Terms of Trade – B M MEDIA Limited
INTRODUCTION
B M Media reserves the right to change its terms and conditions from time to time without prior written notice being provided. Any amendment to the terms and conditions shall become effective on any amendments to B M Media’s Terms & Conditions being posted on its website at www.bmmedia.co.nz
DEFINITIONS
B M Media: means B M Media Limited, its successors and assigns.
Client: “Client” refers to the company or individual providing instructions to B M Media. The term “Client” also includes prospective clients for whom B M Media produces outputs.
Confidential Information: “Confidential Information” means information (whether oral, in writing or in any other form) belonging to a party which relates to that party’s Intellectual Property Rights or financial affairs, and any other information belonging to that party of commercial value to that party which, by its nature, is or could reasonably be expected to be regarded as confidential.
Confidential information does not include information that:
a) the Recipient can demonstrate was known to it prior to the date of disclosure;
b) is lawfully and independently obtained from a third party without restriction as to its disclosure or use;
c) is independently deduced, discovered or developed by the Recipient;
d) is or becomes (through no fault of the Recipient or its officers, employees, contractors or professional advisers, and their respective employees and officers) public knowledge;
e) the Recipient is required to disclose by law or by order of any court of competent jurisdiction or of any regulatory authority whose requirements are binding on the Recipient; or
f) is released from its confidential status by the Discloser.
Intellectual Property Rights: “Intellectual Property Rights” include all present and future rights in relation to copyright, trade marks, designs, patents, trade, business or company names, trade secrets, confidential or other proprietary rights, or any rights to registration of such rights, whether created before or after the date of these Terms & Conditions and whether existing in New Zealand or otherwise.
PARTIES, ASSIGNMENT, APPLICABILITY, VARIATION & WAIVERS
1. Parties
1.1 These Terms & Conditions apply to all instructions provided by the client to B M Media and all work carried out by B M Media for a client.
1.2 If a client consists of more than one person, these Terms & Conditions binds them jointly and each of them severally.
1.3 If a client is a trustee and/or company director that trustee and/or company director are bound by these terms and conditions as if personally liable.
1.4 These Terms & Conditions apply to all instructions and/or work except to the extent agreed to in writing by a director of B M Media.
2. Applicability
2.1 Any terms and conditions proposed by the client inconsistent with these Terms & Conditions are to be of no effect unless expressly agreed to in writing and signed by a director of B M Media.
2.2 In the event of any inconsistency between the Quotation, these Terms & Conditions, and any schedules and/or attachments, these Terms & Conditions in conjunction with the Quotation shall prevail.
2.3 In the event that a client asks B M Media to commence work without Quotation, these Terms & Conditions shall prevail.
3. Severance
3.1 If any term of these Terms & Conditions is or becomes invalid or unenforceable, that term will be severed or modified without affecting the other terms of these Terms & Conditions. All other terms of these Terms & Conditions will continue to be valid and enforceable.
4. Waivers
4.1 No rights under these Terms & Conditions accruing to B M Media will be deemed to be waived unless such waiver is agreed to in writing and signed by a director of B M Media.
4.2 A waiver by B M Media pursuant to the above clause will not prejudice its rights regarding any subsequent breach of these Terms & Conditions by the Client.
4.3 No failure by B M Media to enforce, and no forbearance, delay or indulgence granted by B M Media to the Client in respect of any clause of these Terms & Conditions will be construed as a waiver of B M Media rights under these Terms & Conditions.
4.4 In addition, no single or partial exercise by B M Media of any right, remedy or power under these Terms & Conditions shall preclude any other or further exercise by B M Media of that right, remedy or power.
OFFER & ACCEPTANCE, COMMENCEMENT & COMPLETION
5. Offer
5.1 The terms of any offer made by B M Media can be varied at the sole discretion of B M Media up until the work to be carried out is commenced and can in any event be further varied in the event of any circumstance arising that was unforeseen or which increases the cost to B M Media of carrying out such work (whether of the client’s making, that of a third party and/or otherwise).
