These terms and conditions apply, without restriction, to all products and services offered by the Cactus company (advertising and communication agency) :
Consulting, graphic design, editorial content creation, development of media, non-media, or web communication campaigns, website creation, community management and public relations. Placing an order for services implies the Client’s full and unreserved acceptance of these General Terms and Conditions.
The company Cactus studio graphique is referred to as Cactus agency, Cactus, or the AGENCY.
The term "CLIENT" refers to the natural or legal person who signs the purchase order or quotation, or who has placed their order in writing.
The list of work requested from Cactus by the Client prior to the beginning of any work is referred to as the "Specifications" (or "Cahier des charges").
The term SERVICES refers to the set of services made available to the Client by the agency, namely :
- Studies and Consulting
- Media strategy and consulting, media planning
- Execution of communication campaigns
- Visual design, naming
- Graphic and audiovisual communication
- Event communication
- Photography
- Press campaigns
- Website development, web campaign
- Media buying
- And, overall, any services requested by the client that have been the subject of a formal proposal from the agency
The purpose of these General Terms and Conditions is to define the terms under which the Cactus agency provides its services and products to the client. Detailed technical specifications for each product or service are set out in the purchase order, commercial proposal, or quote.
Article 1 – Review and acceptance of the General Terms and Conditions
A client who contacts the agency is deemed to have read and accepted these General Terms and Conditions.
These General Terms and Conditions of Sale are the legal basis for all our contracts. They supersede any conflicting clauses—whether printed or otherwise—proposed by the Client or used as the basis for their order, unless such clauses have been explicitly accepted by the agency.
These General Terms and Conditions of Sale can be viewed on the website www.cactus.nc.
By signing a quote or contract, or by using a service, the Client acknowledges having read these general and—where applicable—special terms and conditions, and accepts all established provisions and rules without any reservation or guarantee other than those stipulated above.
Article 2 – Placing an order
Unless otherwise agreed, the Cactus agency is bound by its clients' orders only upon the return of the "Quote," dated and signed by the client, with such signatures constituting acceptance of the terms of the order.
When placing a manufacturing, production, or go-live order, the client is asked by the agency to approve the start of the process.
The purpose of this validation is to verify the conformity of what is presented; it subsequently commits the party to accept the delivered product or service, provided it corresponds to what was validated.
Regarding text content, particular attention must be paid to the written information; the Cactus agency cannot be held liable for input errors, even if they were made by the agency itself.
The same applies to grammatical or spelling errors, which—unless otherwise specified (for instance, as part of a proofreading service)—remain the client's responsibility during their review.
The graphic and design approval stages provide a framework for the implementation of digital or physical materials; any changes made after a mockup has been approved may result in an additional quote.
Typically, a document to be signed and returned serves as validation; however, any other form of explicit communication can also serve as validation and constitute a binding commitment.
All raw materials and documents entrusted by the Client, as well as the work or services performed by the Cactus agency, constitute security for payment. In any event, these items may be subject to retention or suspension in the event of the Client’s failure to fulfill an obligation.
The benefit of the order is personal to the Client and may not be transferred to a third party without the authorization of the Cactus agency.
Article 3 – Order modification
Any order modification must be made in the same form as the initial order.
Any cancellation of an order in progress entitles the Cactus agency to invoice for the entire scope of work to which the client committed via the signed quote, given that the agency—by the very nature of its business—will incur personnel costs to meet the project specifications.
Article 4 – Subcontracting
Unless the client provides written instructions to the contrary, the Cactus agency is authorized to subcontract all or part of the work commissioned by the client. Fees or commissions for supervision and management may be charged in the event of subcontracting or media space purchasing.
Article 5 – Price
Prices are in CFP Francs (XPF), excluding taxes.
At the client's express request, the invoice may be issued in euros.
All costs due to this request shall be borne solely by the client.
Article 6 – Payment for services
The Cactus agency supports its clients in managing their communication needs, from conception to broadcast :
- - Strategy consulting
- - Visual identity (design, creation, production, …)
- - Print (art direction, implementation, illustration, graphic design, photography, print, mailing/routing…)
- - Digital (community management, media buying, web design, UX/UI, responsive development, SEO consulting, newsletters, motion design, video…)
- - Scenography (stand design, space planning, signage, 3D design and production, interior architecture, etc.)
Upon completion of each service, Cactus Agency issues an invoice corresponding to the quote. Invoices are payable within 30 days of the service's completion, unless otherwise agreed.
In the event of non-payment by the due date, the Cactus agency shall be entitled to claim a fixed late-payment penalty of 5% per month on the outstanding amounts until payment is made in full.
Any amount not settled within the required timeframe, any late payment, or any unpaid amount (in the event of payment instruments being returned by the bank due to non-payment) owed by the Client will result in the immediate suspension of services pending the rectification of the situation. Such suspension shall not give rise to any liability on the part of the Cactus agency.
Cactus Agency retains all intellectual property rights regarding its work until all invoices have been paid in full. Payment is deemed complete only upon actual receipt of funds; the delivery of a bill of exchange or any other document creating a payment obligation does not constitute final settlement. All creative rights remain the exclusive and permanent property of Cactus Agency and may only be transferred with the agency's written authorization, subject to terms agreed upon between the client and the agency.
Should the payment delay exceed two months, the Cactus agency reserves the right to initiate legal proceedings. The Client may not claim compensation from the Cactus agency for the suspension of services resulting from a payment default.
Article 7 – Unsuccessful proposals
Quotes from the Cactus agency are free of charge; however, if the proposed projects are not selected, they must be returned to us in their entirety (including both digital and paper documents) and remain the property of the Cactus agency.
Article 8 – Privacy
For the duration of the order’s execution—as defined in the purchase order or signed quote—the Cactus agency undertakes not to disclose any confidential information communicated to it by the Client.
