REACH Terms & Conditions

These Terms and Conditions are entered into between the Client specified in the Booking Confirmation;

and

Reach Media New Zealand Limited, a duly incorporated company headquartered at 81 Fort Street, Auckland Central, Auckland, 1010, New Zealand (REACH) and comprises:

1. the Booking Confirmation;
2. any Statements of Work;
3. the applicable Special Terms attached to the Booking Confirmation; and
4. these Terms and Conditions

(together, the Agreement). In the event of any inconsistencies, unless expressly stated otherwise the document listed highest above will prevail to the extent of the inconsistency.

TERMS AND CONDITIONS

1. about these terms
   
   1. These Terms and Conditions govern and form part of the Agreement between REACH and the Client, as named in a Booking Confirmation incorporating these Terms and executed on behalf of the Client.
   2. The Booking Confirmation and/or the Statement of Work (as applicable) sets out the details of the Services, applicable pricing, Term and other details, and may be varied, renewed or extended by a new Booking Confirmation and/or Statement of Work (as applicable) agreed between the Parties from time to time.
   3. The Special Terms set out the additional terms that apply for specific services that may be provided under a Booking Confirmation from time to time.
2. Definitions
   
   1. In this Agreement:

Business Day means any day other than a Saturday, a Sunday or a public holiday in Auckland.

Client Data means:

1. all data, information (including Personal Information) and other material made available to REACH by the Client or accessed or stored by REACH in any form for processing, storage, hosting or any other use by REACH in relation to the provision of the Services; and
2. includes, without limitation, any information about the Client's business, systems or networks, employees, contractors, and customers.

Confidential Information means information disclosed by a party under or in connection with the Agreement that is marked as confidential or which might reasonably be expected to be confidential in nature.

Data Services means the data analysis and market insight services specified in a Booking Confirmation and/or Statement of Work for Data Services.

Digital Services means the digital advertising and marketing services specified in a Booking Confirmation and/or Statement of Work for Digital Services.

Effective Date means the Effective Date specified in the Booking Confirmation.

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, 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 means all intellectual property rights whether conferred by statute, at common law or in equity, including all copyright, rights in relation to inventions, trade secrets and know how, rights in relation to designs, rights in relation to trademarks, business names and domain names.

Letterbox Services means the design, print, production, distribution, booking and product lodgement services specified in a Booking Confirmation for Letterbox Services.

Personal Information has the meaning given to that term in the Privacy Act 2020.

Services means the services, functions, and responsibilities described in the Booking Confirmation, and includes the Letterbox Services, the Digital Services, and/or the Data Services, detailed in the Booking Confirmation and, if applicable, the Statement of Work, together with any other services detailed in the Booking Confirmation and, if applicable, the Statement of Work.

Term has the meaning given to that term in clause 4.1.

1. services
   
   1. The Client appoints REACH, and REACH agrees, to supply Services to the Client in accordance with the Agreement, including applicable terms in the Special Terms.
   2. REACH may use sub-contractors to carry out any of its obligations under the Agreement without prior written consent from the Client.
   3. REACH will notify the Client as soon as practicable of any circumstance(s) that may have a material effect on REACH’s ability to:
      1. meet the requirements of the Agreement; or
      2. supply the Services in accordance with the terms of the Agreement.

On such notice, the parties will use reasonable endeavours to agree how the Services will be performed.

1. Except where REACH is performing design services under a Booking Confirmation, the Client will be solely responsible for delivering to REACH all of the materials that comprise each campaign within the timeframes notified by REACH (which will be a minimum of three Business Days prior to the launch date).

