Terms and Conditions
Set out below are the Terms and Conditions (“Terms”) that apply to services Media Co Global Limited (hereinafter referred to as Calibre + Candor) provides to a Client subject to specific conditions attached to any Engagement Letter, agreed Summary Brief or scope of works, or within a binding Client Agreement.
1. Defined Terms
Unless the context requires otherwise, the following capitalised terms have the meaning ascribed to them:
1.1 ‘’Agreed Engagement” means the agreement reached between Calibre + Candor and the Client for Calibre + Candor to perform particular Services, such as for instance to undertake a campaign or other piece of work, which will typically be recorded in a Summary Brief, scope of works and/or Engagement Letter.
1.2 “Client” means the party receiving services from Calibre + Candor and who is identified as such in the Engagement Letter provided to the Client.
1.3 “Confidential information” means information which has been imparted by one party to another in confidence or which the recipient knows or ought to know is confidential. In the case of the Client it includes their database, market, commercial and client information and applications, and in the case of Calibre + Candor the Services, including all documentation and materials, technical information applications and “know how”. It is not information that is in the public domain.
1.4 “Engagement Letter” means the Terms of Engagement Letter provided by Calibre + Candor to a Client as soon as possible at the beginning of the provision of Services.
1.5 “Intellectual Property” means copyright, patents, registered designs, trademarks and all other similar rights in relation to Services, whether legally recognised or not.
1.6 “Calibre + Candor” is the trading name of Media Co Global Limited, the party who will be providing services to the Client.
1.7 “Services” mean any service provided by M Calibre + Candor to the Client and may include one-off projects or ongoing provision of Services.
1.8 “Summary Brief” means the detailed Client specific brief of the Services to be provided by Calibre + Candor.
2. Our Roles
2.1 Calibre + Candor may arrange and procure media on the Client’s behalf, in which event fees as set out in clause 4.1 will be payable and the cost of media will be paid by the Client direct to the supplier.
2.2 Alternatively Calibre + Candor may purchase and resell media, in which event the resale cost will be charged to the Client and will be payable to Calibre + Candor in addition to other fees and charges that are payable under these Terms and Conditions.
3. Confidentiality and Privacy
3.1 Calibre + Candor and the Client shall not (except to any extent specifically agreed) disclose the other’s Confidential Information to a third party. This excludes however where disclosure is compelled by law (but the discloser will first give the owner of the information a reasonable opportunity to object to the disclosure).
3.2 In terms of the Privacy Act 1993, the Client authorises Calibre + Candor to collect their personal information either directly from the Client or from any other agency. Client refusal to provide this information may affect the Client’s ability to retain Services from Calibre + Candor.
4.1 Calibre + Candor will charge a fee that is calculated by reference to the Services provided to the Client. The basis of fees (whether hourly rate or set fee) are set out in the Engagement Letter and Summary Brief provided to each Client. These fees are exclusive of GST.
4.2 Unless otherwise agreed, Calibre + Candor may charge in addition to their fees a recovery for reasonable travel and/or accommodation costs incurred, and any additional services provided that are outside of the scope of the Services in the Agreement.
4.3 If a Client-agreed scope of work is subsequently cancelled by the Client then, irrespective of any rights or remedies arising as a consequence, the Client will be liable to pay Calibre + Candor for its applicable fees for that scope of work, calculated on the basis of the Engagement Letter and Summary Brief, and will also reimburse Calibre + Candor for its out of pocket expenses.
4.4 Fees may also include any costs incurred prior to entering of a full Client Services Agreement.
5.1 Calibre + Candor will invoice the Client on an up-front, staged or end of project basis as set out in the Client’s Engagement Letter.
5.2 Up-front invoicing will be (unless otherwise agreed between Calibre + Candor and the Client) 50% of the total set fee, which will be invoiced on confirmation of the Services.
5.3 Staged and end of project invoices are sent on the last day of the month, or the following business day if the last day of the month falls in a weekend or public holiday.
5.4 Payment of invoices are due in full no later than 5pm on the 20th day of the month immediately following receipt of invoice unless otherwise agreed to in writing between Calibre + Candor and the Client.
5.5 If any payment owing to Calibre + Candor by the Client is not made within 14 business days of the due date Calibre + Candor has the right to withdraw and suspend any Services provided.
5.6 Also Calibre + Candor may charge interest at a rate of 12% per annum calculated daily on any invoices that are paid late. In addition the Client will indemnify and hold harmless Calibre + Candor against and reimburse Calibre + Candor for any costs or losses it incurs in connection with a late payment. This may include debt collection and legal costs holding costs and any liability to or claim by a third party in connection with a payment default by the Client.
6.1 Unless otherwise agreed with the Client, Calibre + Candor may communicate with the Client by electronic means such as email and facsimile. Such communications are not secure and may be subject to unauthorised interception, interference, error or virus.
6.2 While Calibre + Candor will take all reasonable steps to protect communications from such issues, Calibre + Candor will not accept any responsibility and will not be liable for any damage or loss to the Client if communications are compromised.
