‘s business activities.

(a)        The Client shall receive master copies of the completed Deliverables once full payment of the Fee has been received, and the licence to use the Deliverables begins from the date of full payment of the Fee (except where made_in_ otherwise gives express written permission).

(b)        The licence does not apply to incomplete or draft Deliverables.

(c)         The Client shall seek made_ in’s prior written consent for further use or re-use of the Deliverables, where that use falls outside the scope of the initial Agreement. made_in_ shall not unreasonably withhold consent, but may impose reasonable conditions governing the re-use of the Deliverables, including (without limitation) the payment of a reasonable usage fee.

(d)        made_in_ may suspend or revoke the licence if the Client fails to make any payment when due.

(e)        This licence must not be assigned to any third party without made_in_ ’s prior written permission.

(a)        All Intellectual Property Rights in the Services (with the exception of any pre-existing Intellectual Property Rights in materials supplied by the Client) shall remain the property of made_in_.  made_in_ does not accept commissions to create copyright works other than to agree to licence Services developed and selected by Loser Kid for delivery to the Client.  This overrides section 21(3) of the Copyright Act 1994 in accordance with section 21(4) of that Act.

(b)        The Client warrants that:

(i)           It owns or is lawfully authorised to use any pre-existing Intellectual Property Rights in materials supplied by the Client to Loser Kid; and

(ii)          made_in_ is fully entitled to use those materials without restriction, for the purposes of the Agreement.

made_in_ shall abide by the Privacy Act 1993 and shall take all practical steps to achieve privacy protection. 

(a)        The Client shall pay made_in_’s Fees by the due date specified in the Proposal, or if there is no date specified, within ten (10) days of invoice.

(b)        made_in_ may invoice the Client for Fees periodically, or at the completion of a phase of the Project, upon completion of a Deliverable or other Project milestone, or as the Project progresses and in the manner stipulated under the Proposal.

(c)         Where the Agreement has been entered into by an agent (or person purporting to be an agent) on behalf of the Client, the agent and Client shall be jointly and severally liable for the payment of all Fees due to made_in_ under the Agreement.

(d)        Where the Fee is calculated on a fee-estimate basis, the Fee is subject to reasonable upward adjustment in the event that:

(i)     After this Agreement is signed, the parties agree to change the scope of the Services pursuant to clause 2(b); or

(ii)    After completion and approval of any Services, the Client instructs made_in_ to alter the Services supplied; or

(iii)   Through no fault of made_in_, the provision of specific Services will take longer or require more work than reasonably contemplated.

made_in_ shall endeavour to provide advance notice of variations to Fee estimates pursuant to clause 2(d), but failure to do so will not prejudice or affect made_in_’s rights under this clause.

(e)        made_in_ shall notify the Client if specific Services need to be delayed or accelerated due to changes in instructions from the Client, or circumstances beyond made_in_’s control, and shall be entitled to an additional Fee to cover the costs of disruption and additional time spent.

(f)         Where the Fee is calculated on an hourly-rate basis, made_in_ shall keep records of time spent and shall provide that information to the Client on request.

(g)        The Client may not deduct, withhold or offset any sum from the amounts owed to made_in_under this Agreement.

(h)        The Client may not reduce or withhold payment to made_in_ because a third party involved in the Project has not carried out their obligations to the Client.

(i) Unless otherwise expressly agreed upon in writing by made_in_, fees payable to the Artists shall be determined based on the prevailing hourly and other rates established for the relevant services at the time of service provision. made_in_ holds the explicit authority from the Artists to compute fees in a manner that does not strictly adhere to the hourly rates. Artists reserve the right to adjust their rates; however, any such adjustments shall not apply to services already under a confirmed booking as documented by a quotation from made_in_. All direct expenses and incidental costs incurred by Artists in relation to the provision of services will be added to the Artists' fees and are to be borne by you. Additionally, you are obligated to compensate made_in_ with an administrative charge amounting to 15% of the aggregate sum of the fees, direct expenses, and incidental costs payable by you to the Artists.

(a)        Any monies not paid in full in accordance with clause 7 may be charged with interest at a rate of 18.75% per month or part month overdue, and made_in_ is, in addition, entitled to recover all debt collection costs and related legal expenses (on a solicitor/client basis).

(b)        In the event any monies due are not paid in full, made_in_ reserves the right to immediately suspend further work for the Client. If Services are suspended, made_in _ shall not be obliged to resume Services until the amount owing, and any costs incurred in relation to the suspension, are paid in full and made_in_ has adequate security for future Fees. made_in_ will not be liable to the Client or any person for losses arising from suspension of the Services.  Nothing in this clause prejudices or otherwise affects made_in_’s rights under clause 12.

