- PROVISION OF SERVICES
- Real Experience Limited (RX) is a marketing agency in the business of creating and managing digital marketing strategies (Services) for its clients (Client(s)).
- RX offers subscription based Services, which are invoiced monthly for the duration of the subscription, and non-subscription based Services, which are invoiced monthly and on completion of the Services.
- RX shall perform the Services, and the Client shall pay RX the fees (Fees) in accordance with these Terms and Conditions (Terms).
- These Terms apply to all instructions provided by a Client to RX, and all work carried out by RX for a Client.
- If a Client consists of more than one person, these Terms binds them jointly and each of them severally.
- Where a Client is a company, trust, or other entity, the person or persons engaging RX on behalf of the Client personally warrant(s) that that person or those persons have the power to bind the Client, and that the Client will perform its obligations under these Terms.
- Every time the Client uses RX Services it is deemed to be reconfirmation of the Client’s agreement to the Terms.
2. FEES AND PAYMENT
- The Client will pay all Fees invoiced by RX within 7 days following the receipt of invoice. Subscription based Clients will also set up a monthly automatic payment to pay their monthly subscription Fees.
- RX will set Fees based on a number of factors, including RX’s assessment of the time involved, expertise required and the urgency of Client instructions. For ongoing matters, Fees may be reviewed and amended by RX as notified to the Client from time to time.
- RX may provide an estimate of costs to the Client for providing the Services from time to time (Estimate). If an Estimate has been provided, the terms of that Estimate can be varied at the sole discretion of RX up until the work to be carried out is commenced, and can be further varied if any circumstance arise that were unforeseen or which increases the cost to RX of carrying out such work (whether of the client’s making, that of a third party and/or otherwise).
- RX may ask the Client to pre-pay Fees. RX may do this, on reasonable notice, at any time. Reasons for doing so may include having difficulty with getting payment in the past (which is only fair), the nature of the work, the amount of money RX will expend in providing the Services, or if the Client not worked with RX in the past.
- Where an estimate has not been provided, or where RX has been asked to complete work that is outside or in addition to the scope of an estimate, RX will charge a rate of $80 per hour for work completed in the RX office, and $165 per hour for all work completed outside of the RX office.
- RX may incur costs in providing the Services for the Client. For example, RX may be required to incur printing costs when printing product or other promotional material, or hosting or content fees when creating websites. The Client will be responsible to reimburse RX for all costs incurred by RX in providing the Services, and RX is entitled to charge an additional fee equivalent to 10% of those costs incurred.
- Any expenses, disbursements and legal costs incurred by RX in the enforcement of any rights contained in this contract shall be paid by the Client, including any reasonable solicitors’ fees or debt collection agency fees.
- All sums payable by the Client shall be made in full without set-off or counterclaim and, except to the extent required by law, free and clear of any deduction on account of tax or otherwise. A dispute, mediation, or arbitration, between RX and the Client, does not entitle the Client to set off against, or withhold payment of, any money owed to RX.
- If the Client fails to pay any amount due under these Terms, RX may without prejudice to its other rights require the Client to pay interest on the amount due from the due date until the date of payment, at a rate equal to 5% above the current overdraft rate that RX has with its principal banker (in addition to the Client remaining liable for the full amount outstanding).
- 2.10.All Fees noted in these Terms are GST exclusive unless stated otherwise, and are in New Zealand Dollars.
- RX may from time to time agree to act for a Client on an exclusive basis in the Client’s elected industry, with the effect that RX will not act for a competitor of the Client in that industry. Any such arrangement will only be effective if it has been made in writing, by way of separate written agreement between the parties (Exclusivity Agreement), and the Client will pay RX a monthly retainer payable in advance (Retainer) for such exclusivity.
- RX shall be entitled to revise the amount of the Retainer that the Client will be required to pay by providing the Client not less than one (1) months written notice to the Client of the new Retainer.
- The Client is entitled to terminate the Exclusivity Agreement by providing not les than one (1) months written notice to RX. RX shall not be entitled to refund any part of the Retainer paid in advance to the Client.
- If the Client fails to pay the Retainer when due, the Exclusivity Agreement will be at an end with immediate effect.
- The Client agrees that if there is any conflict between an Exclusivity Agreement and these terms, these terms will override the Exclusivity Agreement.
4. CLIENT OBLIGATIONS
- To provide the Services, RX often needs input and information from the Customer. The Customer will use reasonable endeavours to provide information to RX as and when requested, within a reasonable timeframe. The Client acknowledges that failure to do so can impact on RX’s ability to provide the Services, and can cause RX to spend more time on the Services, which can increase the Fees charged.