Article 9 – Intellectual Property
The Cactus agency retains sole ownership of the copyright resulting from its services. The use of the creative work and services shall be carried out in accordance with the terms of the order placed and the legal and regulatory provisions in force at the time the contract was signed. Any use of the creative work not provided for in this contract requires prior express authorization and remuneration to be agreed upon.
In addition, technical fees associated with the delivery of source materials may apply. Corporate identification elements—specifically the logo, symbol, trademark, and packaging—must be the subject of a separate agreement specifying the terms of rights assignment and the associated remuneration.
Regarding third-party rights (copyright, related rights), these rights are negotiated by the Cactus agency in agreement with the Client, based on the requirements of the services provided, and are billed to the Client. Should any use other than that originally planned be contemplated, the Cactus agency will endeavor to negotiate with the third party to acquire the rights necessary for such use. In return, the Client undertakes to notify the agency of any use not originally specified in the order.
The assignment granted above does not cover personal rights (such as image rights or personality rights relating to natural or legal persons in the context of specific contributions like photography, illustration, or video). These rights are negotiated by Cactus Agency in agreement with the Client, based on the requirements of the services provided, and are billed to the Client. Cactus Agency will inform the Client of the cost and scope of the rights acquired.
The Client warrants that any document provided to the Cactus agency by the Client, their agents, and/or their representatives is free from any third-party copyright that would prevent the performance of the services promised by the Cactus agency.
The Client irrevocably undertakes, in the capacity of guarantor, to pay any damages claimed from the Cactus agency arising from the infringement of a third party’s copyright in connection with the performance of the services accepted by the Client.
The client expressly authorizes the Cactus agency to rework, retouch, and modify—among other things—all documents provided by the client, as well as to make reproductions as required for the fulfillment of the order.
The Client undertakes to notify the Cactus Agency, as soon as they become aware of them, of any infringement of the aforementioned copyright.
Work produced by the Cactus agency, whether credited or not, may under no circumstances be modified by a third party or a third-party company without the prior consent of the Cactus agency.
In the case of a creative work produced by the agency and subsequently retouched by a third party with the agency’s consent, the work must no longer bear any signature—neither that of the Cactus agency nor that of the party that performed the retouching.
Article 10 – Archives
Unless otherwise agreed in writing, Agence Cactus is not required to retain working documents, regardless of the medium (including, but not limited to, data, negatives, models, texts, translations, films, layouts, proofs, and materials used to execute the work). For technical security reasons, this release takes effect only 30 days after delivery of the goods.
In the event of an agreement regarding preservation, the costs of archiving, further processing, formatting, and editing shall be borne by the client. However, given the fragility of certain documents or physical/digital media, Agence Cactus cannot be held liable for any damage they may sustain.
Article 11 – References
The Client expressly authorizes the Cactus agency to use its name and the products or services developed on its behalf for commercial purposes.
Article 12 – Client Liability
The Client shall make available to the Cactus agency, on a confidential basis, all materials it is able to provide that are necessary for understanding the products and services covered by the order and their respective markets. The Client shall indemnify the Cactus agency against any consequences arising from legal action based on information provided by the Client regarding its products or services. Consequently, the Client bears responsibility for the information transmitted to the Cactus agency, particularly concerning the name, composition, qualities, and performance of the product or service covered by the order. The Client is also responsible for compliance with regulations specific to its business activities. Accordingly, the Cactus agency shall under no circumstances be held liable for projects submitted to and approved by the Client, particularly in the event of a liability claim.
The Client shall indemnify Cactus Agency and step into its place in the event of legal action and/or a judgment against the agency resulting from the Client’s failure to fulfill its various reporting obligations, without prejudice to full compensation for any loss or damage suffered by Cactus Agency.
Article 13 – Liability of the Cactus Agency
Cactus Agency must not fail to fulfill its advisory obligations. Cactus Agency ensures compliance with advertising regulations regarding the campaigns and media it designs and distributes on the Client’s behalf. Cactus Agency shall not be held liable for any decision made by the Client or any third party designated by the Client.
The Cactus agency undertakes to fulfill its obligations with the standard of care customary in its profession and to comply with prevailing industry best practices.
The Client may only hold the Cactus agency liable by proving wrongful conduct, it being understood that such liability is expressly limited to foreseeable and direct damages and may not exceed the total cost of the service that gave rise to the damage caused.
Article 14 – Force majeure
Generally, "force majeure"—defined as an unforeseeable, external, and irresistible event—constitutes valid grounds for terminating the contract without notice. The Client may not hold the Cactus agency liable in the event of contract termination due to *force majeure*. These three criteria apply alternatively to events such as strikes, natural disasters, pandemics, power supply interruptions, blockages of telecommunications and computer networks (including the connected networks of telecommunications operators), failure of dedicated lines, etc.
Article 15 – Waiver and Entirety
The failure of either party to require performance of all or part of the obligations set forth in these conditions, whether on a permanent or temporary basis, shall not constitute an amendment to said conditions nor establish any right against the other party.
If any provision of these conditions is held to be invalid under a rule of law, applicable legislation, or a court decision, it shall be deemed unwritten and shall not render the contract void.
Article 16 – Governing law and jurisdiction
Prior to any contentious proceedings, the parties shall seek an amicable solution to any disputes that may arise.
Failing an amicable resolution, any dispute arising from the performance or termination of this contract shall be subject to the exclusive jurisdiction of the courts. This clause applies even in cases of summary proceedings, incidental claims, or multiple defendants, and regardless of the method or terms of payment. This contract is governed by the law applicable in New Caledonia. In the event of a dispute, the courts of Nouméa, New Caledonia, shall have sole jurisdiction.
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