(c)         Any monies paid may be allocated by made_in_ toward any amount owed by the Client.

(a)          Either party may raise a dispute by notice in writing to the other party.  The parties agree to use their best efforts to resolve any dispute which may arise under this Agreement through good faith without-prejudice negotiations.

(b)          If after five (5) Working Days the parties have not reached an agreed outcome, they shall cease discussions for two (2) Working Days before resuming discussions.

(c)          If, after a further discussion period of five (5) Working Days, the parties remain unable to reach an agreed outcome, the parties may take such further steps as they choose.

The Client undertakes to indemnify made_in_ against any and all loss, damage, liability or expense (including costs on a solicitor-client basis):

(a)          Suffered or incurred as a result of any breach by the Client of the Agreement or in recovering any moneys due; and

(b)          Arising out of a claim by a third party against made_in_ alleging that the Services (excluding original material developed solely by made_in_) infringes any third-party Intellectual Property Rights, and such loss, damage, liability or expense shall be moneys due under the Agreement.

(a)          The Client acknowledges that the Client is responsible for the storage and backup of the deliverables supplied by made_in. made_in_ will follow its usual backup procedures (if any) upon completion of the Services, made_in_ shall not be liable under any circumstances if unable to produce backups or future reproductions of the Deliverables upon the request of the Client. Where backups are available, these may be made available to the Client for a fee.

(b)          The Client’s right to use the Deliverables under the Agreement does not include the right to remove, alter or otherwise affect any rights information accompanying or relating to the Deliverables, including (without limitation) any notices or metadata accompanying or part of the Deliverables recording creator details, copyright ownership or publication status of the Deliverables. The Client shall not alter or remove any notices attached to the Deliverables and shall take all reasonable steps to respect and preserve made_in’s copyright and other rights. Where made in has placed restrictions on access to or use of the Deliverables, the Client shall not defeat (or attempt to defeat) such restrictions.

(a)   Termination for Cause: Without prejudice to any other right or remedy it may have, whether under the Agreement, under statute or otherwise, either party may immediately terminate the Agreement by written notice to the other party if:

(i)     The other party is in breach of any term of the Agreement and such breach is not remedied within ten (10) Working Days of notifying the other party;

(ii)    The other party commits an act of bankruptcy or makes any assignment or composition with its creditors;

(iii)   Liquidation or bankruptcy proceedings are commenced for the other party; or

(iv)   The other party has a receiver or manager or statutory manager appointed.

(b)   Consequences of Termination:

(i)     Upon postponement or termination of the Agreement, made_in_ shall be entitled to payment of all Fees (including fees, disbursements and costs incidental to the orderly termination of the Agreement).

(ii)    Early termination of the Agreement will not prejudice or affect the accrued rights or liabilities of each party to the other.

(c) Cancellations of Bookings Subject to Weather

This clause applies to bookings which allow you to cancel a booking due to bad or inclement weather.

You do not have to pay any of the Fee if:

(i)   The booking is cancelled by you or Your Personnel because of bad or inclement weather; and

(ii)   The same booking is made for Services to be provided at a later date (such later date to be a date that is reasonable and suitable for the parties); and

(iii)   It is the first occasion on which the booking has been cancelled.

You must pay half the Fee if:

(iv)   The booking is cancelled by you or Your Personnel because of bad or inclement weather; and

(v)    The same booking is made for Services to be provided at a later date (such later date to be a date that is reasonable and suitable for the parties); and

(vi) It is the second occasion on which the booking has been cancelled.

(vii) You must pay the full Fee (including but not limited to assistant, hair, makeup, wardrobe, and other crew fees, photography fees, talent fees, and production fees) to made_in_ when you cancel a booking other than in accordance to the aforementioned.

(d) Cancellations of Bookings Not Subject to Weather

Clause (d) applies to cancellations of a booking where the Services were to be provided but is cancelled for reasons unrelated to the weather.

You have to pay half of the Fee to made_in_ if:

(i) You provide made_in_ with at least two (2) clear business days written notice of the cancellation.

You must pay the full Fee (including but not limited to assistant, hair, makeup, wardrobe, and other crew fees, photography fees, talent fees, and production fees) to made_in_ if:

(ii) You provide made_in_ with less than one (1) clear business day written notice of the cancellation.

made_in_ shall not be liable for any loss, damage or impact upon the Services arising directly or indirectly due to an act of God, fire, armed conflict, labour disputes, civil commotion, intervention of a government, accidents, interruption to transportation, delays or non-performance by third party suppliers, weather or any other cause outside made_in_’s control.

made_in_ shall not be liable for:

(a)          Any loss or damage arising by reason of any delay in the completion or delivery of the Services; or

(b)          Any loss of profits; or

(c)          Any indirect or consequential loss of whatever nature; or

(d)          Any loss resulting from any errors or omissions arising from incorrect information provided by the Client, or failure by the Client to provide information, or an oversight or a misinterpretation of a Client’s verbal instructions.