1. Term and termination
   
   1. The Agreement commences on the Effective Date, and will continue in full force and effect until completion of the Services described in the Booking Confirmation and, if applicable, the Statement of Work, or the Agreement is terminated in accordance with this Section 4 or the terms of the Booking Confirmation (as applicable) (Term).
   2. Either party may terminate the Agreement immediately by written notice if the other party:
      1. commits a material breach of the Agreement that is either not capable of remedy or has not been remedied within thirty (30) days of written notice requiring the defaulting party to do so; or
      2. becomes insolvent or bankrupt, fails to pay its debts as they fall due or becomes subject to any form of insolvency action or administration that is not dismissed within 120 days.
   3. The termination or expiry of the Agreement for any reason will be without prejudice to either party's rights or remedies under the Agreement arising prior to such termination or expiry or expressed to take effect or continue in effect following such termination or expiry.
   4. Following termination, clauses 4.4 (Effect of termination), 6 (Intellectual property), 7 (Confidentiality), 9 (Warranties, indemnities and liability), 11 (Disputes), 12 (General), together with any other provisions that are by their nature intended to survive, will remain in effect.
2. Pricing and invoicing
   
   1. All Fees are described in and payable in accordance with the payment terms described in the Booking Confirmation.
   2. Unless the Client, or any agency acting on its behalf in accordance with clause 12.3 (the Agency), holds a credit account with REACH, the Client will pay the entire amount for the Services prior to the due date specified in the Booking Confirmation (if any). Payment is deemed to have been received once it has been deposited as clear funds into REACH’s bank account.
   3. 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 REACH once the application has been submitted to REACH, processed and approved in writing by REACH. Approval of any application for credit is at REACH's discretion and REACH reserves the right to require payment in full and in advance from the Client if it does not meet REACH's credit criteria, prior to providing any Services.
   4. If the Client holds a credit account, REACH will issue a valid GST invoice to the Client. If the Client does not hold a credit account, then the Booking Confirmation acts as the GST invoice.
   5. If an Agency is acting or making a booking on behalf of the Client, and that Agency holds a credit account, REACH will supply the Client with a Booking Confirmation for approval prior to providing the Services and then proceed to issue a valid GST invoice to the Agency, to be paid on behalf of the Client.
   6. If the Client disputes any amount payable or paid for Services, then the Client will:
      1. advise REACH in writing as soon as reasonably practicable, identifying the amount in dispute and the reasons for the dispute; and
      2. pay any undisputed portion of any invoice by the due date and in accordance with the terms of this Agreement.
   7. The Client will pay each invoice within 30 days of date of invoice in New Zealand Dollars. If any sum required to be paid under the Booking Confirmation is not paid before or on its due date, and remains unpaid at the end of a period of five Business Days following its due date, or if any amount in dispute is later agreed or held to be due and owing, REACH will be entitled to:
      1. charge the Client interest on the sum at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is lower, until payment is made in full;
      2. charge to the Client all reasonable costs incurred by REACH in relation to any action taken by or on behalf of REACH for the recovery of such amount from the Client; and
      3. suspend the provision of any and all Services until payment of such amount is received by REACH in full, without liability whatsoever to the Client for any loss, damage, cost or expense resulting from such suspension.
   8. REACH may pass on extra costs incurred by its contractors and service providers due to fuel price variations. Such costs will be notified to the Client.
3. Intellectual property
   
   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. 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.
   2. The Client remains the owner of all Intellectual Property Rights in any Client Data that the Client makes available to REACH, including any Client Data that is incorporated into an output of the Services, and grants to REACH a worldwide, non-exclusive, irrevocable, royalty-free, transferable license to use, store, copy, modify, make available and communicate the Client Data for the limited purpose of performing REACH's obligations under the Agreement.
   3. Unless otherwise agreed in writing by the parties, any new Intellectual Property Rights developed, commissioned or created under, or in connection with, the Agreement will be owned by REACH (New IP). Unless otherwise specified in the Booking Confirmation and/or Statement of Work, REACH grants to the Client a worldwide, exclusive, royalty-free, non-transferable license to use, store, copy, modify, make available and communicate the New IP for the purposes of receiving the full benefit of the Services and any deliverables.
   4. REACH's logo and intellectual property may not be used by the Client without REACH's prior written consent.
4. confidentiality
   
