Terms of Service

We are The Creatives

That’s “us” or “we” inside these terms.  Thank you for supporting our small business! We’re looking forward to creating some rad stuff together. 

These Terms of Service (“Terms”) apply to all work and services carried out by Us for You. You are the client who has accepted a Quote, Proposal or has subscribed to a Subscription Plan to work with Us. If we agree to anything different to what we have set out in these Terms of Service, we will confirm this in writing via email.

ACCEPTANCE

You can engage us in a number of ways. You will have been deemed to accept these Terms when you:

  • Click any Buy Now option for a digital product
  • Accept a quote from our invoicing software by clicking accept
  • Confirming a commission for work via email
  • Payment of a Deposit to us
  • Any part-payment for any Services to us
  • Acceptance or signature on a subscription plan document or online form

Service + Fee Types

We offer these service types:

DIGITAL
MARKETING

This includes:

  • Search Engine Optimisation (SEO)
  • Search Engine Advertising
  • Display Advertising
  • Social Media Advertising
  • Social Media Management (SMM)
  • Strategy, Creative and Analytics
  • Copywriting

WEBSITE
DEVELOPMENT

This includes:

  • Development of websites
  • Maintenance of websites
  • Third Party Software integrations into websites
  • Support & Maintenance Packages
  • Hosting of websites
  • Domain Name Services

GRAPHIC DESIGN

This includes:

  • Design
  • Illustration
  • Photographic shoot co-ordination

We offer three fee types for our Services:

CUSTOM PROJECTS

A project that is designed or delivered to your specific requirements and that has not been delivered by us previously. 

  • Features: These take longer, have more complexity. 
  • Pricing: These services are subject to Cost Estimates only for an indicative number of tasks and deliverables based on an Hourly Rate. These are always invoiced for the actual number of hours taken to perform the agreed deliverables. 

FIXED PRICE PACKAGES

A project that is designed and delivered to a set range of options that we have published for your selection. 

  • Features: These have been performed by us previously and are offered on the basis that a template or existing process is applied to enable delivery of a fixed number of tasks to achieve your deliverables. 
  • Pricing: These services are subject to a fixed price quote flat fee for a specified number of tasks and deliverables.

SUBSCRIPTION PLANS

An ongoing delivery of services that we guarantee will be delivered within a 30-day period at a fixed monthly price for a fixed range of tasks or outcomes (as published in our services description for the relevant plan). 

  • Features: These plans include tasks or services that have been performed by us previously and are offered on the basis that a template or existing process is applied to enable delivery of a fixed number of tasks to achieve a guaranteed outcome.
  • Pricing: These services are subject to a fixed monthly fee for an agreed period of time and for a fixed set of tasks or services (as published in our latest services list).

 

These plans exclude any Custom Projects and Fixed Price Package services and any Campaign Services. 

GLOSSARY

AGENCY MATERIALS

This is material that is owned by us as a creative agency and is not released to you. This includes, but is not limited to, the following:

  • AI files (these are the special graphic design files for logos and custom-created graphic content)
  • Our templates (for example: for campaigns, websites, workshops and training)

CAMPAIGN SERVICE

This means a planned marketing campaign that will be delivered over a period of successive days with a clear date for the start of the campaign, metrics on how the campaign will be delivered and when the campaign will end. 

CAMPAIGN LAUNCH

This means the event of publishing a digital or print marketing set of content to the agreed audience and in the agreed final formats that you have approved.  

CLIENT EXPENSES

This means the costs, fees and any ongoing third-party hosting costs that you are required to pay for directly in connection with the Services. 

This includes, but is not limited to, the following:

  • Custom photography
  • Trademark search and registration fees (if applicable)
  • URL domain purchase
  • Sourcing stock imagery
  • Copywriting of content (wording)
  • Website subscription/hosting costs
  • Email subscription costs
  • Google my Business Set Up
  • Mailing List Software Subscription
  • Integration software costs (e.g. Zapier)
  • Social Media content planner subscription costs (e.g. Planoly, Later, Hootsuite)
  • Google Ad costs
  • Facebook Ad Costs
  • Print advertorial costs
  • Digital advertorial costs – other (e.g. to advertise in a closed facebook group, via a chamber of commerce or other online entity or platform) 

CLIENT MATERIALS

This is a set of materials that you are required to supply to us to enable us to perform a service for you.

