1.1 In these Terms:
2.1 These Terms will apply to all Services that Social Content Now supplies to the Client and together with the Project Engagement Letter will comprise the contract between the parties.
2.2 Without limiting any other methods of acceptance, the Client’s request for Social Content Now to provide the Client with the Services will constitute the Client’s acceptance of these Terms.
2.3 Where there is more than one Client, these Terms will bind those persons jointly and severally.
2.4 Social Content Now may vary these Terms from time to time by giving no less than 20 days written notice to the Client. Any varied Terms will apply to the provision of all Services to the Client unless the Client gives notice within that period that it does not accept the variations.
3.1 The Client will provide to Social Content Now, free of cost, as soon as practicable following any request for information, all information in the Client’s power which may relate to the Services. Social Content Now will not, without the Client’s prior consent, use information provided by the Client for purposes unrelated to the Services. In providing the information to Social Content Now, the Client shall ensure compliance with the Copyright Act 1994 and shall identify any proprietary rights that any other person may have in any information provided.
4.1 Social Content Now may, in its sole discretion, consider requests in writing by the Client to vary or cancel any Services. If Social Content Now agrees to any such requests the Client must pay any reasonable costs incurred by Social Content Now up to the point of the variation or cancellation.
4.2 As soon as either party becomes aware of anything that will materially affect the scope or timing of the Services, the party must, as soon as practicable, notify the other party in writing and where Social Content Now considers a direction from the Client or any other circumstance is a variation, Social Content Now will notify the Client accordingly.
4.3 Social Content Now will not be liable for any delay in providing the Services resulting from actions beyond Social Content Now’s reasonable control. If any delay is a result of any act by the Client, Social Content Now may, without prejudice to its other rights and remedies, require payment from the Client for any part of the Services already undertaken and/or cancel the Services.
4.4 Social Content Now may in its sole discretion immediately suspend or cancel any Services by giving written notice to the Client. Social Content Now will not be liable for any loss or damage whatsoever arising from such suspension or cancellation.
4.5 Cancellation of any contract under these Terms will not affect either party’s rights or obligations that accrued before termination, including in relation to any Services that are current as at the date of cancellation.
5.1 The fees for the Services and all related expenses and disbursements will be charged in accordance with the Project Engagement Letter (Fees).
5.2 Social Content Now will provide the Client with valid GST tax invoices on the dates set out in the Project Engagement Letter, or if there are none, monthly in arrears for the Fees due in the previous month.
5.3 The Client will pay the Fees on the dates referred to in the Project Engagement Letter, or if there are none, within 7 days of the date of invoice. Payments must be made in cash or by direct credit to Social Content Now’s bank account and payment is to be made in full without deduction or set off.
5.4 If the Fees are not paid on time Social Content Now may suspend performance of the Services. Subject to Social Content Now’s other rights under these Terms, Social Content Now must promptly lift the suspension after the Client has made the payment.
5.5 Social Content Now may charge default interest of 15% per annum compounding annually on all amounts that are not paid on time. If any amount that is owed to the Client continues to remain unpaid, Social Content Now may also take action to recover that amount and charge the Client the costs incurred in doing so.
6.1 All warranties and representations (including those expressed or implied by law) in respect of Social Content Now’s Services are excluded to the extent permitted by law. The provisions in the Consumer Guarantees Act 1993 do not apply to the extent the Client is acquiring services from Social Content Now for the purposes of a business in terms of section 2 and 43 of that Act.
6.2 Social Content Now’s liability to the Client (whether in relation to contract, tort (including negligence) or otherwise) in respect of any Services provided to the Client is limited to the value of the Fees paid by the Client.
6.3 Social Content Now is not liable to the Client for any special, indirect, or consequential damage or loss of any kind under any cause of action arising under or in connection with Social Content Now’s Services to the Client.
6.4 The Client indemnifies Social Content Now and its Personnel against any loss or liability suffered or incurred at any time by Social Content Now or its Personnel and directly or indirectly caused by a breach of the Client’s obligations under these Terms.
6.5 If either party is found liable to the other (whether in contract, tort or otherwise), and the claiming party and/or a third party has contributed to the loss or damage, the liable party shall only be liable to the proportional extent of its own contribution.
