In this Contract the following terms have the following meanings:
Booking Confirmation means a document issued by reachmedia confirming a booking for Services.
Business Day means Monday to Friday, excluding public holidays in Auckland.
Commercial Terms and Conditions means the terms and conditions set out in clauses 1 to 8.
Contract has the meaning given to that term in clause 1.2.
Confidential Information means information that is marked confidential or is by its nature confidential to the other party.
Dispute has the meaning given to that term in clause 7.2.
Distribution Requirements means the terms set out in Schedule A (Distribution Requirements).
Force Majeure means any act, omission or circumstance beyond the reasonable control of the affected party. This includes, but is not limited to, war, strikes, lockouts, industrial disputes or arrest, government restrictions or intervention, late receipt of Product or Design, transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, adverse weather conditions, theft, vandalism, riots, civil commotions or accidents of any kind, to the extent that these are beyond the reasonable control of the affected party.
Intellectual Property Rights includes copyright, and all rights conferred under statute, common law or equity in relation to inventions (including patents), trade marks, designs, circuit layouts,domain names, rights in databases, confidential information, trade secrets, know-how, and all other proprietary rights, whether registered or unregistered, and all equivalent rights and forms of protection anywhere in the world, together with all rights, interests or licence in or to any of the foregoing.
Product means any catalogue, flyer and/or product sample.Services has the meaning given to that term in clause 1.1.
1.1. Reach Media New Zealand Limited ("reachmedia") shall supply the services as described in the Booking Confirmation (the "Services") to the person(s) described or referred to in the Booking Confirmation (the "Client").
1.2. These Terms and Conditions, together with the Booking Confirmation and the Distribution Requirements, comprise the ("Contract") between Reachmedia and the Client.
1.3. If there are any inconsistencies between these Terms and Conditions, the Distribution Requirements or the Booking Confirmation, unless expressly stated otherwise the terms of these Terms and Conditions prevail, followed by the Booking Confirmation and then the Distribution Requirements.
1.4. Terms capitalised but not defined in these Terms and Conditions have the meaning given to them in the Distribution Requirements or the Booking Confirmation, as the case may be.
1.5. Reachmedia will notify the Client as soon as practicable of any circumstance(s) that may have a material effect on ReachMedia’s ability to supply the Services in accordance with the Booking Confirmation.
1.6. Reachmedia is entitled to supply Services to any other client at any time.
1.7. Reachmedia may use sub-contractors to carry out any of its obligations without prior written consent from the Client.
1.8. In providing the Services, ReachMedia will comply with all applicable laws and regulations.
1.9. Where the Services include physical distribution of the Product, ReachMedia will use reasonable endeavours to ensure that:
1.9.1. Product is not delivered to letterboxes where a sign requesting non-delivery or an “Addressed Mail Only” sign is displayed;
1.9.2. Product is not delivered to addresses where there is no letterbox or where the letterbox is unsuitable for receiving or holding the Product;
1.9.3. Product is not delivered to letterboxes that are already full; and
1.9.4. Other mail/product already in the letterbox is not removed to make space for the Product.
1.10. Reachmedia will use reasonable endeavours to rectify any instances where the Product is reported to be in the mailboxes referred to in clause
1.9 and ensure that in future the Product is not delivered to these mailboxes.
1.11. It is the Client’s responsibility to ensure that the Product is presented at the specified processing locations according to the requirements set out in the Distribution Requirements, which can be viewed on the ReachMedia website: www.reachmedia.co.nz.
1.12. If Product logistics are not managed by ReachMedia, it is the Client’s responsibility to ensure that the Product arrives at the destination(s) as instructed by ReachMedia by the date specified on the Booking Confirmation provided. The Client acknowledges that late Product arrival could result in extra charges and / or delays to the distribution.
1.13. The Client must not insert any secondary product within the Product.
1.14. Reachmedia reserves the right to:
1.14.1. open and inspect the Product at any time and may refuse to accept or deliver the Product at its reasonable discretion; and
1.14.2. to reject imperfect, defective or unsuitable Product provided by the Client at its discretion (including but not limited to when the Product breaches the warranties set out in clause 4.5).
