Standard Terms & Conditions Digital Marketing Services
For the purposes of these Standard Terms, unless the context requires otherwise:
Confidential Information means all information in any form relating to a party as a result of the course of dealings between them. Confidential Information includes but is not limited to any non-public, commercially sensitive information relating to the disclosing party’s business, data, methodologies, operations, customers, stakeholders, suppliers, investigations, products, services, research and development and the contents of a SOW. Confidential Information does not include information which:
(a) is part of or legitimately enters the public domain; or
(b) is already in the unrestricted possession of the recipient prior to disclosure; or
(c) has been independently developed by the recipient (as evidenced by records in its possession); or
(d) is not intended to be confidential as evidenced by the written agreement of the owner; or
(e) legally must be disclosed, provided that prior to making the disclosure the recipient has given the owner notice of the request for disclosure and obtained a confidentiality order or similar protection limiting the persons to whom disclosure of the Confidential Information is made if the owner has no effective status to be heard on the matter.
Deliverables means the work product delivered by Krunch.co to you as part of the Services and as described in a SOW.
Intellectual Property includes any right to, and any interest in, any patent, design, trade mark, copyright, trade secret and any other proprietary right or form of intellectual property (protectable by registration or not).
Retained Services means an arrangement whereby you purchase a regular monthly allocation of Services as detailed in a SOW.
Services means the services to be provided by Krunch.co under a SOW
SOW means a Statement of Work executed by the parties describing the Services to be provided by Krunch.co which may be project-based or may be a retainer agreement.
Standard Ratecard means the hourly rates charged for Services based on the function and experience of Krunch.co personnel who provide the Services.
Third Party Materials means any material which is incorporated into the Deliverables, including without limitation stock photography or illustration, and which material is not owned by Krunch.co or you.
Your Content means any information or material provided by you to be incorporated into the Deliverables or the Services.
2.1 Standard Terms incorporated into each SOW: These Standard Terms apply to, and are incorporated by reference into, all SOW between you and Krunch.co, unless otherwise agreed in a SOW. In the event of a conflict between these Standard Terms and the terms of a SOW, the terms of the SOW will prevail to the extent of that conflict.
2.2 Separate agreement: Each SOW forms a separate agreement between you and Krunch.co.
2.3 Standard Terms can be updated: Krunch.co may update these Standard Terms from time to time and will post the updated terms on its website. The updated terms will apply to any SOW you enter into with Krunch.co after the date of the updated terms.
3) STATEMENT OF WORK
3.1 Executing SOW: The parties may execute one or more SOW describing Services and/or Deliverables to be provided by Krunch.co to you, whether on a project basis, a retainer basis or any other basis. Neither party will be bound by any proposed SOW unless and until it has been executed by both parties.
3.2 Delay: Krunch.co will use commercially reasonable efforts to perform the Services within any time(s) identified in a SOW. Unless consequences for any delay in providing the Services are specified in a SOW, Krunch.co will not be liable to you for any delay in performing or receiving the Services.
3.3 Retainer Services: Where any SOW are for Retainer Services, you acknowledge and agree that:
(a) hours allocated to you are not rolled over from month to month; and
(b) all time and attendance spent outside of the Services specified as the Retainer Services will be charged to you in accordance with the Standard Ratecard.
4.1 Services not to exceed budget: Subject to the terms of a SOW, Krunch.co shall not provide any Services where the value of the Services exceeds the budget outlined in the relevant SOW, without your written approval.
4.2 Notice: If at any time during the term of a SOW, Krunch.co has knowledge that the Services will not be completed within the estimated Budget then Krunch.co shall give you written notice of the likely costs to finalise Deliverables.
4.3 Variation: After receipt of the notice you shall either amend the budget or reduce the Services required such that the Services can be delivered within the budget.
