In this Agreement, the following words have the following meanings:
“Agreement” The Agreement entered into by the Company and Client, bounded by the Terms outlined in the Project Details.
“Start Date” The Start Date means the date which is the earlier of the Client accepting the Project Details digitally to the Company or signing a hardcopy of this Agreement enclosing a copy of the Project Details.
“Project Details” The Project Details provided by the Company to the Client setting out the Client, Fee, Term, and Website work is to be completed on.
“Client” The Company, as detailed within the Project Details and including its representatives.
“Company” The Company, as detailed within the Project Details shall supply the Services under the terms of this agreement to the Client.
“Term” The Term or ‘time-frame’ of the campaign outlined in the Project Details.
“Fee/s” The Fee or Fees may be made up of either or both marketing management subscription fees (management and consulting fees) and/or ad disbursements, as detailed within the Project Details constitutes the total amount payable within the Term of the Agreement and exclusive of GST. The Fee instalment is paid ‘upfront’ by monthly or quarterly payments and is ‘ongoing’ for the length of the Term. Due to the allocation of resources, related costs and ongoing active nature of our monthly management and consulting service, there is no option to pause this service.
“Search Engines” The Search Engines, as detailed within the Project Details.
“Services” The provision of services using mediums as listed in the Project Details
“Website” The location defined by the unique resource locator (URL) being targeted by the campaign being the Website, as detailed within the Project Details.
1. The Company agrees to provide the Client with the Services as detailed in the Definitions.
2. The Company shall communicate to the Client the Project Details by email. The Client shall acknowledge and accept the Project Details by reply email (prior to the campaign commencing) and in doing so enters this Agreement for the provision of the Services. In the event a hard-copy Agreement is being utilised the Client shall acknowledge and accept the Project Details by signing the Agreement and furnishing the Company with a hard-copy, facsimile or scanned copy (prior to the campaign commencing) and in doing so enters this Agreement for the provision of the Services.
Payment of the Fee
3. The Client agrees to pay the Company the Fee for providing the Services. The Fee shall be payable during the Term by the amounts outlined in the Project Details.
4. After the expiration of the Term, the Client agrees to pay the Company the Fee for continued service until the Agreement is terminated by request of either party with 30 days written notice or a new agreement is entered into.
5. Payments of the Fee must be made in advance of work being commenced. Ad Disbursement fees and management fees must be paid in advance of all advertisements being served.
5a. Where payment is made by credit card a transaction fee may be added.
Abuser Pay Clause
6. If the Client does not make payment when due, in addition to any other remedies, the Company may recover from the Client any costs, expenses or disbursements incurred by the Company in recovering money from the Client, including without limitation, debt collection agency fees or legal fees.
6.a Any costs, expenses or disbursements as listed above would be recovered additionally on top of any other Fees owed by the Client.
6.b The Company will only seek the services of a third party agent such as a debt collection agency to recover costs or seek legal services after several attempts have been made to allow the Client to pay and the final deadline has been issued has not been met.
Required information from the Client
7. The Client agrees to agrees to provide where applicable: Google Analytics/ Adwords Account log in details, suggested key phrases for key phrase testing and any copy suggestions for Ad creation.
Acknowledgement of loss to Company if the Agreement is terminated before the expiry of Term
8. The Client acknowledges and agrees that the Fee is calculated on the basis of the Services being provided over the Term and that a disproportionate amount of work is required to be undertaken by the Company during the early part of the Term. The Company will incur substantial loss in the event the Client terminates the Agreement without cause during the Term. Such loss is quantified to be the balance of the Fee.
Payment of Fee when Client terminates Agreement
9. In the event that the Client terminates the Services within the Term from the Start Date the entire outstanding Fee shall be immediately due and payable. The Client agrees that it shall be liable for and shall pay the balance of the Fees remaining within 14 days of termination.
Term of Agreement
10. This Agreement shall continue for the Term from the Start Date.
Termination of Agreement
11. Either party may terminate this Agreement by giving each other 30 days written notice after the expiry of the Term from the Agreement Start Date as listed in the Project Details.
12. If work is delayed through no fault of the Company or if the Client changes their mind and no longer wants the Company to continue providing the Services (except where such change of mind arises because there is a breach by the Company of this Agreement), no refund or compensation will be payable by the Company to the Client. a. In the event that there is a breach by the Company of this Agreement, a remedy may be offered in the place of a refund.
Company’s Liability for Defective Services
13. The Client acknowledges that the Company has no control over the policies of media websites or Search Engines with respect to the type of sites and/or content that they accept now or in the future. The Clients website may be excluded from any Search Engine at any time at the sole discretion of the Search Engine.
14. To the extent permitted by law and subject to any consumer guarantees the Client has under the New Zealand Consumer Law, the parties agree that neither party shall be liable to the other for or in relation to any consequential loss (which includes but is not limited to loss of profits, loss of revenue, loss of business opportunities, loss of anticipated business opportunities, loss of anticipated savings and damage to goodwill) which relate to the obligations of the parties or arising from a breach by either party under this agreement.
Restraint on Using Company Staff
15. In consideration of the Company agreeing to provide the Services to the client, the Client agrees and warrants to the Company that it and its related parties shall not engage any Company staff either as an employee or contractor at any time during the Term of this Agreement or within 12 months of the termination of this Agreement.
16. The parties covenant that they will not at any time make any disparaging comments or disclose any information or make or publish any statement or do any other thing which may tend materially to harm or prejudice the other party’s reputation or good name (prejudicial information), this includes both parties not making disparaging comments or disclosing prejudicial information about the other through the use of social media, web discussion groups, websites or other like forums. The parties agree to immediately remove any prejudicial information posted online immediately upon written request of the other party.
17. The parties agree and acknowledge that this non-disparagement provision is a material term of this Agreement and the Company would not have entered into this Agreement without the inclusion of this provision.
18. The parties acknowledge and agree that a breach of this non-disparagement provision or disclosure of prejudicial information about the other party as described above will be a material breach of this Agreement and may cause material damage to the other party and that damages may be inadequate compensation for such a breach of this provision and, subject to the court’s discretion, the non-breaching party may restrain, by an injunction or similar remedy, any conduct or threatened conduct which is or will be a breach of this provision.
Indemnity by Client
19. To the extent permitted by law, the Client is liable for and agrees to indemnify the Company in respect of any loss or liability which the Company suffers, incurs or is liable for as a result of (i) any information given by the Client that is not accurate, up to date or complete or is otherwise misleading; or (ii) any breach of these Terms, or (iii) any damage to the reputation of the Company suffered as a consequence of the Client's breach of the Terms.
20. This Agreement is subject to the jurisdiction of New Zealand and the parties irrevocably submit to the jurisdiction of the courts of New Zealand.
21. If the terms of this Agreement differ from any other information that the Client has been provided with, including by email or phone, the terms of this agreement apply, unless the Company agrees to otherwise in writing. This Agreement and the Project Details supersedes all prior representations, promises and warranties.
21. The Client must not assign or deal with the whole or any part of its rights or obligations under the Agreement without the prior written consent of the Company. Any purported dealing or representation in breach of this clause is of no effect.