CWK NZ Limited - Terms and Conditions
1.0 DEFINITIONS
1.1 Customer means the entity who purchases Services from CWK and its employees, officers, contractors and agents as set out in the Customer Detail Form.
1.2 Customer Detail Form means the form attached to these Terms setting out, along other things, the specifics of the Services and the Deliverables.
1.3 CWK means CWK NZ Limited and includes its agents and employees.
1.4 Deliverables means the deliverables to be created and supplied to the Customer by CWK as part of this engagement, as set out in the Customer Detail Form, and including (but not limited to) all social media content, materials, and outputs. Deliverables may also include drafts, edited versions, and final versions as agreed in writing between the parties (but, for the avoidance of doubt, any Deliverables provided that are not expressly set out in the Customer Detail Form may result in the Total Campaign Fee being increased by CWK, acting reasonably).
1.5 GST means goods and services tax payable under the Goods and Services Tax Act 1985.
1.6 Intellectual Property means and includes all intellectual property, proprietary and industrial rights conferred under statute, common law or equity relating to the Services, Deliverables, trademarks, unregistered trademarks and designs, copyrights, patents, confidential information, know-how, and all other rights resulting from intellectual activity.
1.7 Services means the creation and provision of the Deliverables as set out in the Customer Detail Form and any other services including but not limited to content creation, social media posting, promotion, event appearances as agreed between the parties, to be provided by CWK to the Customer (but, for the avoidance of doubt, any Services provided that are not expressly set out in the Customer Detail Form may result in the Total Campaign Fee being increased by CWK, acting reasonably).
1.8 Terms means these terms and conditions.
1.9 Total Campaign Fee means the Total Campaign Fee recorded in the Customer Detail Form and payable by the Customer for the Services and Deliverables.
1.10 Whitelisting means the Customer’s right, subject to CWK’s prior written consent, to use CWK’s account handle, likeness, and approved Deliverables for the purpose of creating and running paid social media advertisements.
2.0 APPLICABILITY OF TERMS
2.1 Any Services and/or Deliverables provided by CWK to a Customer are subject to the Customer Detail Form and these Terms.
2.2 No addition or variation to these Terms shall be recognised by CWK unless formally agreed to in writing by both parties, and any such addition and variation shall only apply to the particular Services being supplied as to which it is noted.
3.0 SERVICES
3.1 CWK will provide Services to the Customer.
3.2 Deliverables, timelines, required formats and any other Service related details will be set out in the Customer Detail Form.
3.3 CWK reserves the right to decline providing Services that may be inconsistent with CWK’s brand and audience or otherwise affect CWK’s reputation (in CWK’s opinion, acting reasonably).
4.0 PAYMENT AND INVOICING
4.1 The Total Campaign Fee to be charged to the Customer is subject to variation on notice in writing to the Customer to the extent that, CWK’s reasonable opinion, the scope of the Services and/or Deliverables required by the Customer differs from those set out in the Customer Detail Form.
4.2 An estimate of the anticipated expenses to provide the Services and Deliverables is set out in the Customer Detail Form. For the avoidance of doubt, these are intended to be an estimate only and where additional costs (e.g. travel, production, third party services) are required, these will be invoiced separately and reimbursed within 7 days of invoicing.
4.3 Prices will be quoted in New Zealand dollars, excluding New Zealand GST.
4.4 Payment of invoices (less any deposits paid) shall be made in full by the 20th of the month following supply unless other arrangements are made in writing between parties prior to supply. The Services shall be supplied subject to the payment of such deposits as are arranged between the parties. Deposits are not refundable except to the extent required by law. In the event any amount not being paid by the due date, the Customer will pay CWK all costs associated with collection of the debt including legal costs and interest at 2% per calendar month (compounding) on the balance outstanding at the commencement of every month.
4.5 The Customer indemnifies CWK and/or CWK’s agents against all liability and actions arising from the recovery of overdue accounts.
5.0 CONTENT RIGHTS & USAGE
5.1 The Intellectual Property in relation to the Services and Deliverables will be owned as set out in the Customer Detail Form, and where no option is selected, all Intellectual Property will be owned by CWK, and CWK grants the Customer a licence to use any content for the agreed campaign, duration, and platforms only and as set out in the Customer Detail Form, conditional on the Customer having paid all amounts due and payable in relation to the Services and Deliverables.
5.2 Any extended use of the Services, including but not limited to, paid media, Whitelisting, reposting after a campaign, print or international use, must be approved in writing by CWK and may incur additional costs.
5.3 Content created by CWK may not be altered, edited, cropped, or repurposed without CWK’s written approval.
5.4 The Customer:
(a) will sign any documentation considered reasonably necessary by CWK to perfect CWK’s ownership of its Intellectual Property;
(b) will co-operate fully and as CWK may require in obtaining, defending or enforcing its Intellectual Property;
(c) will not dispute CWK’s ownership of the Intellectual Property;
(d) will not hold itself out as the owner of any of the CWK’s Intellectual Property in the Services; and
(e) will not market, sell, lease, loan or otherwise distribute, transfer, assign, duplicate, display or disclose CWK’s Intellectual Property in the Services and/or Deliverables.