They include (but are not limited to) the following:

  • Stock or custom photographic images
  • Logo in PDF or io format
  • Written copy (wording to be added to a website, newsletter, blog etc.)
  • Video files in MP4 format (e.g. to load onto a website or add to a marketing email)
  • Social Media Tiles (e.g. small PNG image files to add to a social media account)
  • Digital Assets (e.g. word or PDF documents that are to be added to a website, an e-commerce store or to a marketing email)
  • Audio Files (e.g. to be added to a podcast link to a website or to a marketing email)
  • Any other specific client material we specify in a list to you for a specific service. 

COPYRIGHT

This means the right of ownership of the material or idea. For example, the ownership of a logo, a photographic image or a template.

COST ESTIMATE

This is where we make some assumptions about the cost for a Custom Project to give a client an indicative cost. These are assembled on some assumptions such as:

  • the information you supply to us
  • your specific requirements
  • our experience of performing similar tasks or achieving service outcomes.


These are not fixed prices and always subject to change as your custom requirements continue to be discussed and developed during a Custom Project.

DOMAIN

This is the address of a website that is owned by a specific individual or organisation. 

INTELLECTUAL PROPERTY RIGHTS

These are rights that a person or organisation has in any trade marks, patents, designs, service marks, trade names, copyrights, know how, company names, trade secrets, domain names, internet IP or URL addresses, rights in confidential information, and any other intellectual property rights, whether registered or unregistered, and including all applications. 

PLAN BENEFIT

This means a specific task or service type offered within a Subscription Plan (as published and updated from time to time).

PROPOSAL

This is a document in which we list a range of scope and deliverables for a Custom Project and offer our Cost Estimate for your acceptance. 

PROJECT DELIVERABLES

These are the final project materials released in the agreed file format or output format described in the services scope following the acceptance by you of the Working Concepts. 

STAGNANT PROJECT

This is where you have failed to respond to our requests for input on a Working Concept, failed to complete the uploading of any Client Materials or you have stopped communicating with us to the point that we cannot continue to perform the Services for a period of 2 weeks or more. 

TURNAROUND TIME

This is the time it takes us to deliver the next draft or final release of a design or services output. 

WORKING CONCEPT

This is a draft of a design or campaign output that we issue to you for feedback, approval or specific input. This is not the final design or campaign and is subject to final agency or client changes. 

DELIVERY OF OUR SERVICES

1. Strategy Sessions
These may be subject to a fee at our sole discretion. We will inform you in advance if a strategy session is subject to a fee. 

2. Services may not be merged 
You may not, for example, select a fixed price package and later request to convert this to be a service to be performed under a subscription plan. However, you may add on Custom Projects at any time subject to acceptance of any applicable Proposal. 

DEPOSITS

3. Deposit for Services
A deposit is required for all service types except Subscription Plans. No work on the Services will commence until the Deposit has been paid and we will not be responsible for any time delays caused if you do not secure our services with a Deposit and your timeline slips. 

4. When deposits are non-refundable
The Deposit will be non-refundable in the following circumstances:

  • where you have selected a Start Date for the services to commence and you have requested more than one postponement and we have held capacity to get started on your Services for 8 weeks or more; or
  • the Services have been commenced and subsequently terminated for any of the reasons set out in the Termination section below. 

INVOICING

5. Invoicing specific to service type
The way we charge for our services depends on the fee type you have selected from the list above.  This table sets out when you can expect to be invoiced for the fees at each stage of the Services for the type of service you have purchased from us. 

FIXED PRICE PACKAGE

CUSTOM WORK

SUBSCRIPTION PLAN

Deposit Invoice Issued at acceptance to secure your booking. 

Deposit Invoice Issued at acceptance to secure your booking.

Initial monthly fee or upfront annual fee invoice (as applicable) Issued at commencement of subscription to get your plan started. 

Stage Invoice issued at specific stages of your fixed price service project.

We notify you of the specific stages of payment in advance.

Stage Invoice issued at specific stages of your custom project.