5) EACH PARTY’S OBLIGATIONS
In entering into and performing its obligations under a SOW each party agrees:
(a) it has full corporate power and has obtained the required authority to enter into and perform its obligations under a SOW;
(b) to ensure that where approvals or decisions are required by a SOW the relevant party’s approval or decision will be given promptly and will be within that party’s delegated authority levels;
(c) to comply with all relevant statutory, regulatory and common laws relevant to carrying out its obligations under a SOW.
6) YOUR OBLIGATIONS AND WARRANTIES
You will provide Krunch.co with access to your resources and facilities in a timely manner and to the extent necessary to allow Krunch.co to perform its obligations under the relevant SOW.
You represent and warrant to Krunch.co that:
(a) you own all right, title, and interest in, or otherwise has full right and authority to permit the use of Your Content;
(b) your Content does not infringe any third party’s rights;
(c) you will comply with any licensing agreements governing the use of Third Party Materials; and
(d) you will comply with all laws and regulations as they relate to the Services and Deliverables.
You will not appoint any other service provider to provide services the same as or similar to the Services for the term of any Services Engagement.
7) KRUNCH.CO OBLIGATIONS AND WARRANTIES
7.1 Original work: Krunch.co represents and warrants to you that to the best of its knowledge and belief that except for Third Party Materials and Your Content, the Deliverables shall be Krunch.co’s original work and/or its independent contractors.
7.2 No implied warranties: Except for the express representations and warranties stated in these Standard Terms, Krunch.co makes no warranties whatsoever and to the extent permitted by law excludes any and all warranties implied by law.
7.3 Warranties void: In the event you or any other person modifies or uses the Deliverables outside of the scope or for any purpose not identified in the relevant SOW, all our representations and warranties shall be void.
8) MEDIA CANCELLATION
8.1 Cancellation of Advertising Services: Any cancellation by a Client must be made in writing to the relevant krunch.co account manager. Upon cancellation, the Client agrees that krunch.co may at its discretion charge the following cancellation fees. The Client acknowledges that these cancellation fees are a genuine pre-estimate of the loss Krunch.co will suffer as a result of the cancellation. The Client may not assign the contract with Krunch.co, including the advertising space allocated to it, to any third party.
8.2 Cancellation of Newspaper, Magazine and Radio Advertising: Bookings cancelled after the cancellation deadline for the relevant medium may incur a cancellation fee of up to 100% of the price of the advertising plus the full commission due to Krunch.co. Bookings cancelled prior to the cancellation deadline may incur a fee amounting to the time and materials incurred by Krunch.co.
8.3 Cancellation of Digital Advertising: Cancellation of Digital Advertising may incur the following cancellation fees: a) Social Media (e.g. Facebook, Instagram, LinkedIn): if the cancellation occurs within 30 days of the start of a campaign, cancellation fees amount to the time and materials incurred by Krunch.co; if the cancellation occurs after the start of the campaign, cancellation fees amount to the full commission of the campaign and the cost of the advertising incurred by Krunch.co b) Display Media: if the cancellation occurs prior to the booking deadline for the relevant advertising, a cancellation fee amounting to the time and materials incurred by Krunch.co may be incurred; if the cancellation occurs after the booking deadline for the relevant publication, a cancellation fee of up to 100% of the advertising cost plus the full commission due to Krunch.co may be charged. c) Video on demand: if the cancellation occurs over 10 days prior to the advertising campaign, a cancellation fee amounting to the time and materials incurred by Krunch.co plus 50% of the media costs may be incurred; if the cancellation occurs within 9 days of the advertising campaign, a cancellation fee amounting to the full price of the advertising plus the full commission due to Krunch.co may be charged
8.4 Cancellation of TV Airtime: Cancellation or postponement of TV airtime, particularly within 10 weeks of the airdate, may incur a cancellation fee of the full advertising plus the full commission due to Krunch.co.