- The Client will from time to time provide text and make statements to be used and published as part of the RX Services. In providing that text or making those statements, the Client acknowledges:
- The Client will be responsible for the correctness of all text and statements, and the inclusion of the pictures and their location on any part of the materials;
- The Client carries responsibility for the accuracy of any statements delivered by the Client to be used in any of the Services and acknowledges that RX is simply relying on information provided by the Client, RX has not made any independent enquiry as to the accuracy of the information which the client warrants as completely true and correct; and
- The Client warrants that there has been no infringement of any third party’s intellectual property rights and that all necessary consents by third parties either as to the use of the intellectual property rights and/or the use of any imagery of that third party have been obtained.
5. INTELLECTUAL PROPERTY
- Intellectual Property means all intellectual property and proprietary rights (whether registered or unregistered) owned by RX prior to performance of the Services, developed by RX in performance of the Services or developed by RX outside of, or after, performance of the Services, and without limitation includes business names, trade or service marks, any right to have information (including confidential information) kept confidential, patents, patent applications, drawings, concepts, files, discoveries, inventions, improvements, trade secrets, technical data, formulae, databases, know-how, logos, designs, design rights, copyright, manuals, protocols, procedures, manuscripts or documentary records, whether in print form or electronically and similar industrial or intellectual property rights.
- All RX Intellectual Property will remain the property of RX.
- RX shall retain all rights to use any Intellectual Property for its own purposes without the prior consent of the Client.
- RX grants to the Client a world-wide, non-exclusive, royalty free licence to use RX Intellectual Property for the purpose agreed to between the Client and RX to the extent that it is needed for the enjoyment and benefit of the Services.
- RX shall be entitled to be named as the author on all publicity aids and in all advertising campaigns of the Client.
- If these Terms are is suspended or terminated by either party the Client shall cease to use the Supplier’s Intellectual Property.
- RX agrees to keep confidential all information relating to the Client or any client of the Client, which is at any time made available to RX.
- The Client shall not alter or amend (nor engage any third party to alter or amend) any of the Services and/or product delivered and acknowledges that the Client shall have no right to further develop or edit such Services or product.
6. LIABILITY & LIMITATION
- RX shall not have any liability or responsibility to the Client for any loss which does not flow directly or naturally (i.e. in the ordinary course of things) from a breach of these Terms including, in each case consequential loss of business or profits or other loss. RX shall only be liable for losses (excluding loss of business or profits) which flow directly or naturally from a breach of these Terms up to a maximum of the amount paid by the Client for the Services for the three-month period preceding the date of the event giving rise to the claim under these Terms.
- Without limiting clause 6.1 in any way, under no circumstances shall RX be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labour disputes, riots, insurrections, civil disturbances, shortages of labour or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
7. SUSPENSION AND TERMINATION
- RX may suspend its obligation to supply the Services if a dispute is raised in accordance with clause 9, until that dispute has been resolved, or if RX has notified the Client that the Client breached these Terms, and the Client has failed to remedy that breach.
- RX may suspend its obligations to supply the Services if the Client’s Fees are in arrears.
- Either RX or the Client may terminate their agreement pursuant to these Terms by providing written notice of not less than 1 month to the other.
- Either party may terminate their agreement pursuant to these Terms immediately by notice in writing, upon:
- the other party committing any breach of their agreement or these Terms that is incapable of remedy;
- the other party failing to remedy any breach of their agreement or these Terms that is capable of remedy within 30 days of notice of that breach having been given by the non-defaulting party to the other party; and
- the commencement of liquidation or the insolvency of the other party (except for the purposes of solvent amalgamation or reconstruction) or upon the appointment of a receiver, statutory manager or trustee of the other party’s property.
8. FORCE MAJEURE
- Either party may suspend its obligations under these Terms if it is unable to perform as a direct result of a war, riot, strike, natural or man-made disaster or other circumstance of a similar nature (Force Majeure Event). Any such suspension of performance must be limited to the period during which the Force Majeure Event continues.
- Where a party’s obligations have been suspended pursuant to clause 8.1 for a period of 30 days or more, the other party may immediately terminate the agreement pursuant to these Terms by giving notice in writing to the other party.
9. DISPUTE RESOLUTION
- Where any dispute arises between the parties concerning these Terms or the circumstances, representations, or conduct giving rise to the agreement, no party may commence any court or arbitration proceedings relating to the dispute unless that party has complied with the procedures set out in this clause 9.