We notify you of the specific stages of payment in advance.

For monthly Subscription Plans only the fixed monthly fee will be debited from your registered payment card or an invoice issued at start of the month for payment on your monthly plan date.

Final Balance Invoice issued prior to release of Project Deliverables.

For fixed fee, agreed Client Expenses and any agreed cost overruns calculated at published Hourly Rate. 

Final Balance Invoice issued prior to release of deliverables.

For cost estimates, you are invoiced for actual time incurred to complete deliverables calculated at published Hourly Rate plus agreed Client Expenses.

Not Applicable

CLIENT MATERIALS

6. Client must submit Client Materials
We will issue you with a list of required input for the Client Materials. It is your responsibility to upload the required client materials into the specific location we advise you of. 

7. Start date is contingent on Client Materials
You accept and acknowledge that we will not be obliged to commence work and agree a Start Date until the Client Materials have been uploaded in their entirety or deemed by us to be sufficient to enable us to commence the Services. 

8. No liability for delay to Start Date for non-supply of Client Materials
We accept no liability for any delayed commencement date for the services in the event you have not uploaded the required materials into the nominated shared file area, in the specific format or in the required timeframe to enable us to utilise such materials for the performance of the services.  

START DATES

9. Booking System
We operate a booking system to agree a start date to commence the services with you.  

10. No guarantee of Start Dates
We make no guarantee that a specific or preferred start date will be available. 

11. Client must select a Start Date
You agree and acknowledge that you will select a Start Date that commences within 60 days of submission of your Client Materials Kit. 

CLIENT REVIEW OF WORKING CONCEPTS

12. Client Reviews
Your Proposal, Subscription Plan or Fixed Price Package will specify the number of client review opportunities of a Working Concept. We reserve the right to decline any additional client review input or feedback after this maximum number has been reached.

13. Client Response Times
You agree to respond to us within 3 working days of us seeking a request for your feedback on a Working Concept. 

14. Deemed Acceptance
In the event we have not received any response from you at the expiry of the 3 working day period, we will deem that you have accepted the Working Concept and have no further feedback or input. In this event, no further revisions or late edits will be accepted (except at our sole discretion). 

TURNAROUND TIMES

15. No guarantee of turnaround times
Turnaround Times stated in our services guide for a project to be delivered under a Subscription Plan or a Fixed Price Package are not guaranteed.

16. Turnaround times for Subscription Plans and Fixed Price Packages
Any Turnaround Time is an estimate only that is based on our team’s prior experience of the projects we offer in our Subscription Plans or under a Fixed Price Package.  Turnaround Times are subject to change depending on several variables, including the complexity of a project and your timing to respond to our requests for your input, information and supply of assets into the Client Materials drive area.

17. Turnaround times for Custom Projects
Custom projects are subject to longer Turnaround Times than any project performed under a Subscription Plan or Fixed Price Package and fall outside of any published Turnaround Time stated on our website, promotional materials or services descriptions relating to the Subscription Plans or Fixed Price Packages.  

PROJECT DELIVERABLES

18. Final balance payable to release Project Deliverables
Where you have purchased our services on a Fixed Price Package or under an accepted Proposal, we will release or go-live or launch (as context requires) the Project Deliverables only upon receipt of the final balance of the applicable Fee (unless otherwise agreed with you in writing).

19. Subscription Plan and Project Deliverables release
Project Deliverables purchased under a Subscription Plan will be released at the completion of Plan Benefit task or service. 

POST RELEASE SUPPORT

20. Post release support may be phased
Instruction videos, training and any post-release support will be supplied as set out in our agreed scope and price proposal and by their nature may be released on a staged basis following release of the Project Deliverables. 

21. Additional post release support is chargeable
Any additional post support services, repeat training or ad hoc support not listed as included in a Fixed Price Package, Custom Project or Subscription Plan will be charged at our published Hourly Rate.

SUBSCRIPTION PLANS

22. Subscription Plans have additional terms of service
These terms apply to the Subscription Plan services only. 

23. Plan commencement fee
For monthly Subscription Plans, the first monthly fee is payable in advance to commence the Plan Benefits. 