6. Acceptance
6.1 The Client’s acceptance of B M Media offer, whether by means of email, purchase order, letter of intent, verbal or any other method of acceptance, will constitute the Client’s acceptance of B M Media offer and these Terms & Conditions.
6.2 By providing instructions to B M Media, the Client acknowledges that it has read and understands these Terms & Conditions and agrees that it is bound by the obligations created by these Terms & Conditions.
RIGHTS & RESPONSIBILITIES
7. Inputs
7.1 Rights & Responsibilities of B M Media:
7.1.1 Reasonably Timely: B M Media will use its best endeavours to provide the Services to the Client:
(a) In a reasonably timely manner.
(b) In the period between the commencement and completion dates, where a written confirmation of agreement specifies these dates.
7.1.2 Flexible & Supported: B M Media may:
(a) Provide the Services to the Client during such hours and on such days as B M Media considers necessary to complete the Services.
(b) Engage subcontractors to assist in the provision of the Services pursuant to these Terms & Conditions.
7.2 Rights & Responsibilities of the Client:
7.2.1 Duty to Co-operate: The Client is responsible for:
(a) Delivering the required documents and information and other inputs as agreed upon.
(b) Ensuring the above inputs are useable, i.e. in the format and quality specified by B M Media.
(c) Ensuring that B M Media has full and safe access to the Client’s premises and any necessary materials and information that is reasonably required to enable B M Media to comply with its obligations under these Terms & Conditions.
(d) Working with B M Media to take all reasonable steps to co-ordinate activities, in order to manage the potential impact on commercial activities of both parties, in the performance of these Terms & Conditions.
7.2.2 If performance by B M Media of this agreement impacts on the Client’s commercial operations (or vice versa), B M Media and the Client will each take all reasonable steps to co-ordinate activities so that such impacts are minimised provided that B M Media shall have no liability and/or responsibility for any losses (whether direct and/or indirect) occasioned to the client as a result of any delay (arising from any cause whether the fault of B M Media, the Client and/or otherwise) in carrying out the instructions.
8. Outputs
8.1 Rights & Responsibilities of B M Media:
8.1.1 Rights of Ownership: B M Media retains all rights of ownership in and any intellectual property rights arising out of any material prepared by it such as concepts, designs, files, final drawings, ideas, improvements, inventions, know how, layouts, novel ideas, plans, procedures, processes, samples, systems, etc.
8.1.2 The provision of originals and/or copies of such material does not constitute an assignment of any interest in the material and/or any intellectual property right to the Client unless specifically agreed to in writing by B M Media and signed by a director of B M Media.
8.1.3 B M Media shall notwithstanding the terms of any licensing arrangement with the Client retain all rights to use any material for its own purposes without the prior consent of the Client.
8.1.4 B M Media is entitled to show the name and/or logo of the Client and the services rendered to it, and/or refer to the Client in relation to the services rendered to it, in the press and B M Media advertising contracts, including B M Media website and the Client consents to the use of its name and logo in this manner and to the extent applicable waives any right under the Privacy Act 1993 to the display of the Client’s name and/or logo.
8.1.5 B M Media shall be entitled to be named as the author on all publicity aids and in all advertising campaigns of the Client.
8.1.6 Proposal Concepts & Presentation Materials: If following a presentation the Client does not proceed with providing an instruction to B M Media, B M Media shall be entitled to make any other use of the ideas and concepts delivered by B M Media to the client and the client acknowledges that it will not utilise any material, idea and/or concept recommended by B M Media without providing a formal instruction to B M Media and/or otherwise having the agreement in writing from B M Media signed by a director.
8.1.7 Property Rights & Agreements: B M Media retains the rights in all intellectual property including, but not limited to, concepts, designs, files, final drawings, ideas, improvements, inventions, know how, layouts, novel ideas, plans, procedures, processes, samples and systems associated with and/or originating from the Services.