8.5 Cancellation of Sponsorships: Sponsorships may be non-cancellable once booked.
8.6 Cancellation of Billboards and Airport Display Space: Cancellation within 6 months of the appearance of the advertising may incur a cancellation fee of up to 100% of the advertising cost plus the full commission due to Krunch.co. APNO contracts are non-cancellable once booked.
9.1 Invoice: Krunch.co will invoice you for the Services in the manner described in a SOW. If no invoice method is described in a SOW, Krunch.co will invoice you at the end of each month for the Services completed and costs incurred in completing those Services.
9.2 Payment: You will pay Krunch.co’s invoices on or before the 20th day of the month following the date of invoice, unless otherwise agreed.
9.3 Tax invoice: each invoice will be a valid tax invoice.
9.4 Late payment: If payment is not received by the due date, Krunch.co may stop providing the Services immediately until it has received payment in full and/or charge interest on the outstanding amount at a rate of 5% per month, calculated on a daily basis on the unpaid amount under the invoice and any other amounts you owe to Krunch.co in full, plus GST.
9.5 GST: All amounts payable under a SOW are exclusive of GST and the party paying such amounts shall also pay any GST on that amount (if the payment is for a taxable supply as defined in the Goods and Services Tax Act 1985 and a tax invoice is provided).
9.6 Disputed invoice: If you dispute any invoice, you will promptly notify Krunch.co in writing detailing the grounds of that dispute. You must pay any undisputed portion of any validly rendered invoice but may withhold payment of the disputed portion until the dispute is resolved by the parties (acting reasonably and in good faith). Any amount accepted by Krunch.co as owing between the parties pursuant to the disputed invoice shall be paid within 14 days of the dispute being resolved. Any disputes will be resolved in accordance with clause 14.
10) INTELLECTUAL PROPERTY OWNERSHIP
10.1 Pre-existing IP: Pre-existing Intellectual Property which is not developed or prepared under a SOW (Pre-existing Intellectual Property) but is used for the purposes of a SOW shall remain the property of its current owner. Your Content remains your property or your suppliers (as applicable).
10.2 Krunch.co’s IP: Modifications, adaptations or additions to Pre-existing Intellectual Property created by or developed by Krunch.co in the provision of the Services or any new work produced by Krunch.co in the provision of the Services shall be the property of Krunch.co, unless otherwise agreed under a SOW.
10.3 Licence of your content: You grant Krunch.co a non-exclusive, royalty-free licence to use, reproduce, modify, display and publish your Intellectual Property and Your Content to the extent necessary to enable Krunch.co to provide the Services and Deliverables.
10.4 Krunch.co’s licence: Upon all payments for the relevant Services and Deliverables are made in full, Krunch.co grants you a non-exclusive, non-transferable, royalty-free licence to use, reproduce, modify, display and publish Krunch.co’s Intellectual Property to the extent necessary to enable you to enjoy the benefit of the Services and Deliverables.
10.5 Third Party Materials: Third Party Materials are the exclusive property of their respective owners. Krunch.co will:
(a) identify to you any Third Party Materials that may be required to perform the Services or otherwise integrated into the Deliverables; and
(b) whether any license is required for the Third Party Materials;
(c) at your expense, and unless otherwise provided for by you in a SOW, Krunch.co shall obtain the license(s) necessary to permit your use of the Third Party Materials as required to use the Services and Deliverables or otherwise agreed by the parties.
Each party will ensure that it, and its employees, agents and subcontractors, shall not use, communicate, cause to be communicated, copy, make available or otherwise re-supply any Confidential Information to any person other than is necessary for the purposes of a SOW.
12.1 Maximum liability: To the maximum extent permitted by law, Krunch.co’s maximum aggregate liability in connection with any SOW (whether under breach of contract, tort or otherwise) will be limited to an amount equal to the aggregate fees which have been received by Krunch.co under the SOW in the 12 month period preceding the event giving rise to the claim.