   1. Neither party will disclose the other party's Confidential Information to any person, or use such Confidential Information for any purpose other than to perform this Agreement. Notwithstanding the foregoing, either party may disclose any of the other party's Confidential Information with the other party's prior written consent or if and to the extent disclosure is required by law (provided that the disclosing party gives the other party notice of the requirement as soon as practicable before such disclosure is made).
5. PRIVACY
   
   1. Each party will comply with all relevant privacy and data protection laws, including the Privacy Act 2020.
   2. Unless REACH is providing Data Services or as otherwise specified in the Booking Confirmation and/or the Statement of Work (as applicable), the Client acknowledges that REACH does not require, and the Client will not provide, any Personal Information in connection with the Agreement.
   3. Notwithstanding clause 8.2, if any materials or Client Data made available by the Client to REACH in connection with this Agreement do include Personal Information:
      1. the Client warrants that it has obtained all consents and authorisations necessary to disclose such Personal Information to REACH in connection with performance by REACH of its obligations under this Agreement;
      2. REACH will not use or disclose the Personal Information except as necessary to perform its obligations under this Agreement; and
      3. REACH will adopt security safeguards as are reasonable in the circumstances against loss, unauthorised access, use, modification, disclosure or other misuse of the Personal Information.
6. warranties, indemnities and liability
   
   1. Each party represents and warrants that it has full power, authority and legal capacity to enter into this Agreement and perform its obligations under this Agreement.
   2. REACH shall maintain:
      1. professional indemnity insurance;
      2. public liability insurance; and
      3. motor vehicle insurance,

on appropriate terms and for appropriate coverage levels and amounts with reputable insurers throughout the Term.

1. To the greatest extent permitted by law, REACH excludes all guarantees, representations, terms and warranties not expressly included in the Agreement.
2. REACH shall not be liable for any indirect or consequential losses, costs or expenses; or any loss of revenue, profits, goodwill, business or anticipated business, reputation, wasted expenditure (including, but not limited to, any production or print costs associated with products that are undelivered) or loss of or corruption to data (in each case, whether direct or indirect); arising under or in connection with the Agreement, or any of the Services.
3. Subject to clauses 9.4 and 9.6, REACH’s total 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 paid by the Client for those particular Services under the Booking Confirmation.
4. If any of the Services are defective or partly or wholly unperformed, the Client's sole and exclusive remedy shall be reperformance of the Services by REACH, at REACH's cost and expense.
5. The Client warrants that any and all product, Client Data or any and all content provided by, or on behalf of, the Client and relating to the Services (including, as applicable, advertising material, landing page content, and Client website content):
   1. is complete and accurate;
   2. is not, and does not contain, any matter that is misleading, deceptive, offensive, obscene or defamatory;
   3. is owned by the Client and/or the Client has the rights to provide it, use it, or make it available for use and distribution as part of the Services;
   4. does not infringe any other party's privacy rights or Intellectual Property Rights; and
   5. complies with all relevant laws, regulations, codes and standards, including advertising and policy guidelines, the Fair Trading Act 1986, applicable Advertising Standards Authority Codes, and applicable platform specific policies and terms.
6. The Client agrees and acknowledges that:
   1. all carriage undertaken by REACH under the Agreement will be at ‘limited carrier’s risk’ under Part 5 of the Contracts and Commercial Law Act 2017;
   2. it is acquiring the Services in trade and that accordingly the provisions of the Consumer Guarantees Act 1993 do not apply; and
   3. the commercial pricing and all other commercial terms set out in this Agreement and the Booking Confirmation and/or the Statement of Work (as applicable) have been negotiated and agreed in consideration of, and in reliance upon, the liability provisions, indemnities and the allocation of risk between the parties as expressly set out in this Agreement. Each party confirms that the limitations and exclusions of liability, indemnities and other risk allocation mechanisms in this clause 9 and elsewhere in this Agreement are an integral part of the commercial bargain between the parties.
7. The Client indemnifies REACH and its officers, employees, agents, and contractors against all liability, claims, actions, proceedings, losses, damage, costs and expenses (including all legal costs) whatsoever arising that REACH or such other persons suffer or become liable for as a result of the Client's breach of the Agreement or as a result of any allegation that any possession or use of any information, rights or materials supplied by the Client (including Client Data and/or Design Materials) under the Agreement infringes any third party's Intellectual Property Rights or the Client is otherwise in breach of any of the warranties given at clause 9.7.