8.1.8 Delivery Dates: All dates and times quoted for delivery of Services and or Products are estimates only and time is not of the essence for the provision of the relevant services.
8.1.9 B M Media will use all reasonable endeavours to meet the Deliverables Timetable.
8.1.10 Delay In Performance: In the case of any and all events that B M Media could not have foreseen or prevented, such as fire, natural disasters, war, terror, strikes, power outages, lockdown or similar imposed by a statutory body and/or if the delivery of the Services and or Products is delayed for any reason other than a breach of these Terms & Conditions by B M Media:
(a) The time specified for the delivery of the Services and/or Products, will be extended as a result of the delay to a period notified by B M Media in its sole discretion; and
(b) B M Media will be entitled to claim payment for the Services and/or Products as well as an additional amount to cover any consequential costs and expenses suffered by B M Media as a result of the delay in performance.
8.2 Rights & Responsibilities of the Client:
8.2.1 Rights of Use: Except as may otherwise be agreed in writing between the parties and signed by a director of B M Media:
(a) B M Media grants the Client a license conferring the right of use of the Services and/or Product provided to it by B M Media;
(b) The Client shall not alter or amend any of the Services and/or Product delivered and in particular acknowledges that the Client shall have no right to further develop or edit such services.
(c) The transfer and/or assignment of these rights of use and enjoyment to third parties requires the written consent of B M Media.
(d) The License conferred by this clause is granted only on condition that payment for all services is made as required by these Terms & Conditions.
(e) Upon B M Media giving notice in writing to the Client, the Client shall immediately return all presentation materials supplied. The Client shall not be entitled to continue to use or, in particular, to edit, pass on to third parties, publish or make copies of any presentation material prepared by B M Media unless the Client provides instructions to B M Media and B M Media agrees in writing signed by a director to the presentation materials being retained by the Client.
(f) If the Client does not provide an instruction following a presentation, the Client shall not be entitled to continue to use any services delivered and/or materials provided as part of the presentation including but not limited to editing the materials, providing the materials to third parties, publishing or making copies of any such materials and/or utilising the materials for in-house training and/or other purposes. For the avoidance of doubt the Client shall not be entitled to utilise any of B M Media ideas and concepts on which the presentation is based.
8.2.2 Correctness of Claims & Content: Once the Client has approved media advertising campaigns, any related creative material in addition to, but not limited to conceptual designs, final artwork or final drawings:
(a) The Client will be responsible for the correctness of all text and the inclusion of the pictures and their location on any part of the materials.
(b) The Client carries responsibility for the accuracy of any statements in the advertisements made with regard to products or services delivered by the Client and acknowledges that B M Media is simply relying on information provided by the Client, B M Media has not made any independent enquiry as to the accuracy of the information which the Client warrants as completely true and correct;
(c) The Client warrants that there has been no infringement of any third party’s intellectual property rights and that all necessary consents by third parties either as to the use of the intellectual property rights and/or the use of any imagery of that third party have been obtained.
8.2.3 Compliance Responsibilities: The Client shall check all material submitted to B M Media and any material provided to the Client by B M Media for any image and/or content that may infringe copyright and/or any other intellectual property rights or rights of third parties and shall advise B M Media in writing prior to approving any artwork, copy and/or written materials of any such infringement. In the absence of written notification as required by this clause the Client warrants that there is no infringing material that B M Media is being requested to produce.
8.2.4 The Client is responsible for ensuring a legal review of proposed ideas, suggestions, concepts, proposals, conceptual designs, etc and their patentability, copyright-ability, eligibility for trademark registration, non-infringement of third parties’ intellectual property rights, and compliance with all relevant laws and regulations and warrants that all such materials comply with all legal requirements.
8.2.5 Nothing in this clause shall derogate from the indemnity the Client provides to B M Media pursuant to these Terms & Conditions.
