Terms of service.
GENERAL TERMS
1 APPLICATION OF THESE TERMS
1.1 These Terms apply to your Order. By accepting the Quote:
a. you agree to these Terms; and
b. where your access and use is on behalf of another person (e.g. a company), you confirm that you are authorised to, and do in fact, agree to these Terms on that person’s behalf and that, by agreeing to these Terms on that person’s behalf, that person is bound by these Terms.
2 INTERPRETATION
In these Terms:
Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the parties’ obligations under these Terms.
Delivery means the date of actual delivery of the Products to you.
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
a lack of funds for any reason.
General Terms means this document headed General Terms.
Intellectual Property Rights includes copyright and all rights anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade-marks and designs, Media, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity.
Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Media means all media, content, photography, videography, screenplay, soundtrack, performances, footage, graphic design, marketing strategy, social media strategy, information (including personal information) and data provided, held, used or created by us on your behalf.
New Intellectual Property means all Intellectual Property Rights prepared or created by us in providing the Products to you, but not including Pre-existing Intellectual Property.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
Order means the Quote accepted by you.
a party includes that party’s permitted assigns.
a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
personal information means information about an identifiable, living person.
personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.
Pre-existing Intellectual Property means all Intellectual Property Rights including, but not limited to copyright in all screenplay, soundtrack, naming rights, performances, Media and documentation provided by each party for the purposes of producing the Products.
Price means the purchase price for the Products as specified in the Order and includes the price specified in any Variation. All prices are stated to be in New Zealand Dollars and are the price stated plus any goods and services tax levied in respect of supplies made by us to you by operation of the New Zealand Goods and Services Tax Act 1985, unless otherwise specified in the Order.
Products means the scope of the Media in its finished state to be supplied to you as specified in the Order and any agreed Variation.
Quote means the quotation for the Products provided by us to you.
Terms means these General Terms and includes the Order and any agreed Variations.
Variation means any change in scope or scale of the Products or the date of Delivery.
We, us or our means Ruffell Productions 2012 Limited or Ruff and Tumble Limited, whichever is specified in the Order.
Working Day means any day of the week other than Saturday, Sunday, a New Zealand public holiday, including Christchurch Anniversary Day.
You or your means you or, if clause 1.1b applies, both you and the other person on whose behalf you are acting.
Words in the singular include the plural and vice versa.
A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
3 ORDERS OF PRODUCTS / DELIVERY
3.1 An Order is our Quote, signed by you which specifies:
a. The Products to be supplied
b. The estimated date of Delivery
c. The Price
d. Any variations of these General Terms.
3.2 Upon acceptance by you of the Quote and payment of the deposit in accordance with clause 5.1, we must use reasonable efforts to provide the Products to you:
a. in accordance with these Terms and New Zealand law;
b. exercising reasonable care, skill and diligence; and
c. using suitably skilled, experienced and qualified personnel.
3.3 Within 10 working days of Delivery you must notify us if you believe the Products delivered do not conform to the requirements set out in the Order including any subsequent agreed Variations.
3.4 If you do not notify us within the 10 working day period specified in clause 3.3 you will be deemed to have accepted the Products delivered to you.
4 VARIATIONS
4.1 Where a Variation is requested by you or you have asked us to propose a Variation, then such Variation shall be agreed in accordance with clause 4.4.
4.2 Where we notify you that any direction or circumstance should be treated as a Variation, you shall as soon as practicable after receiving such notice, but within 2 Working Days, notify us in writing whether or not you consider the direction or circumstance to be a Variation.
4.3 If you do not consider the direction or circumstance to be a Variation then the parties shall attempt to resolve the matter as soon as practicable, and if a Variation is agreed, proceed in accordance with clause 4.4.
4.4 Where you request a Variation or it is agreed that a direction or circumstance is a Variation, the value of such Variation and its impact on the Price, estimated date of Delivery, the Products, will be provided by us to you and agreed upon prior to the Variation proceeding (where possible). Where the value of such Variation cannot be agreed on or the Variation has already occurred, the parties shall agree to a budget for the Variation that shall not be exceeded without further agreement between the parties.
4.5 In the event that the parties cannot reach agreement in accordance with clause 4.4, the matter shall be treated as a dispute and resolved in accordance with clause 13.
5 PAYMENT
5.1 A deposit of 50% of the Price must be paid by you to us on your acceptance of the Quote.
5.2 The balance of 50% of the Price must be paid by you to us within 10 Working Days following the date of our invoice which will be issued by us on Delivery. A discount of 10% of the Price will be offered if this payment is received by us within those 10 working days.
5.3 For the purposes of clarification, all payments required to be made by you to us under these Terms are material provisions.
5.4 You must make all payments by direct credit to bank account number: 06 0665 0258209 00 in New Zealand Dollars; but transmission of any payment made by you to us will not constitute payment and you remain fully liable for the full amount payable until our bank acknowledges to us that the payment has been cleared.
5.5 You must not withhold payment, or make deductions from the Price, or set off any amount owed by you to us whether by equitable set-off or otherwise, without our prior written consent.