24. Advance payment for Subscription Plan fees
Where we offer you a one-time upfront Subscription Plan fee, this is payable in advance prior to delivery or performance of any Plan Benefits. 

25. No transfer of a Subscription
Plan You may not transfer or assign a Subscription Plan to another person or business or brand within your organisation.

26. No refund for unused
Subscription Plan Benefits You are not entitled to any refund of the Subscription Fees where they have been properly applied.   This includes, but is not limited to, where: 
a) you do not use all or any of your Plan Benefits during the Subscription Period; or 
b) you select to use certain Plan Benefits during your Subscription Period and later change your mind about your selection.  

27. No rollover of unused Subscription Plan Benefits
Where you fail to take advantage of a fixed number of Plan Benefits offered in a single month, that right will lapse at the end of that calendar month. You will not be entitled to roll over the Plan Benefit to the following or any later months. 

28. Plan Benefit limitations
Where we agree to deliver a set number of Plan Benefits within your Subscription Plan, we will apply an assessment of reasonableness to what is meant by ‘one’ plan benefit.  

29. Plan Benefit Exclusions
Custom Projects and Fixed Price Package services are excluded from a Subscription Plan and shall not be redeemable as a Plan Benefit. 

30. Plan Benefit Changes
We reserve the right to remove, alter or update Plan Benefits provided we supply 30 calendar days’ notice to you.

31. Cancellation of your Subscription Plan
You may cancel your Subscription Plan at any time by emailing us with at least one full calendar months’ notice. 

32. No refunds for unutilised Plan Benefits up to the date of cancellation are provided, and where we have agreed that your Subscription Plan fee may be paid in instalments, you remain liable to pay the balance of your Subscription Plan fees as yet unpaid up to the end of the calendar month’s notice period.  

33. Subscription Plan Renewal
Your Subscription Plan will not auto-renew. We will get in touch prior to the final month of your plan to enquire if you wish to renew. Any renewal will be on the current, published Subscription Plan price as at the date of renewal.

34. Suspension of Plan Benefits
If your Subscription Plan fee is not paid when it becomes due or a recurring payment method is rejected or fails, we reserve our rights to suspend your Plan Benefits until you have paid the plan fees up to date.

VARIATIONS

35. No change to Service Type after Start Date
You may not vary the Service Type you have selected after the Start Date. If a new Service Type is to be selected, this must be purchased as a stand-alone and new engagement with us.  

36. Project Deliverables deadlines
You must request and obtain our prior written approval before, or changing any milestones or events required to achieve completion of the Services. We cannot guarantee that we can meet new timeframes requested after the Start Date. 

37. Additional costs for scope changes
If you request a variation to the agreed scope documented in your accepted Proposal, we will issue an estimate of the additional fees likely to be incurred as a result of the variation. 

38. Scope changes must be approved in writing
We will not proceed with a scope change to the Services unless and until the variation has been confirmed and accepted by you, and has been documented by us in writing. 

39. Variations to Custom Projects or Fixed Price Packages
The following events or situations are deemed to be Variations (the list is not exhaustive):
a) introduction of additional requirements not discussed during the onboarding process  (including but not limited to) branding deliverables, introduction of video imagery, advertorial text, advertorial design and the focus of any digital marketing campaign;
b) additional service management time caused by unplanned delays in obtaining approval or where the Client Materials drive area does not contain the appropriate file types
c) any additional resource or time that exceeds the reasonable estimate for a Fixed Price Package or Subscription Plan task due to rescheduling of services by you;
d) where you nominate additional stakeholders to be included in any Client Review process that differ from those stated in our onboarding process and this causes additional communications relating to Working Concepts or release of Project Deliverables or Campaign Launches

40. Variations itemised separately Variations will be invoiced separately to you on an ad hoc basis, charged at current published Hourly Rates.

41. Non-Permitted Variations For certain services, we cannot accept certain types of Variations. You agree that the following will not constitute a Variation nor will be accepted after the Start Date:
a) changes to the approved list of key phrases or words for search engine optimisation services
b) changes to logo, brand colours or design after a Campaign Launch has commenced
c) changes to email sequence timings after a Campaign Launch has commenced

INTELLECTUAL PROPERTY

42. Existing Intellectual Property ownership
We shall each continue to own any and all proprietary information in existing Intellectual Property that existed prior to commencing the Services (Existing IP). We acknowledge that we have no rights to your Existing IP and may not use it except to complete the Services. 