1.15. The Client acknowledges and agrees that:
1.15.1. ReachMedia does not guarantee full distribution of the Product to every household within the agreed distribution areas, and no liability will be accepted for failure to deliver to any household within an agreed distribution area; and
1.15.2. there are conditions beyond ReachMedia's control which may adversely affect Product distribution including but not limited to are, health and safety issues, hazardous conditions, adverse weather conditions and letterbox accessibility
1.16. Where the Services include designing and/or printing, ReachMedia will:
1.16.1. Provide to the Client, prior to publishing, distributing or issuing the proposed Product, a draft for the Client to promptly review and approve;
1.16.2. in obtaining the Client's approval, be protected against all liability, loss, damage, claims and expenses caused by any inaccuracy or other defect in the Product which was present in the proposed Product reviewed by the Client; and
1.16.3. in obtaining the Client's approval, be indemnified by the Client against all liabilities, loss, damages, claims and expenses incurred by them as a result of any person relying on the false contents of the Product.
2.1. The pricing for services is set out in the Booking Confirmation.
2.2. The Client may request an amendment to the Services (e.g. change to the delivery areas, or Delivery Window if there is a delivery service available on the date requested) or cancel the Services by notifying ReachMedia in writing. Any proposed amendments will form part of the Services on and from the date that ReachMedia approves the Client's request in writing.
2.3. The Client accepts that any proposed amendments may not reasonably be able to be catered for by ReachMedia or its sub-contractors and that ReachMedia has the ability to approve any proposed amendments at its sole discretion.
2.4. The Client agrees that the following fees may apply to any amendments to the Services or cancellation:
2.4.1. amendments or cancellations received more than 3 Business Days prior to the start of the Client's applicable Delivery Window or Service Delivery Date (as set out in the Booking Confirmation) will not incur any penalty fee (except for Design or Print Services or Services that include "Postie Bookings" (as set out in the Booking Confirmation) as per clauses 2.4.4 and 2.4.5 below) but the Client will be responsible for any costs ReachMedia incurs (i.e. freight, processing etc) prior to or as an outcome of amending or cancelling the Services, including where such costs have been incurred by ReachMedia due to charges being passed on from any relevant subcontractors;
2.4.2. any amendments made to the Services within 3 Business Days of the start of the Client's Delivery Window or Service Delivery Date, as the case may be, may incur an amendment fee of either 25% of the value of the applicable charges or $100.00 plus GST, whichever is the greater;
2.4.3. any booking cancelled on or after the required Product Lodgement Date or Design Lodgement Date may incur a cancellation fee of either 25% of the value of the applicable charges or $350.00 plus GST, whichever is the greater;
2.4.4. any cancellation of Design or Print Services less than 3 weeks but more than 3 Business Days from the required Design Lodgement Date may incur a cancellation fee of either 10% of the value of the applicable charges or $50.00 plus GST, whichever is the greater;
2.4.5. any Postie Booking cancelled less than 3 weeks but more than 3 Business Days from the required Product Lodgement date (within 4 weeks of the start of the Delivery Window) may incur a cancellation fee of either 10% of the value of the applicable charges or $50.00 plus GST, whichever is the greater; and
2.4.6. any further cost or expense incurred by any sub- contractor who was hired by ReachMedia to perform all or part of the Services.
2.5. The Client may be charged additional costs (including those charges or costs passed on to ReachMedia by its relevant sub- contractors) incurred as a result of:
2.5.1. weight of the Product to be delivered exceeds that which was originally booked;
2.5.2. Product or Design presented after the required Lodgement times in the Distribution Requirements or Booking Confirmation, as the case may be;
2.5.3. Product not presented in accordance with the requirements set out in the Distribution Requirements; or
2.5.4. changed printing or transport arrangements without at least 14 days’ notice to ReachMedia in advance of the changes.
3.1. Unless the Client, or any agency acting on its behalf (the "Agency"), holds a credit account with ReachMedia, the Client will pay the entire amount for the Services upfront and prior to any Services being provided. Payment is deemed to have been received once it has been deposited as clear funds into ReachMedia’s bank account.
3.2. The Client may wish to make an application for credit by completing a credit application form. The Client will be considered to hold a credit account with ReachMedia once the application has been submitted to ReachMedia, processed and approved in writing by ReachMedia. Approval of any application for credit is at ReachMedia's discretion and ReachMedia reserves the right to require payment in full and in advance from customers who do not meet ReachMedia's credit criteria, prior to providing any Services.
3.3. If the Client holds a credit account, ReachMedia will issue a valid GST invoice to the Client. If the Client does not hold a credit account then the Booking Confirmation form acts as the GST invoice.