12.2 No indirect loss: To the full extent permitted by law, Krunch.co shall not be liable under any circumstances for any loss of actual or anticipated income or profits, loss of contracts, loss of revenue, loss of goodwill or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of Krunch.co has been advised of or is aware that such damages may be incurred.
12.3 Exclusions: Krunch.co excludes all liability to any person for any damage or loss which is caused by or related to:
(a) delay in delivery of any Services including the failure to achieve any dates specified in a SOW;
(b) circumstances beyond Krunch.co’s control including, without limitation, war, civil disturbance, acts of terrorism, natural disasters, strikes, or the failure of a third party supplier approved by you to provide Services to the level, quality or continuity required by Krunch.co;
(c) any computer virus accidentally introduced to your computer system;
(d) any third party act or attempt to:
(i) gain unauthorised access to any portion or feature of any website or interface developed by Krunch.co;
(ii) obtain any materials, information or documents through any electronic means developed by Krunch.co which was not purposely made available by you to that party, including without limitation, hacking, password mining or otherwise accessing any electronic information system without authorisation;
(iii) test the vulnerability of the information systems developed by Krunch.co or any network connected to those information systems;
(iv) upload or use any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any of your electronic systems;
(v) use any of your systems in any unlawful manner or in any other manner that could damage, disable, overburden or impair the system; or
(vi) use automated scripts to collect information from or otherwise interact with your systems.
12.4 Fair Trading Act: Both parties agree to the extent that the Services are for provided for business purposes, that:
(a) all provisions of the Consumer Guarantees Act 1993 are excluded to the maximum extent allowed under section 43(2) of that Act; and
(b) sections 9, 12A and 13 of the Fair Trading Act 1986 shall not apply to the obligations of the parties under a SOW, and that it is fair and reasonable that such provisions are contracted out of for the purposes of these Standard Terms and any SOW.
13) TERMINATION AND SUSPENSION
13.1 Termination by either party: Either party may by notice in writing to the other party terminate any SOW to which the breach relates if:
(a) the other party commits a material breach of the SOW which is not capable of remedy;
(b) the other party breaches the SOW which is not remedied within 30 days of receiving a notice it to do so; or
(c) the other party becomes bankrupt, goes or is put into liquidation, has a receiver or statutory manager appointed over its assets or any of them, becomes insolvent, ceases to carry on its business, makes any composition or arrangement with its creditors, or is deemed or perceived unable to pay its debts when they fall due.
13.2 Krunch.co right to terminate: Krunch.co may terminate a SOW by providing no less than 14 days’ prior written notice to you if any invoice issued is not paid when due, and for the avoidance of doubt any additional time Krunch.co allows you to pay shall not prejudice its right to terminate under this clause at any time.
13.3 Effect of termination: If a SOW is terminated then no other SOW will automatically be terminated, unless otherwise agreed by the parties.
13.4 Consequences of Termination: On the termination or expiry of a SOW:
(a) you must return all documents and materials in your possession or control which belong to Krunch.co, to Krunch.co;
(b) you will pay Krunch.co:
(i) for all Services to the date of termination:
(ii) in respect of Retained Services SOW, the agreed monthly fee for the Retained Services multiplied by the number of months remaining until expiry of the term of the SOW, which the parties agree is a reasonable pre estimate of the loss suffered by Krunch.co for the loss of billable production space; and
(iii) in respect of any other SOW, Krunch.co’s estimate of staff time at the costs specified in the Standard Ratecard for work Krunch.co forecasts would be carried out in the four weeks following any termination notice as liquidated damages and which the parties agree is a reasonable pre estimate of the loss suffered by Krunch.co for the loss of billable production space; or
(c) all third party costs and commitments that are not able to be cancelled,
(d) nothing shall affect any rights accrued or obligations owing as at the date of termination or expiry;
(e) clauses 2, 6, 7, 8, 10, 11, 12, 13, 14, 15 continue in full force and effect after termination of a SOW.