6.0 APPROVALS AND REVISIONS
6.1 CWK will provide draft content for the Customer’s approval as and when agreed and as set out in the Customer Detail Form.
6.2 If the Customer does not provide feedback to the draft content within the agreed timeframes, content will be deemed approved.
7.0 DISCLOSURE AND COMPLIANCE
7.1 CWK shall be responsible for complying with the Advertising Standards Authority Codes of Practice and disclosing all partnerships in connection with the supply of the Services.
7.2 The Customer must ensure that all claims about the Customer’s products/services are accurate, lawful, and substantiated under the Fair Trading Act 1986 and Consumer Guarantees Act 1993.
7.3 The Customer agrees to indemnify CWK against any claims, penalties, or losses arising from false or misleading claims about its product or service.
8.0 TERMINATION
8.1 Either party may terminate these Terms immediately by written notice if the other party:
(a) commits a material breach of these Terms that is not remedied within 10 business days of receiving notice; or
(b) becomes insolvent, bankrupt, or is otherwise unable to pay its debts as they all due.
8.2 Upon termination or cancellation, all rights granted to the Customer to use the Deliverables that have not been fully paid for will immediately cease.
8.3 Termination does not affect any rights or remedies accrued up to the date of termination.
8.4 Clauses relating to payment, Intellectual Property, confidentiality, and liability will continue in force after termination.
9.0 LIMITATION OF LIABILITY
9.1 To the extent that CWK is liable for any reason for any loss suffered or liability incurred by the Customer arising from any breach of these Terms or for any other reason, such liability is limited to the total fees paid for the relevant Services.
9.2 The Customer will not be entitled to make any claim against CWK (and CWK will not be liable to the Customer) under or in connection with these Terms if and to the extent that such claim is entitled to be recovered by the Customer under a policy of insurance or would have been entitled but for a breach of these Terms by the Customer.
9.3 Unless otherwise required by law, the Supplier will not be liable in any event for any loss of profits or any consequential, indirect or special damage, loss or injury of any kind suffered by the Customer or any other person.
10.0 NO WAIVER
10.1 Failure by CWK to enforce any of the terms and conditions contained herein shall not be deemed to be a waiver of any of the rights or obligations CWK has under these Terms.
11.0 SEVERANCE
11.1 Should any part of these terms be unenforceable, such part will be severed, and the remainder of these terms will remain binding.
12.0 PRIVACY ACT
12.1 The Customer authorise CWK to collect and hold personal information from any source it considers appropriate to be used for the purposes of provided the Services, for communicating promotional activities and services information, for debt collection purposes or for any other related purpose. The Customer has a right of access to such personal information and may request correction of any personal information held by CWK.
13.0 CONFIDENTIALITY
13.1 The Customer acknowledges that from time to time information that is confidential in nature may be disclosed to CWK. Except as required by law, CWK will preserve as confidential any information that it acquires from the Customer.
14.0 ASSIGNMENT
14.1 The Customer may not assign or otherwise transfer or encumber the Customer’s rights or obligations under these terms without CWK’s consent.
15.0 FORCE MAJEURE
15.1 No claim or liability will arise against CWK under these terms, if and to the extent that CWK’s failure or omission to carry out or observe any provisions of these terms arise by reason of Force Majeure. Force Majeure means any event outside the reasonable control of CWK.
15.2 If the Customer cannot carry out or observe any provisions of these terms because of force majeure, it must immediately give full details of the existence of and reasons for the force majeure to CWK in writing.
16.0 APPLICABLE LAW
16.1 The Customer specifically warrants and represents to CWK that:
(a) where Services that it acquires under these Terms are required for the purposes of a business in terms of section 2 and 43 of the Consumer Guarantees Act 1993, the provisions of that Act do not apply to any supply of Services made pursuant to these Terms;
(b) sections 9, 12A and 13 of the Fair Trading Act 1986 will not apply; and
(c) the provisions of Part 3 of the Contract and Commercial Law Act 2017 will not apply.
17.0 JURISDICTION
17.1 Any contract based on these Terms shall be interpreted and administered in accordance with New Zealand laws, regulations, statutory and industry standards, and accepted New Zealand customary industry practice.
17.2 The parties agree to submit to the non-exclusive jurisdiction of the New Zealand courts.
18.0 ENTIRE AGREEMENT
18.1 Except as otherwise agreed in writing, these Terms and the Customer Detail Form constitute the entire agreement between the Customer and CWK. No other understandings, representations, conditions or warranties will apply unless expressly agreed in writing by CWK.