43. Services IP
The creation of any new template designs, website templates, campaign plans, digital marketing frameworks, ad text, ad targeting, ad creative, ad accounts, raw and editable files that we create either before the Start Date or during the performance of the Services (Service IP) shall be exclusively owned by us and we grant you an irrevocable, exclusive worldwide licence to use this Service IP for the purposes of the Project Deliverables only. 

44. Project IP ownership
The newly created intellectual property in the Project Deliverables (Project IP) related to all logos, drawings, photographs, designs, artwork, proofs and web sites prepared by us for the Services created with the Existing IP upon completion of the Services, shall be owned by you with the exception of the Services IP. 

45. Your warranties
You warrant that any materials or content you provide to us, or that are provided to us on your behalf, will not breach any rights (including Intellectual Property Rights or moral rights as that term is defined in any copyright laws) of any third party; or compromise the security or operation of our computer systems, through a virus or otherwise. 

46. Licence to us to use Project IP
We reserve all rights to use all logos, drawings, photographs, designs, artwork, proofs and edits developed as Project IP for our own promotional purposes and will attribute this to being an outcome of the Services delivered to you.

Restrictions relating to Services IP
You must not, without our prior written consent:
a) adapt, create derivative works from or merge the template or other Service IP;
b) use the Service IP for any purpose other than the specific purpose for which we have provided it;
c) reverse engineer, disassemble or decompile the Service IP;
d) distribute, lend, resell, transfer, assign or sublicence the Service or other Service IP, or allow any other person to use it except in the course of visiting the Service; and
e) remove or attempt to remove any proprietary or copyright notices or any labels on the Project Deliverables or other Service IP.

STAGNANT PROJECTS

48. Re-commencement of a Stagnant Project
If a project becomes a Stagnant Project and we agree to re-commence it , we reserve the right to apply an Hourly Rate for the required tine to pick up the job to recap where the job was left and re-brief the team.

49. Re-pricing of a Stagnant Project
Any recommencement of a Stagnant Project that was subject to a Fixed Rate Package or a Cost Estimate may be subject to the issue of a revised Proposal or any updated Fixed Rate Package fee published as at the date of the recommencement at our sole discretion. We will advise you of this if we consider this is required. 

TERMINATION OF OUR SERVICES

50. Termination of Fixed Price Packages or Custom Project services
You may terminate the Services on 30 calendar days’ notice to us. 

51. Termination of Subscription Plans
This is subject to the Subscription Plan termination and cancellation terms set out in these terms of service. 

52. Deemed Termination
Fixed Price Packages or Custom Project services will be deemed to have been terminated by you in the following circumstances:
a) where you fail to select a Start Date within 60 days of submission of your Client Materials Kit; or
b) where a project has become a Stagnant Project and we cannot gain any feedback from you after 8 weeks; or
c) where you have selected a Start Date for the services to commence and you have requested more than one postponement which has delayed the Start Date by more than 60 days. 

53. Fees payable on Termination
We shall be entitled to issue you with a final invoice for the proportion of work on your services performed up to the date of cancellation and any work to handover or close out your services together with any Client Expenses incurred. 

WARRANTIES

54. Our warranties to you
We warrant that we will perform our services to all applicable industry standards and codes of ethics where applicable. 

55. Exclusions to warranties
We do not warrant the following:
a) that your use of the designs, materials or content produced by us for you in the course of the Service will not infringe any third party’s Intellectual Property Rights or any person’s moral rights; and/or
b) that we have performed any searches of any third-party intellectual property register (including but not limited to the Intellectual Property Office of New Zealand) to check for any infringement of any third-party trademarks, service marks, copyright, registered designs, trade names, domain names, symbols and logos (Third Party IP); and/or
c) that we have performed any searches using any search engine or other function to assess if the logo, word mark or design supplied as part of the Services has been used elsewhere in New Zealand or world-wide as Third Party IP; and/or
d) that we have performed any search of any other kind relating to the use of your business name, words or description requested to be included in any design supplied e under these Services and/or
e) the likelihood of success of marketing or promotional activity undertaken pursuant to the agreement

56. Your warranties to us You acknowledge the following to us:
a) that it is your responsibility to engage any appropriate trademark or intellectual property attorney or perform your own searches to satisfy yourself that there will be no Third Party IP infringement; and
b) that search engine results and ad position will vary for each of the search engines and social media platforms; and
c) that the algorithms of each search engine and social media platform may change unexpectedly from time to time and this is out of our control.