3.4. If the Client disputes any amount payable or paid for Services, then the Client will:
3.4.1. advise ReachMedia in writing as soon as reasonably practicable, identifying the amount in dispute and the reasons for the dispute; and
3.4.2. pay any undisputed portion of any invoice by the due date and in accordance with the terms of this Contract.
3.5. If any sum required to be paid under this Contract is not paid before or on its due date, and remains unpaid at the end of a period of seven (7) days following its due date, or if any amount in dispute is later agreed or held to be due and owing, ReachMedia will be entitled to: 3.5.1. charge the Client interest on that sum at the rate of 1% per month for the period beginning on the due date and ending on the date the sum is paid (including the period after any judgment);
3.5.2. charge to the Client all reasonable costs incurred by ReachMedia in relation to any action taken by or on behalf of ReachMedia for the recovery of such amount from the Client; and
3.5.3. suspend the provision of all or any Services until payment of such amount is received by ReachMedia in full, without liability whatsoever to the Client for any loss, damage, cost or expense resulting from such suspension.
4.1. ReachMedia warrants that it has authority and ability to enter into, and perform, this Contract without breach of any other obligation (statutory or contractual) on it or its officers;
4.2. Reachmedia shall not be liable for loss of profits, loss or damage to reputation or any consequential or indirect losses, costs or expenses under or in connection with this Contract, the Product or any of the Services.
4.3. Subject to clause 1.16, ReachMedia’s aggregate liability arising out of or in connection with any Services (in contract, tort (including negligence) or otherwise) shall be limited to and shall not exceed the total charges connected with those particular Services.
4.4. A party shall not be liable for any breach of this Contract to the extent that such breach is due to a Force Majeure, provided that the party uses reasonable endeavours to mitigate the effect of the Force Majeure and resumes full performance as soon as reasonably practicable.
4.5. The Client warrants that:
4.5.1. any and all Product or any and all content provided to ReachMedia relating to the Product or the Services:
4.5.2. is complete and accurate;
4.5.3. is not and does not contain any matter that is offensive, obscene or defamatory;
4.5.4. is owned by the Client and the Client has the rights to provide it, use it, or make it available for use and distribution as part of the Product or the Services;
4.5.5. does not infringe any other party's privacy rights or Intellectual Property Rights; and
4.5.6. complies with all relevant laws, regulations, codes and standards in relation to the Product or the Services;
4.5.7. all carriage undertaken by ReachMedia under this Contract will be at ‘limited carrier’s risk’ under the Carriage of Goods Act 1979; and 4.5.8. it is acquiring the Services in trade and that accordingly the provisions of the Consumer Guarantees Act 1993 do not apply.
4.6. Without limiting any other right or remedy to it, ReachMedia may reject any Product or proposed Product which fails to comply with the Client's warranty in clause 4.5.
4.7. The Client indemnifies ReachMedia and its officers, employees, agents, and contractors against all liability, claims, actions, proceedings, losses, damage, costs and expenses (including legal costs) whatsoever arising that ReachMedia or such other persons suffer or become liable for as a result of the Client's breach of this Contract or as a result of any allegation that ReachMedia's possession or use of any information, rights or materials supplied by the Client under this Contract infringes any third party's Intellectual Property Rights.
5.1. Each party acknowledges that the other party is the owner (or the licensee as the case may be) of certain property, including Intellectual Property Rights. The parties agree to have no claim over the other’s property and each has no license to use the other’s property, except as necessary to give effect to this Contract. Neither party will do anything, whether by act or omission and whether directly or indirectly, which may prejudice or infringe the other party’s property.
5.2. Unless otherwise agreed in writing by the parties, any new Intellectual Property Rights developed, commissioned or created under or in connection with this Contract will be owned by ReachMedia.
6.1. Each party acknowledges that in performing its obligations under this Contract, it may obtain confidential and/or proprietary information concerning the other party or any other third parties. Where a party comes into possession of any Confidential Information:
6.1.1. that party and its respective officers, employees, contractors and/or agents will only be permitted to use the Confidential Information to the extent necessary to enable it to perform its obligations under this Contract; and
6.1.2. that party and its respective officers, employees, contractors and/or agents will not disclose the Confidential Information to any third party without the prior written consent of the other party, unless required by law to do so (and any such disclosure is only to the extent necessary).
7.1. ReachMedia shall investigate any complaint in relation to its failure to meet its obligations to The Client provided such complaint is made in writing addressed to the headquarters of ReachMedia within 5 Business Days of the date of completion of the distribution of the Product or provision of the Services that are the subject of the complaint. All complaints relating to the physical distribution of the Product must contain at least a complainant’s name, house number, street, suburb, town/city, reason for the complaint and contact details.