6.3 Any mail correspondence from the Client shall be sent to Calibre + Candor at PO Box 74-166 Greenlane, Auckland 1546 and will be deemed to be received within three business days unless advised otherwise.
7. Intellectual Property
7.1 Background Intellectual Property and any Created Intellectual Property is and remains the exclusive property of Calibre + Candor. These terms include creative and strategy design and ideas, software, source code, calculations, modelling, methods and other “know-how” or Intellectual Property Rights which Calibre + Candor has introduced into or created during any project in the course of delivery of the Services, or has otherwise created in the course of planning, design or implementation stages, or are used to enable Created Materials to function.
7.2 The Client will upon full payment for Created Materials become the owner of intellectual property in those materials. For the avoidance of doubt Created Materials means the outputs and results from work undertaken by Calibre + Candor in the course of its engagement with the Company and also all other contracted deliverables and produced materials (written or not), including graphic design work, social media content and imagery, tv or any form of visual production, radio productions which is created, developed or produced for the Client. This right of ownership for the Client includes copyright in Created Materials and the right to reproduce or incorporate them into other works, and to amend or rework them.
7.3 Nothing in these Terms entitle a party to use the Intellectual Property of the other party in any way without written consent from that other party. The Client may only use Calibre + Candor’s Intellectual Property in a way that is expressly permitted and cannot claim Intellectual Property rights in any product or service that is derived from or reliant upon the Services.
7.4 Calibre + Candor however has the right to display or advertise any work completed for the Client in providing Services for the purposes of prospecting for other work or to demonstrate its abilities.
8. Warranties and Liabilities
8.1 The guarantees, warranties and conditions implied on the part of Calibre + Candor by any relevant law are excluded to the maximum extent allowed, specifically to the extent permitted the sale of Goods Act 1908, the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 will not apply
8.2 Calibre + Candor will not be liable for indirect or consequential damage or for any loss of business, property, profit or data, however caused, which may be suffered or incurred, or which may arise directly or indirectly from the provision of Services and in any event the maximum amount Calibre + Candor can be liable for is the total of all sums if received from the Client for the work affected.
8.3 Neither party will be liable for any delay or failure to perform Services under the Agreement if such failure or delay is due to an event or events over which that party could not reasonably have exercised control.
9.1 Unless the nature of the services, or the Engagement Letter or Summary Brief dictate otherwise, but subject as below, either party may terminate and discontinue the Services of Calibre + Candor by 90 days written notice to the other.
9.2 If the Client terminates the Agreement, they must however pay Calibre + Candor any costs incurred up to the termination and as a result of the termination. This includes any costs to Calibre + Candor in respect of any contractual commitments made by it in respect of Services, and in particular any fees due to Calibre + Candor to the date of termination.
9.3 At the completion of the written notice period, and on confirmation that any costs and fees have been paid in full by the Client, then Calibre + Candor shall return to the Client all passwords and documentation as reasonably requested.
10.1 If any dispute arises between Calibre + Candor and the Client in relation to any aspect of Services provided the parties will refer that dispute for determination of an expert with particular knowledge of the matters in dispute and expertise in resolving and determining dispute.
10.2 The expert will be appointed (at the request of either party) by the current President of the New Zealand Law Society. The expert will be empowered to set his or her own processes and timetable and may award costs to either party as well as damages or interest.
10.3 The expert will not act as an arbitrator or mediator and any determination of an expert by this process will be final and binding with no right of appeal.
11. Changes to these Terms and Conditions
11.1 Calibre + Candor may change these Terms and Conditions from time to time by written notice to the Client. Once the Client is notified of any change to these Terms they will be deemed to have accepted the change (with effect from the date of notice) if they continue to retain Calibre + Candor for the Services.
12.1 These Terms are governed by New Zealand law and are subject to the non-exclusive jurisdiction of the Courts of New Zealand.
13.1 Any notices to be served to Calibre + Candor shall be sent to:
PO Box 74-166
13.2 Any notices to be served to the Client shall be sent to their last known address provided.
14. Force Majeure
14.1 Neither Calibre + Candor nor the Client (“Parties”) will be liable for any act, omission, or failure to fulfil its obligations under this Agreement if such act, omission or failure arises from any cause reasonably beyond its control including acts of terrorism, strikes, lockouts, riots, acts of war, epidemics, government action superimposed after the date of this Agreement, fire, communication line failures, power failures, earthquakes, storms or other disasters (“Force Majeure”).
14.2 Any Party unable to fulfil its obligations due to Force Majeure shall:
14.2.1 immediately notify the other Parties in writing and provide full information concerning the Force Majeure event including an estimate of the time likely to be required to overcome the event;
14.2.2 use its best endeavours to overcome the event and minimise the loss to the other Party; and
14.2.3 continue to perform its obligations as far as practicable.
14.3 This clause is read subject to clause 9.2.