LIABILITY

57. Exclusions to our liability
To the fullest extent permissible by law, we are not liable (whether in contract or tort) for:
a) faults or defects in any services or goods provided by third parties in connection with the Services; and/or
b) any indirect, special or consequential loss (including loss or corruption of data, loss of profits, revenue, goodwill, anticipated savings and business interruption) however arising, whether or not we knew of the possibility of such loss and whether or not such loss was foreseeable; and/or
c) the infringement of the Intellectual Property rights of any Third Party IP infringement arising from any of the material or content published during the performance of the Services.

58. Remedies for breach
To the fullest extent permitted by law, our liability for a breach of these terms of service is limited to: 
a) in the case of the provision of services the supplying of the services again; and
b) in relation to hard copy print or design goods (Design Goods), the replacement of the Design Goods or the supply of equivalent Design Goods. 

59. Limit of our liability
Our total aggregate liability for all claims relating to the agreement is limited to the price for the Services payable under this agreement.

60. Reduction of liability
Either party’s liability for any claim relating to the agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.

INDEMNITY

61. You indemnify us
You indemnify us and hold us harmless in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:
a) any breach of this agreement;
b) your negligent acts or omissions; or
c) your use of the Services, including any third-party claims (including for Third Party IP infringement) made in connection with or arising out of your use of the Service, other than use in accordance with this agreement.

INVOICE DISPUTES AND OVERDUE CHARGES

62. Time and method for payment
All amounts specified in an invoice will require payment on the due date (Amounts Owing). We will issue invoices to you by email. You may pay by any of the methods specified on the invoice. 

63. Disputes on invoices
We must be notified in writing within 5 calendar days from the date you first received the invoice of any dispute. You agree to identify the specific cause of the disagreement and pay when due that portion of the invoice that is not in dispute.

64. No set off or deduction
Payment of Amounts Owing which are due and payable must be made without set-off or deduction of any kind. You also agree that you will not be entitled to withhold payment in respect of any undisputed amount. 

65. Non Payment of Amounts Owing
If you do not pay an Amount Owing by the due date or any later date we have agreed in writing this becomes an Overdue Amount Owing. After a period of 7 calendar days, we shall have the right to apply late payment interest at a rate of 8% above the standard BNZ bank rate at the time. This shall be calculated daily and compound monthly at that rate if we elect to do this. This applies before and after any judgment (if applicable).   

66. Debt collection or recovery costs
If an Overdue Amount Owing remains unpaid for 14 days or more, we reserve our rights to engage the services of a debt collection agency or solicitor to take proceedings to recover the Overdue Amount Owing. You will be liable for the costs incurred by us in the collection of any unpaid amounts including but not limited to legal costs, debt collection fees and internal administration fees.  

67. Administration Fees
In the event We are obliged to perform any additional actions to recover any monies owed by You, we reserve the right to apply reasonable administrative fees for phone calls, texts, emails and in person visits to follow up and recover any Overdue Amount Owing in addition to any costs or expenses stated in the clause above.

CONFIDENTIALITY

68. All information kept in confidence
We will hold all information concerning you, your affairs and any planned campaigns in the strictest confidence. This obligation commences from the time we hold any discovery call and continues regardless of whether you decide to engage our services or not. 

69. Confidential information shared for Services only
Confidential information concerning you will as far as practicable be made available only to those within our agency who are providing services for you or third-parties that we need to inform on a need to know basis (for example printers, external copywriters, independent contractors we engage to assist with your campaign).