7.2. If any other dispute arises between the parties concerning the interpretation, application or operation of this Contract ("Dispute"), the parties will endeavour in the first instance to resolve the Dispute between themselves, and with both parties acting in good faith.
7.3. If the Dispute has not been resolved within 14 days after the Dispute has been notified by a party in writing, either party may give the other written notice requiring the parties to attend mediation. The parties will agree on the mediator or, if agreement has not been reached within seven days after the notice to attend mediation, the matter will be referred to the Resolution Institute to appoint a mediator. Unless the parties agree otherwise, the mediation will take place in an agreed location within 10 days after a mediator has been appointed and the costs of the mediation, excluding the parties’ own legal and preparation costs, will be shared equally. The mediator will determine the process for mediation.
7.4. Subject to the following clause, neither party may issue legal proceedings in any court in relation to a Dispute until mediation has concluded, or, if neither party has given notice requiring the other to attend mediation, until 28 days after the Dispute has been notified by a party in writing. Mediation is deemed to have concluded when both parties agree that it has concluded, or the mediator confirms in writing to both parties that it has concluded.
7.5. This agreement does not limit the parties' right to seek urgent interlocutory relief.
7.6. The parties agree that the existence of any Dispute and the information relating to any Dispute will remain confidential, unless they agree otherwise or a court of law determines otherwise.
7.7. The parties may at any time agree in writing to resolve their Dispute by arbitration before a single arbitrator. In that event:
7.7.1. the arbitrator will be appointed by agreement or, failing agreement within fourteen days after the parties have agreed to arbitration, by the Resolution Institute;
7.7.2. the arbitration will take place in an agreed location, unless the parties agree otherwise;
7.7.3. the costs of arbitration, excluding the parties’ own legal and preparation costs, will be shared equally, unless the arbitrator determines otherwise;
7.7.4. the Second Schedule to the Arbitration Act 1996 will not apply; and
7.7.5. the arbitrator will determine the procedure for the arbitration.
8.1. This Contract will be governed by and construed in accordance with the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
8.2. Each party shall, at its own expense, promptly sign and deliver any documents, and do all things, which are reasonably required to give full effect to the provisions of this Contract.
8.3. Nothing in this Contract will create, constitute or evidence any partnership, joint venture, agency, trust or employer/employee relationship between the parties, and a party may not make, or allow to be made, any representation that any such relationship exists between the parties. A party will not have the authority to act for, or to incur any obligation on behalf of, any other party, except as expressly provided for in this Contract.
8.4. If either party fails to exercise or delay exercising any right it has under this Contract, that failure or delay will not constitute a waiver of that right and will not prevent that party exercising that right in the future.
8.5. Except as otherwise expressly provided in this Contract, this Contract constitutes the entire agreement, understanding and arrangement (express and implied) between the parties relating to the subject matter of this Contract and supersedes and cancels any previous Contract, understanding and arrangement relating thereto whether written or oral.
8.6. To the greatest extent permitted by law, ReachMedia excludes all guarantees, representations, terms and warranties not expressly included in this Contract.
8.7. If any provision of this Contract is or becomes unenforceable, illegal or invalid for any reason it will be deemed to be severed from this Contract without affecting the validity of the remainder of this Contract and will not affect the enforceability, legality, validity or application of any other provision of this Contract.
8.8. ReachMedia may assign or transfer any of its rights or obligations under this Contract without the prior written consent of the Client. The Client may not assign or transfer any of part of this Contract without the written consent of ReachMedia (consent not to be unreasonably withheld). Change in the effective control of a party is deemed to be an assignment.
8.9. Any variation to this Contract will be in writing, signed by each party, and attached as an annex to the respective parties' copies of the Contract.
8.10. Each notice under this Contract shall be in writing and delivered personally or sent by post, facsimile or email. A notice is deemed to be received: (a) if delivered personally or by email, when delivered; (b) if posted, three Business Days after posting; or (c) if sent by facsimile, upon production of a transmission report which indicates the facsimile was sent in its entirety to the facsimile number of the recipient.
8.11. Following termination or expiry of this Contract clauses 5 (Intellectual Property), 6 (Confidentiality), 4.2 and 4.3 (Liability), together with other provisions that are by their nature intended to survive, will remain in effect.
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