CONFIDENTIALITY
9. Confidentiality
9.1 Confidential Information: Inclusions
9.1.1 The recipient of Confidential Information belonging to another party must take all reasonable steps to ensure that it keeps confidential during the term of any instruction and at all times in the future after the completion of the instruction and after the termination of these Terms & Conditions.
9.1.2 The Client will procure an undertaking as to the confidentiality of the information from each of its officers, employees, contractors and professional advisors (and their employees and officers) if requested.
9.2 Confidential Information: Exclusions
9.2.1 Confidential information does not include information that:
(a) the Recipient can demonstrate was known to it prior to the date of disclosure,
(b) is lawfully and independently obtained from a third party without restriction as to its disclosure or use,
(c) is independently deduced, discovered or developed by the Recipient;
(d) is or becomes (through no fault of the Recipient or its officers, employees, contractors or professional advisers, and their respective employees and officers) public knowledge;
(e) the Recipient is required to disclose by law or by order of any court of competent jurisdiction or of any regulatory authority whose requirements are binding on the Recipient; or
(f) is released from its confidential status by the Discloser.
INDEMNITIES, LIABILITIES & WARRANTIES
10. Indemnities & Liabilities
10.1 Rights & Responsibilities of the Client: Inclusions
10.1.1 The Client indemnifies B M Media, its officers, employees, contractors or professional advisers, and their respective employees and officers, in respect of any claims, loss (including legal costs on a solicitor-client and/or indemnity basis and any actual expenses incurred including but not limited to those of any debt collection agency and any direct, indirect or consequential loss), caused by or arising out of, directly or indirectly the carrying out of any instruction by B M Media from the Client and/or any act, omission, negligence, or default by or on behalf of the Client and/or the infringement of any copyright, patent and/or any other intellectual property right of any third party whether such liability arises under the Fair Trading Act or any other statutory enactment irrespective of whether it is known at the time of infringement that such third party rights exist (including but not limited to any provision of the Health and Safety in Employment Act 1992, the Privacy Act 1993, the Fair Trading Act 1986 and/or any other enactment under which B M Media may become liable).
10.2 Limitation/Exclusion of Liability
10.2.1 B M Media shall have no liability to the Client for any delay in carrying out any instructions received and/or otherwise as a result of the breach of any terms of these terms and conditions and shall have no liability for any losses suffered to the Client (whether being direct losses and/or indirect and/or consequential and/or economic losses) howsoever caused (whether as a result of the wilful acts of B M Media its employees, contractors and/or agents and/or as a result of any negligence on the part of B M Media, its employees, contractors and/or agents).
10.2.2 B M Media makes no representation as to the originality of any ideas, suggestions, concepts, proposals, conceptual designs, and/or their patentability or eligibility for trademark registration nor as to the ownership of any copyright in the ideas.
10.2.3 B M Media’s total liability under these Terms & Conditions to the Client or any other party will not exceed the amount of any service fee actually paid to B M Media, or media commission or margin realised by B M Media.
10.2.4 Without limiting the foregoing exclusions and limitations on B M Media liability the following specific exclusions shall also apply:
(a) B M Media is not liable for content posted by the Client on websites, social media platforms or elsewhere
(b) B M Media will not be liable for any changes the Client makes to all or part of the website, email systems or social media accounts that are the subject of any instruction to B M Media;
(c) Screen colours (RGB) may deviate from printer’s colours (CMYK) on various media (e.g. paper, fabrics, films, foils, banners, etc).
(d) Figures or photos in printed work or on the Internet are not the responsibility of B M Media and no warranties are provided for actual looks and colours.
11. Warranties
11.1 Rights & Responsibilities of the Client: Inclusions
11.1.1 The Client warrants that it has not relied on any representation made by B M Media in providing any instruction to B M Media and these Terms & Conditions constitute the entire agreement between the parties.
11.1.2 If the Client is a company or trust, the director(s) or trustee(s) by agreeing to instruct B M Media agree that in their personal capacity they are jointly and severally liable as principal debtors and undertake to meet the payment of any and all other monies now or hereafter owed by the Client to B M Media.