ALTERATIONS OR UPDATES TO THESE TERMS OF SERVICE

70. We can alter and update these Terms with 30 days’ notice to you. This includes price increases for our Fixed Price Services and our Hourly Rate but does not apply to our Subscription Plans which can only be altered 30 days prior to their renewal date. 

ALTERATIONS OR UPDATES TO THESE TERMS OF SERVICE

71. Dealing with disputes
The parties agree that any dispute, controversy or claim arising between the parties out of or in connection with this agreement, or in relation to any question regarding its existence, breach, termination or invalidity (in each case, a dispute) will only be resolved by following the process described in this clause.

72. Resolve between contact persons first and senior management second
Where a dispute arises, either party may give notice to the other and request a formal meeting with a view to resolving it (a Dispute Notice).  The party who is the recipient of a Dispute Notice (the Recipient) will, within 48 hours of receiving the Dispute Notice, notify the other party to confirm receipt of the Dispute Notice, and both parties will promptly attempt to resolve the dispute by consultation at the lowest practicable level of escalation first and then between senior management second.  

73. Parties can use mediation
If the dispute is not resolved within 10 business days (or any longer period agreed by the parties) of receipt of the Dispute Notice by the Recipient, either party may submit the dispute to be resolved by mediation by giving notice to the other party.  This notice must be in writing by email or letter only and must be addressed to the party. 

74. Location of mediation
The mediation will be conducted before a single mediator, on the terms of the Resolution Institute Standard Mediation Agreement (NZ version).  The mediator will be agreed between the parties or, failing agreement, within 5 business days of receipt of a Dispute Notice, appointed by the Chair for the time being of Resolution Institute or his/her nominee. 

75. Services to continue to be performed
Except to the extent this agreement expressly permits otherwise and in the case of non-payment of any fees that are due and payable, we will continue to perform our obligations under these terms of service for the applicable Services, notwithstanding any dispute. 

76. Interlocutory relief permitted at any time
Nothing in this agreement will prevent either party from seeking urgent interim relief from a court of competent jurisdiction.

77. Communications relating to a dispute
All dispute communications must be in writing. Any notice, consent, permission, approval, agreement, instruction, variation, authorisation, request, report or other communication given by a party for the purposes of this agreement (referred to in this agreement as communication) will be of no effect unless given in writing.  To avoid doubt, the term “in writing” does not include text message or other internet or cell phone-based messenger, chat, bot or other services.

78. Email communication
The email addresses stated in the Statement of Services must be used.  Until a change of email address is so notified, the address of each party is as set out in the relevant Statement of Services is applicable.  In the case of email, it is considered to have been delivered on the first business day after sending, unless before then the sender’s email server receives notification that the email has not been delivered 

79. How to deliver a Dispute Notice
An email notification is required to be issued to the contact person stated in the Statement of Services outlining the dispute (if discussed by telephone or verbally a follow up email confirming the dispute must be sent).  A Dispute Notice may be also delivered to the recipient by registered post but a copy of the Dispute Notice must also be sent by email to the recipient.  A Dispute Notice will be deemed to have been received by the recipient: (a) in the case of delivery by registered post, on the date that signature of receipt is recorded; (b) in the case of email, on the first business day after sending, unless before then the sender’s email server receives notification that the email has not been delivered to the recipient.

80. When notice deemed to be received 
If a communication is received or deemed to have been received after 5pm on a business day at the place to which it is sent, or on a day which is not a business day in that place, that communication will be deemed not to have been received until the next business day in that place.

GENERAL

81. No assignment by client
You may not assign or transfer any of your rights or obligations under any agreement for Services without our prior written consent. 

82. Consumer Guarantees Act 1993
Where you are acquiring the Services for the purposes of a business or trade, and the provisions of the Consumer Guarantees Act 1993 (CGA) are excluded accordingly.  Otherwise, the CGA will continue to apply. 

83. Invalidity of part of agreement
If any part of these terms of service are  held to be illegal or invalid, such illegality or invalidity will not affect the enforceability of any other part of this agreement.  

84. Law and jurisdiction
Our Services are governed by New Zealand law and the New Zealand courts have exclusive jurisdiction in respect of any dispute or difference arising in connection with this agreement, and all amounts payable under this agreement will (unless specified otherwise) be payable in New Zealand currency.