- The party initiating the dispute (the first party) must provide written notice of the dispute to the other party (the other party) and nominate in that notice the first party’s representative for the negotiations. The other party must within seven days of receipt of the notice give written notice to the first party, naming its representative for the negotiations. Each representative nominated shall have authority to settle or resolve the dispute.
- If the parties are unable to resolve the dispute by discussion and negotiation within 14 days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation.
- The mediation must be conducted in terms of the LEADR New Zealand Inc Standard Mediation agreement. The mediation must be conducted by a mediator at a fee agreed by the parties. Failing agreement between the parties, the mediator shall be selected and his or her fee determined by the Chair for the time being of LEADR New Zealand Inc.
- 10.1.RX reserves the right to change these Terms from time to time without prior written notice being provided. Any amendment to the terms and conditions shall become effective on any amendments to RX’s Terms being posted on its website at www.realexperience.co.nz.
- 10.2.No exercise or failure to exercise or delay in exercising any right or remedy by a party shall constitute a waiver by that party of that or any other right or remedy available to it.
- 10.3.Any provision of these Terms that is illegal, invalid or unenforceable will be severed to the extent that it is illegal, invalid or unenforceable, with the remainder of these Terms continuing in full force.
- 10.4.The agreements, obligations and warranties contained in these Terms shall not merge on completion of the transactions contemplated by it but shall remain in full force until satisfied.
- 10.5.Services provided to all business Clients or for commercial purposes are expressly excluded from all provisions under Consumer Guarantees Act 1993.
- 10.6.These Terms shall be governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
- We may collect your personal information (including, without limitation, your name, email address, phone number, and postal address) when you use this website. You may decide not to provide your personal information to us. However, if you do not provide it, we may not be able to provide you with access to certain information or services.
3. Automated collection
- When you visit this website, we may use automated technology (such as usage monitoring software, cookies, and sessions) to collect and store certain information about your visit. Please see the Cookies for more information.
- A cookie is a small portion of data sent from a website and stored in a user’s web browser while a user is browsing a website. When the user browses the same website in the future the cookie data can be retrieved by the website to notify the website of the user’s previous activity.
- For more information on how to adjust your web browser settings for cookies see www.aboutcookies.org
- Please note:
- Accepting a cookie does not give us access to your computer or personal information stored on your hard drive under any circumstances.
- Although you can configure your web browser to not accept cookies, if you do so you may experience a resulting loss of functionality of this website
2. Use and disclosure
- We will not use or disclose your personal information except in accordance with the New Zealand Privacy Act 1993. We may use your personal information to:
- communicate with you;
- analyse usage of this website;
- provide you with further information, news, and promotional material; and
- improve the content of this website and to customise this website to your preferences.
- We will not sell, rent, or lease your personal information to third parties. Your personal information will be made available internally for the above purposes and we will not disclose your personal information to third parties unless you have given us prior approval. By providing us with your personal information, you consent to our using and disclosing your personal information in the manner set out above.
- We will only use or disclose personal information that you have provided to us, or which we have obtained about you:
- for the above-mentioned purposes;
- if you have authorised us to do so;
- if we have given you notification of the intended use or disclosure and you have not objected to that use or disclosure;
- if we believe that the use or disclosure is reasonably necessary to assist a law enforcement agency or an agency responsible for national security in the performance of their functions;
- if we believe that the use or disclosure is reasonably necessary to enforce any legal rights we may have, or is reasonably necessary to protect the rights, property and safety of us, our customers, or others; or
- if we are authorised, required or permitted by law to disclose the information.
- We will not use or disclose your personal information except in accordance with the New Zealand Privacy Act 1993. We may use your personal information to:
3. Storage and security
- Personal information collected on this website is collected and held by RX. We will take reasonable efforts to protect personal information that is held by us from loss, misuse, unauthorised access, disclosure, alteration, or destruction.
4. Third party websites
- This website may contain hyperlinks to third party websites. We are not responsible for the content of such websites, or for the manner in which those websites collect, hold, use, and distribute any personal information you provide. When visiting a third-party website from hyperlinks displayed on this website, we encourage you to review the privacy statements of those websites so that you can understand how the personal information you provide will be will collected, held, used and distributed.
5. Right to access and correct
- You may request access to, or correction of, any personal information we hold about you by contacting us at firstname.lastname@example.org.
- To ensure that the personal information we hold about you is accurate and current, please notify us of any changes to your personal information as soon as possible.