5.6 Interest at the rate of 10% per annum must be paid by you to us on all money owing by you to us for any reason from the date payment is due under this clause until the date all money and interest payable by you to us is paid. In addition you will pay us a fee of $200.00 being a processing fee for the administrative costs associated with your payment default.
You agree that the interest rate and fee specified in this clause reasonably reflects by way of liquidated damages the cost to us of being held out of the money owing to us by you in the circumstances of default. The operation of this clause is without prejudice to any other rights we have in respect of late payment or non-payment.
5.7 Interest payable under clause 5.6 shall be calculated:
a. As accruing from day to day; and
b. May be compounded to and become part of the principal debt at the end of each month of default; and
c. May be claimed in the same manner both before and after any judgment obtained.
5.8 You will also be liable to pay all actual expenses and legal costs we incur in relation to taking any steps to enforce these Terms and in obtaining payment from you if you breach your payment obligations.
6 YOUR OTHER OBLIGATIONS
6.1 You acknowledge that:
a. we will require access to and use of relevant personnel, equipment, facilities, site locations to perform our obligations under these Terms; and
b. you will grant us unrestricted access to and use of such relevant personnel, equipment, facilities and site locations.
6.2 You must arrange all consents and approvals that are necessary for any access and use required by us as described in clause 6.1 including any licences to use any of your relevant Pre-Existing Intellectual Property rights.
6.3 You acknowledge and agree that where you provide us with access to personal information, in collecting, holding and processing that information, we are acting as your agent for the purposes of the Privacy Act 1993 and any other applicable privacy law. You must obtain all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with these Terms.
6.4 You indemnify us against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by our solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any access to or use by us as described in clause 6.1 infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that our access to or use by us as described in clause 6.1 is Objectionable, incorrect or misleading.
7 TITLE AND RISK IN PRODUCTS
7.1 The legal and beneficial ownership in the Products we deliver to you remains with us until we have received payment of the Price in full, or if these Terms are terminated earlier, upon payment of our invoice in accordance with clause 13.5.
7.2 The risk of loss of or damage in the Products will pass from us to you on Delivery.
7.3 Despite the transfer of risk of the Products as specified in clause 7.2, we may at our sole discretion electronically store the Products for a period of 12 months following Delivery. During this time, if you request we may at our sole discretion re-supply the Products to you at a reasonable fee.
8 PERSONAL PROPERTY SECURITIES ACT 1999
8.1 You acknowledge these Terms grant to us a security interest (“Security Interest”) (as that term is defined in the Personal Property Securities Act 1999 (“PPSA”)) in the Products.
8.2 You will at our request promptly execute any documents, provide all necessary information and do anything else required by us to ensure that the Security Interest constitutes a Perfected Security Interest (as that term is defined in the PPSA) and which will have priority over all other Security Interests in the Products.
8.3 You agree, to the extent permitted by law, that you shall waive any rights you may have under sections 116, 119, 120 (2), 121 125, 126, 127, 131 and 132 of the PPSA and enforcement of any security interest.
8.4 You agree that nothing in sections 113, 114(1)(a), 117, 133 and 134 of the PPSA apply to these Terms.
8.5 You waive the right to receive a copy of any Verification Statement (as that term is defined in the PPSA) confirming registration of a financing statement as that term is defined in the PPSA.
9 INTELLECTUAL PROPERTY
9.1 Title to all New Intellectual Property which is comprised in the Products, will pass to you in accordance with clause 7.1 and shall be jointly owned by you and us. We agree to grant you an unrestricted royalty-free exclusive licence in perpetuity to copy or use such New Intellectual Property. You agree to grant us an unrestricted royalty-free transferable, irrevocable licence in perpetuity to use such New Intellectual Property for our own business purposes including but not limited to business advertising.
9.2 If you provide us with ideas, comments or suggestions relating to the Media and the Products (“Feedback”):
a. all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
b. we may use or disclose the Feedback for any purpose.
9.3 Subject to clause 9.2, all Pre-existing Intellectual Property shall remain the property of the original owner. You warrant that you have not only rights to any Pre-existing Intellectual Property you provide to us, but rights to assign those rights to us to the extent reasonably required to enable us to create and provide the Products to you and you hereby indemnify us in this regard.
You grant us an unrestricted royalty-free transferrable irrevocable licence to use and copy your Pre-existing Intellectual Property to the extent reasonably required to enable us to create and provide the Products to you. Following Delivery, we grant you an unrestricted royalty-free licence to use and copy our Pre-existing Intellectual Property but only to the extent that such property forms part of the Products we provide to you.
10 CONFIDENTIALITY
10.1 Each party must, unless it has the prior written consent of the other party:
a. keep confidential at all times the Confidential Information of the other party;
b. effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
c. disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 10.1a and 10.1b.
10.2 The obligation of confidentiality in clause 10.1a does not apply to any disclosure or use of Confidential Information:
a. for the purpose of performing a party’s obligations, or exercising a party’s rights, under these Terms;
b. required by law (including under the rules of any stock exchange);
c. which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
d. which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
e. by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 10.