14) LIQUIDATED DAMAGES FOR HIRING KRUNCH.CO EMPLOYEES
If during the term of a SOW or for six months thereafter, a Client directly or indirectly retains the services (whether as an employee, independent contractor or otherwise) of any employee of krunch.co (or ex-employee within three months of the employee’s departure from krunch.co), the Client agrees that krunch.co will be damaged, but that the amount of this damage will be difficult to determine. Accordingly, the Client agrees that for each such employee hired by the Client, the Client will pay krunch.co twenty-five thousand dollars (NZD $25,000) as liquidated damages.
15) DISPUTE RESOLUTION
15.1 Dispute resolution procedure: Where any dispute arises in relation to a SOW the parties will follow the procedure described below (except if a party seeks urgent interlocutory relief):
(a) Negotiation: The parties shall make genuine efforts to resolve the dispute by negotiation between them (ensuring the dispute is dealt with by the appropriate level of management).
(b) Mediation: If the parties fail to negotiate a resolution to the dispute within 14 days they shall then appoint a mediator approved by the Resolution Institute and attempt to resolve the dispute by mediation. The costs and expenses of the mediator shall be shared by the parties equally. If the parties cannot agree to a mediator, then the mediator shall be appointed by the Resolution Institute.
(c) Court proceedings: If mediation fails, or either party elects to opt out of the mediation process in accordance with the terms of the mediation as determined by the mediator, then the dispute may be submitted by either party to the jurisdiction of the appropriate court of New Zealand.
15.2 Continuity for both parties: To the extent reasonably practicable, in the event of a dispute or any court proceedings relating to a SOW, both parties will continue to perform its obligations under that SOW and all other SOW in accordance with their terms.
16.1 Jurisdiction: The parties agree that these Standard Terms and any SOW shall be governed by New Zealand law and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
16.2 Entire Agreement: These Standard Terms as incorporated into a SOW and each SOW, together with all documents appended to a SOW contains the entire understanding between the parties concerning their subject matter and supersedes all previous arrangements, agreements and understandings between the parties on the subject matter. No terms or conditions issued by you (at any time), standard or otherwise, shall apply to any Services engagement by Krunch.co unless incorporated as a variation to a SOW and agreed in writing.
16.3 Renewal: The initial term of the Agreement shall be the term as indicated on the Statement of Work from the date executed (Initial Term). Thereafter the agreement will automatically renew for further 12 month periods. At any time after expiry of the Initial Term, either party may terminate the Statement of Work by giving the other party at least 60 days’ prior written notice of its intention to terminate.
16.4 Variations to SOW: Any variations to a SOW (including, without limitation, to the details of the Schedules) must be in writing and signed by both parties.
16.5 Subcontractors: Krunch.co may, in its absolute discretion, subcontract any of the Services and to the extent any work is subcontracted, Krunch.co shall at all times be responsible for any default, failure, loss or otherwise caused by any subcontractor or occurring as a result or any act or omission of any subcontractor engaged by Krunch.co.
16.6 No Set off: Payments required to be made by you under a SOW shall be made in cleared funds and without any deduction or set off.
16.7 No Agency or Partnership: Nothing in these Standard Terms or any SOW evidences or will be deemed to constitute a partnership or joint venture relationship between all or any of the parties and nothing in the relationship between the parties is to be construed as giving any party the authority to bind or obligate any other party in any way, whether as an agent or partner or otherwise except to the extent, if any, as expressly stated in a SOW.
16.8 Promotion Rights: Krunch.co retains the right to photograph, reproduce, publish and display the Deliverables and/or project in Krunch.co’s portfolios and websites, and other media or exhibits for the promotion of Krunch.co’s business.
16.9 Costs: Krunch.co may recover any all costs incurred by it enforcing the provisions of a SOW, including debt collection costs and any legal costs as between solicitor and client on an indemnity basis.