7.1 Social Content Now and the Client are each a (Person in Charge of a Business or Undertaking (PCBU) as defined in section 17 of the Health and Safety at Work Act 2015 and must always comply with that Act and its regulations (HSWA). Where each party has a duty in relation to the same matter imposed by or under the HSWA, then each party must, so far as is reasonably practicable, consult, co-operate, and coordinate activities with each other.
8.1 Each party will retain ownership of all existing Intellectual Property Rights owned by it before the commencement of the Services and all Intellectual Property Rights created by each party independently of these Terms (including as those existing Intellectual Property Rights may be modified, enhanced, or developed as a result of the Services including as a result of contributions made by the other party).
8.2 Social Content Now retains all Intellectual Property Rights in the Deliverables provided that Social Content Now grants the Client a non-exclusive, irrevocable, perpetual, transferable, worldwide, royalty-free licence to use, copy and modify the Deliverables for the Client’s business purposes.
8.3 The Client grants Social Content Now a non-exclusive, royalty-free, global license to use the Client’s logo and summary details of this project being used as an example of work by Social Content Now for use in sales and marketing materials.
9.1 Social Content Now will collect, use, store and disclose the Client’s personal information in accordance with Social Content Now’s Privacy Policy published on its website from time to time and the Privacy Act 2020. The Client agrees that Social Content Now may collect, store, use and disclose (as applicable) any personal information about the Client:
9.2 The authorities under clause 9.1 are authorities or consents for the purposes of the Privacy Act 2020.
10.1 Neither party will be liable to the other for any failure to perform its obligations under these Terms by reason of any cause or circumstance beyond the party’s reasonable control including, acts of God, communication line failures, power failures, riots, strikes, lock-outs, labour disputes, fires, war, flood, earthquake or other disaster, pandemic (including COVID-19), epidemic or governmental action after the date of any contract between the parties but excluding lack of funds for any reason (Force Majeure Event). The party affected must:
10.2 If a Force Majeure Event continues for longer than 30 days then without limiting any of its other rights under these Terms, Social Content Now may cancel any contract by giving the Client no less than 10 days prior written notice. Social Content Now will not be liable for any loss or damage whatsoever arising from such cancellation.
11.1 In the event of any dispute, controversy, or claim arising out of or relating to these Terms, the Client agrees to first attempt to resolve the dispute through good faith discussions and negotiations.
11.2 If the dispute cannot be resolved through good faith discussions and negotiations within 30 days, the Client agrees to submit the dispute to mediation administered by a mediator, independently recommended and/or appointed by Arbitrators’ and Mediators’ Institute of New Zealand (“AMINZ”). The mediation will be conducted in accordance with the mediation rules of AMINZ and/or the chosen Mediator.
11.3 If the dispute cannot be resolved through mediation within sixty (60) days of the commencement of the mediation, the Client agrees to submit the Dispute to arbitration administered by AMINZ. The arbitration will be conducted in accordance with the arbitration rules of AMINZ. The decision of the arbitrator will be final, binding, and non-appealable, and will constitute the definitive resolution of the dispute. The Client agrees to accept and implement the arbitrator's decision in good faith.
11.4 Neither party will commence legal proceedings against the other before following the procedure above except that this clause does not affect any party’s right to seek urgent interlocutory and/or injunctive relief.
12.1 To waive a right under these Terms that waiver must be in writing and signed by the waiving party.
12.2 Social Content Now may assign novate, subcontract, or transfer its rights and obligations under these Terms at any time without the consent of the Client.
12.3 If there is any conflict between these Terms and any other agreement between the parties then the provisions of these Terms will prevail unless Social Content Now agrees otherwise in writing.
12.4 Any benefits expressly conferred on any third parties named or referred to in these Terms (including Social Content Now’s Personnel) are intended to be enforceable by those third parties for the purposes of section 12 of the Contract and Commercial Law Act 2017.
12.5 Any illegality, unenforceability, or invalidity of a provision of these Terms does not affect the legality, enforceability or validity of the remaining provisions of these Terms.
12.6 These Terms and any agreement to which they apply are governed by the laws of New Zealand and are subject to the jurisdiction of the courts of New Zealand.