11.1.3 There is no limitation on the liability of any director and/or trustee (which shall be unlimited) and the director and/or trustee guarantees the performance by the Client of all obligations of the Client to B M Media.
11.1.4 These obligations are continuing obligations.
11.2 No Warranties
11.2.1 B M Media does not provide any warranty in respect of, nor accept any liability for, the performance or non-performance of any media advertising campaigns, materials and/or services provided except to the extent required by law.
11.1.2 All warranties implied by law, custom or otherwise, are excluded to the extent permitted by law.
11.1.3 Any condition or warranty which would otherwise be implied in these Terms & Conditions is excluded to the maximum extent permitted by law, and the Consumer Guarantees Act 1993 will not apply to Services acquired, or where the Client holds themselves out as acquiring the Services, for the purposes of a business.
11.1.4 The Client warrants that the services and materials to be provided are fit for the purpose communicated to B M Media and that the Client has relied on its own judgment as to the suitability of the purpose for which the materials and service are provided.
PRICING, QUOTATIONS, CHARGES & LEGAL COSTS
12. GST Exemption
12.1 If an advertiser Client or other Client confirms to B M Media that they meet the requirements of the Inland Revenue Department in qualifying for GST exempt status then B M Media agrees to not charge GST on amounts invoiced to the advertiser client or other client. The advertiser client or other Client hereby indemnifies (and will keep indemnified) B M Media in any circumstance where the Inland Revenue Department seeks to recover from B M Media any amount of GST on the basis that an invoice or invoices that did not includes GST, where in fact meant to have included GST. B M Media reserves the right, in its sole discretion, to determine whether or not any particular transaction meets the requirements for B M Media to not need to include GST in the invoice.
- Charges for Interruptions & Corrections
13.1 Should B M Media incur extra costs because of interruptions, delays, overtime, unusual hours or errors by any party or third party such extra costs may be added to the Price.
14. Change to Scope & Price:
14.1 The Price is based upon the media advertising campaigns and services referred to in the Media Schedules or Quotation or Proposal or Estimate. If the Client requires the service of a product that is at variance to the service referred to in the Media Schedule or Quotation or Proposal or Estimate, B M Media reserves the right to amend the Price and/or the deliverables timetable.
15. Legal Costs
15.1 Without derogating from the general indemnities above on occasion B M Media requires legal opinions and other professional work to be obtained and/or carried out from time to time in respect of any instruction. These will be costs (including costs on an indemnity and/or solicitor-Client basis and/or actually incurred) the Client will bear including, but not limited to, legal reviews of proposed concepts, designs and copy (for example, to ensure they do not breach the Fair Trading Act or the intellectual property rights of others).
15.2 B M Media reserves the right to charge the Client for the cost of obtaining legal reviews of proposed concepts, designs and copy on behalf of the Client.
CREDIT CHECK INFORMATION & PRIVACY ACT
16. Credit Check Authorisation & Access
16.1 By providing an instruction and/or otherwise agreeing to these Terms & Conditions, you authorise B M Media to obtain information from any source, including but not limited to credit bureaus and trade suppliers, in support of your credit application.
16.2 The information obtained will be held by B M Media for the purpose of assessing your credit worthiness, both now and in the future, while these Terms & Conditions remain in force.
16.3 Should your request to provide instructions be declined, B M Media does not need to supply a reason for declining to accept an instruction.
PAYMENTS & RECOVERIES
17. Invoices & Payments
17.1 B M Media invoices Clients monthly for media advertising campaigns and or the work carried out and reserves the right to invoice as and when work is carried out for the client.
17.2 All invoices are due for payment on the 20th of the month following the month in which the invoice is raised which shall be paid in full without any set-off and/or deduction.