Subject to clause 14:

(a)           Neither Loser Kid nor any of its directors, officers, employees, agents and contractors (“Personnel”) shall be liable to the Client or any third party for any loss, damage, cost or expense arising directly or indirectly in connection with the provision of any Services or the operation or performance (or non-operation or non-performance) of any Services. This exclusion of liability applies to liability in contract, tort (including negligence), statute, and any other principle of legal liability. 

(b)           Without limiting the generality of subclause (a), and except as separately agreed in writing, Loser Kid shall have no responsibility or liability for:

(i)           The selection, implementation, interoperability and performance of any third party products or and services used in association with the Services; or

(ii)           Any budget overspends or financial management of the Project; or

(iii)          The acquisition, accuracy or validity of any consents, licences, permits and authorisations required to lawfully undertake the Project; or

(iv)          Model or property fees, releases and contracts.

(c)           In the event that Loser Kid or any Personnel becomes liable for any costs, loss or damage suffered by the Client, however caused (including negligence), arising out of or connected with Project that is not (or cannot lawfully be) excluded by these terms and conditions, such liability shall be limited to $20,000.

(a)          made_in_ may engage reputable contractors in order to assist in completing the Services.

(b)          Where made_in_ engages contractors at the Client’s request, made_in_ shall be acting as the agent of the Client, and is not liable for the performance or remuneration of those contractors.

The Proposal, together with these Terms & Conditions and all attachments, constitute the entire agreement (“Agreement”) between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, on the subject matter of this contract.  In the event of a conflict between the Proposal and the Terms and Conditions, the Proposal shall prevail to the extent required to resolve the conflict.

(a)        No right or obligation under this Agreement shall be deemed to be waived except by notice in writing signed by each party.

(b)        The provisions of this Agreement shall not be varied, except by agreement in writing signed by the parties.

If made_in_ is present on the Client’s or other third party’s premises for the purpose of the Services:

(a)          The Client shall promptly notify made_in_ of any health and safety policies in place on those premises; and

(b)          made_in_ shall at all times comply with all reasonable health and safety requirements and safety-related instructions provided by the Client.

made_in_ has not and will not during or after the term of the Agreement assume any obligation, as the Client’s agent or otherwise, which may be imposed on the Client under the Health and Safety at Work Act 2015, and the parties agree that Loser Kid will not be deemed to be a PCBU or an officer of the Project under that Act.

(a)           This Agreement shall not be assigned or transferred without the prior written consent of made_in_.

(b)           This Agreement shall be construed in accordance with and governed by the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Agreement.

(c)           The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.

(d)           Currency amounts are in New Zealand dollars unless otherwise stated, and all communications between the parties must be in English.

(e)           If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force and effect apart from such provision. 

(f)            Nothing in this Agreement shall be construed as evidence of a partnership between the parties or their successors or assigns, and no provision of this Agreement shall empower a party to act on behalf of the other in any way, or to incur any liability on behalf of the other.

(g)           Notices under the Agreement can be delivered in person, or by email to the addresses notified or user by each party (which may be updated from time to time by each party).

In these Terms and Conditions, the following meanings apply:

“Agreement “ has the meaning described in clause 17;

“Client” means the client specified in the Proposal;

“Deliverables” means all deliverables supplied by Loser Kid, including the deliverables listed in the Proposal;

 “Fee” means the total fee payable by the Client in consideration for the Services and associated rights as detailed in the Agreement;

 “Intellectual Property Rights” means any patents, copyright, designs, and any other right granted by the operation of law which confers protection on any written or artistic work created by intellectual effort and all associated intangible assets created as a by-product;

“made_in_” means made in Limited (NZBN 9429042505693), a duly incorporated company having its registered office in Auckland, New Zealand;

“Project” means the project described in the Proposal, for which the Services are required;

“Proposal” means an estimate, engagement letter, quote, proposal or statement of work (or similar) provided by (or accepted in writing by) Loser Kid, setting out the Services to be supplied;

“Services” means the services, activities and tasks to be performed and Deliverables to be provided by made_in_, as set out in the Agreement, together with all other work to be performed by made in to supply the Deliverables and perform its other obligations under the Agreement;

 “Working Days” means days other than Saturday, Sunday, public holidays, or days from 23 December – 6 January (inclusive).