11 WARRANTIES
11.1 Each party warrants that it has full power and authority to enter into, and perform its obligations, under these Terms.
11.2 To the maximum extent permitted by law our warranties are limited to those set out in these Terms, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to:
a. supplying the Products again; and/or
b. paying the costs of having the Products supplied again.
11.3 You agree and represent that you are acquiring the Products, and accepting these Terms, for the purpose of a business and that the Consumer Guarantees Act 1993 and any other applicable consumer protection legislation does not apply to the supply of the Products or these Terms.
12 LIABILITY
12.1 Our maximum aggregate liability under or in connection with these Terms or relating to the provision of the Products, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed the amount of money paid by you to us in satisfaction of the Price. The cap in this clause 12.1 includes the cap set out in clause 11.2(b).
12.2 We will not be liable to you under or in connection with these Terms or the Products for any:
a. loss of profit, revenue, savings, business, use, and/or goodwill; or
b. consequential, indirect, incidental or special damage or loss of any kind.
12.3 We will not be held responsible, liable, or held to be in breach of these Terms for any failure to perform our obligations under these Terms or otherwise, to the extent that the failure is caused by you failing to comply with your obligations under these Terms, or by the negligence or misconduct of you or your personnel.
12.4 You indemnify us against any loss or liability whether direct or consequential or costs of any nature whatsoever incurred or suffered by us, arising from or in relation to any breach of your obligations to us whether under these Terms or otherwise in contract, or in tort (including negligence), breach of any statute or for any other reason.
12.5 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with these Terms or the Products.
13 TERM AND TERMINATION
13.1 Unless terminated under this clause 13, these Terms:
a. starts on the date the Quote is accepted by you; and
b. continues until the obligations of both parties under these Terms have been satisfied.
13.2 We may, by notice to you, immediately terminate these Terms if you:
a. breach any material provision of these Terms and the breach is not:
i. remedied within 10 days of the receipt of a notice from us requiring you to remedy the breach; or
ii. capable of being remedied; or
b. become insolvent, liquidated or bankrupt, have an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or cease to continue business for any reason.
13.3 You may terminate these Terms at any time in writing to us. As soon as notice is received by us, we shall cease all work for you under these Terms.
13.4 Termination of these Terms does not affect either party’s rights and obligations that accrued before that termination.
13.5 On the early termination of these Terms for whatever reason, we will invoice you for the work we have completed to the date of termination which may include our reasonable costs incurred solely as a result of a breach of the Terms by you or early termination by you and you must immediately pay the invoiced amounts.
Provided all invoiced amounts are paid and you have complied with all of your other obligations under these Terms, we will provide reasonable assistance in the transfer of the Products to the extent that they are completed to you, but we give no warranty that the Products are completed to any particular stage of completion that allows us to transfer them to you.
13.6 No compensation is payable by us to you as a result of termination of these Terms for whatever reason, and you will not be entitled to a refund of any money that you have already paid to us.
14 DISPUTES
14.1 If any dispute between the parties in relation to these Terms arises, the parties will in good faith and in the first instance use their best endeavours to resolve such dispute themselves.
14.2 If the dispute cannot be resolved by the parties themselves within a reasonable time, then they must explore whether the dispute can be resolved by use of mediation or other alternative resolution technique. This clause will not apply to an application by any party seeking urgent and declaratory relief from any court.
14.3 If the dispute is not settled within a reasonable time the parties may commence legal proceedings.
15 GENERAL
15.1 Neither party is liable to the other for any failure to perform its obligations under these Terms to the extent caused by Force Majeure.
15.2 No person other than you and us has any right to a benefit under, or to enforce, these Terms.
15.3 For us to waive a right under these Terms, that waiver must be in writing and signed by us.
15.4 We are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under these Terms.
15.5 If we need to contact you, we may do so by email. You agree that this satisfies all legal requirements in relation to written communications.
15.6 These Terms, and any dispute relating to these Terms or the Products, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with these Terms or the Products.
15.7 Clauses which, by their nature, are intended to survive termination of these Terms, including clauses 6.2, 6.3, 6.4, 7.1, 7.3, 8, 10, 11.2, 12, 13.5, 13.6 continue in force.
15.8 If any part or provision of these Terms is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If a modification is not possible, the part or provision must be treated for all purposes as severed from these Terms. The remainder of these Terms will be binding on you.
15.9 These Terms set out everything agreed by the parties relating to the Products, and supersede and cancel anything discussed, exchanged or agreed prior to the date of the Order. The parties have not relied on any representation, warranty or agreement relating to the Products that is not expressly set out in these Terms, and no such representation, warranty or agreement has any effect from date of the Order. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A and 13 of the Fair Trading Act 1986.
15.10 You may not assign, novate, subcontract or transfer any right or obligation under these Terms without our prior written consent. You remain liable for your obligations under these Terms despite any approved assignment, subcontracting or transfer. We may assign, novate, subcontract or transfer any right or obligation under these Terms and will remain liable for the performance of such obligations, unless specifically stated to the contrary in any written consent to an assignment or transfer.