1. force majeure
   
   1. A party shall not be liable for any breach of the Agreement to the extent that such breach is due to a Force Majeure event, provided that the party uses reasonable endeavours to mitigate the effect of the Force Majeure event and resumes full performance as soon as reasonably practicable.
2. Disputes
   
   1. If any dispute arises between the parties concerning the Agreement (Dispute), the parties will endeavour in the first instance to resolve the Dispute between themselves, and will both act in good faith.
   2. 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 costs of the mediation, excluding the parties’ own legal and preparation costs, will be shared equally.
   3. Subject to clause 11.4, 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.
   4. This clause 11 does not limit the parties' right to seek urgent interlocutory relief.
   5. 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.
3. Capacity of Client
   
   1. Where the Client enters into the Booking Confirmation and/or the Statement of Work (as applicable) as agent and on behalf of Client's customer or client, the Client represents and warrants that it has all necessary authorisations to enter into the Booking Confirmation and/or the Statement of Work (as applicable) on its client's behalf and to bind its client to these Terms and Conditions and the Booking Confirmation and/or the Statement of Work (as applicable).
   2. Where the Client is entering into this Agreement in its own capacity, it acknowledges and agrees that it will be responsible for all obligations in these Terms and Conditions and the Booking Confirmation and/or the Statement of Work (as applicable) described as applying to 'the Client', regardless of whether it is acting on behalf of a customer or client.
   3. If the Client notifies REACH that it wishes REACH to deal with or take instructions from an Agency acting on the Client's behalf, the Client represents and warrants that such Agency is authorised to act on the Client's behalf and that REACH is entitled to rely on any statements made or representations given by the Agency on the Client's behalf, as if such statements or representations were given by the Client.
4. general
   
   1. The Agreement will be governed by, and construed in accordance with, the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts.
   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 the Agreement.
   3. Nothing in the Agreement 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 the Agreement.
   4. If either party fails to exercise, or delays exercising any right it has under the Agreement, that failure or delay will not constitute a waiver of that right and will not prevent that party exercising that right in the future.
   5. Except as otherwise expressly provided in the Agreement, the Agreement constitutes the entire agreement, understanding and arrangement (express and implied) between the parties relating to the subject matter of the Agreement and supersedes and cancels any previous Agreement, understanding and arrangement relating thereto, whether written or oral.
   6. If any provision of the Agreement is or becomes unenforceable, illegal or invalid for any reason, it will be deemed to be severed from the Agreement without affecting the validity of the remainder of the Agreement and will not affect the enforceability, legality, validity or application of any other provision of the Agreement.
   7. REACH may vary these Terms and Conditions at any time by updating the REACH website (New Terms). By entering into new Booking Confirmations and/or Statements of Work (as applicable) with REACH, the Client is deemed to have accepted the New Terms.
   8. Each notice under the Agreement shall be in writing and delivered personally or sent by post or email. A notice is deemed to be received: (a) if delivered personally or by email, when delivered; (b) if posted, five Business Days after posting; or (c) if sent by email, on the next Business Day, unless the sender has been notified of a delivery failure.
   9. REACH may assign or transfer any of its rights or obligations under the Agreement without the prior written consent of the Client. The Client may not assign or transfer any of part of the Agreement without the written consent of REACH (consent not to be unreasonably withheld). Change in the effective control of a party is deemed to be an assignment.
   10. 13.10.By signing the Booking Confirmation and/or Statement of Work (as applicable), each party consents to the Agreement (or any counterpart of it) being executed in electronic form, being electronically signed (and, where witnessing of a signature is required, the witness's signature being electronically signed), and being delivered in electronic form by means of an electronic communication, all in accordance with sections 222 to 227 of the Contract and Commercial Law Act 2017.

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