18. Delay in Payment, Penalties & Defaults
18.1 Overdue Payment: Where money the Client owes to B M Media under these Terms & Conditions remains unpaid after the date upon which it should have been paid (“Overdue Payment”), B M Media has the right, in addition to any other rights at law, to charge the Client late payment fee costs on such Overdue Payments.
18.2 Overdue Payment – Penalty Period: The Period of Overdue Payment will start from the day following the date due, to and including the date upon which the money is paid to B M Media.
18.3 Overdue Payment – Penalty Interest Rate: Where any payment is not made on the due date, then without prejudice to any other rights or remedies available, B M Media may charge the Client late payment fee costs on such Overdue Payments at a penalty interest rate of 2.5% per month, which will accrue daily and be calculated on a daily basis.
19. Penalty Actions
19.1 Stop Credit: If the Client’s account is operating outside the terms and conditions of these Terms & Conditions, B M Media may at its absolute discretion suspend the credit facility until such time as the account is operating within these Terms & Conditions.
19.2 Suspend Service: If the Client’s account is operating outside the terms and conditions of these Terms & Conditions, B M Media may at its absolute discretion suspend the service provided, including but not limited to suspension of media advertising campaigns, web hosting, email services and social or digital marketing of any sort, until such time as the account is operating within these Terms & Conditions.
19.3 Notwithstanding the foregoing B M Media reserves the right to decline to carry out any instruction and/or to suspend the carrying out of any instruction for any reason whatsoever and nothing in these Terms & Conditions shall require B M Media to carry out any further work on behalf of any Client.
20. Default in Payment & Recoveries
20.1 At its discretion and for the purpose of effecting collection of any monies owing under these Terms & Conditions, B M Media may forward details of defaults in payments to a recovery agency of its choice.
20.2 These details can include any amounts remaining outstanding and overdue for payment.
20.3 Should B M Media utilise the services of a recovery agent, including but not limited to a debt collection company, private investigator, legal agent or solicitor, the Client undertakes to indemnify and make payment to B M Media of all costs incurred, whether these costs be on a fixed or contingent basis, in regard to the collection of any monies owed by the Client.
20.4 If a decision is made by B M Media to recover the costs using legal proceedings, these costs may at the discretion of B M Media form part of the Statement of Claim, and be added to the amount owed on a solicitor-client and/or indemnity basis.
20.5 Currency: A reference to currency is a reference to New Zealand dollars.
20.6 Jurisdiction – Applicable Law: New Zealand law shall apply exclusively to the legal relations between B M Media and the Client.
20.7 Legislation: A reference to legislation is a reference to that legislation as amended, re-enacted or replaced and includes any subordinate legislation or statutory instrument issued pursuant to that legislation as it may have been amended, re-enacted or replaced.
20.8 Consumer Guarantees Act 1993: Where you are a “business” as defined in The Consumer Guarantees Act 1993 and you are acquiring the services of B M Media for the purpose of a business, The Consumer Guarantees Act 1993 does not apply.
20.9 Partial Invalidity: If a provision of these general Terms & Conditions is held to be invalid, the enforceability of the remainder of these Terms & Conditions shall not be affected.
20.10 Governing Law of Contract: All obligations arising out of instructions provided to B M Media and/or these Terms & Conditions are subject to the laws of New Zealand and B M Media and the Client submit to the exclusive jurisdiction of the New Zealand Courts.
20.11 Nouns, etc: Words importing persons include: individuals, partnerships, trustees, bodies (corporate or otherwise) or governmental or quasi-governmental departments, authorities or agencies. In these Terms & Conditions (except to the extent that the context otherwise requires) words importing the singular include the plural and vice versa, and words denoting any gender include all genders.
21. Notices
21.1 Any notice required to be provided to B M Media can be delivered in person to the registered office of B M Media.
21.2 Should any notice be required to be provided to the Client notice shall be deemed to have been provided upon B M Media emailing the Notice to the last known email address and upon the transmission of the Notice of any Notice shall be deemed to have been received by the Client upon the occurrence of the transmission.
