GENERAL TERMS - TRENDS MEDIA SERVICES
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1 PROVISION OF SERVICES
1.1 Provision of Services
Trends Media Services (TMS) a division of Trends Publishing International Limited)? shall only provide you with services described in the service agreement (“services”) on the following terms and conditions unless we agree, in writing, to vary the terms and conditions.
1.2 Time extension
Not withstanding anything to the contrary, the time frame for completion of the provision of the services and/or any specific tasks by TMS under this agreement will automatically be extended if any delay or failure to complete on time is directly or indirectly caused by or result from:
(a) The written acceptance by TMS, at your request, of any variation to the scope of the services
(b) TMS being required to provide the services in circumstances other than those reasonably anticipated at the date of such an agreement
(c) Any act or omission by you and/or any breach of this agreement by you
(d) Any exercise by TMS to suspend the provision under clause 10.5: or
(e) The occurrence of an unforeseen event (as defined in clause 14.1)
1.3 Minor variations: TMS may publish the product described in Schedules 1 and 2 (“Product”) as approved by you with such minor variations as it may reasonably require.
1.4 Placement of Product: Unless otherwise provided in Schedule 1 or 2, the placement of the Product within a TMS book or on a TMS website is at TMS’ absolute discretion.
1.5 Publication delays and website outages: TMS shall not be liable to you and/or any other party for any loss of profits, indirect, special, or consequential losses, damages, liabilities, costs, and/or expenses sustained, suffered, and/or incurred by you and/or any other party as a result of any delay in publication or as a result of any outages to any TMS website, including, without limitation, www.Trendsideas.com and www.TrendsMediaServices.com
2 YOUR OBLIGATIONS
2.1 You shall, at your own cost:
Submit all information, material, documents, photographs, images and/or any other thing relevant to the services (“materials”) or TMS may reasonably require and otherwise fully co-operate with TMS, to enable TMS to undertake the services and otherwise perform its obligations under this agreement; and
Advise TMS in writing whether you approve such draft product submitted to you by TMS or, if you do not approve such draft product, notify TMS in writing of any amendments that you wish TMS to undertake to the draft product.
2.2 Format of materials: Material submitted by you to TMS shall be in the format specified by TMS from time to time. If you submit any material in any other format, TMS may charge you a fee (based on TMS’ then current standard rates) for converting the material into an appropriate format, or refuse to accept such material unless it has been resubmitted in the specified format.
3 DEFINITIONS
3.1 “ Products” shall include without limitation:
3.1.1 Any goods supplied by TMS to the Client
3.1.2 Any inventory of the Client that is supplied by TMS
3.1.3 Any goods supplied by TMS and further identified in any invoice issued by TMS to the Client, which invoices are deemed to be incorporated into and form part of these terms and conditions
3.1.4 Any goods that are marked as having been supplied by TMS or that are stored by the Client in a manner that enables them to be identified as having been supplied by TMS
3.2 “Services” shall include all services and or advice provided by TMS.
3.3 “Prices” shall mean the cost of the products and/or services provided or agreed between TMS and the Client including but not limited to all disbursements
4 COLLECTION AND USE OF INFORMATION
4.1 The Client authorises TMS to collect, retain and use any information about the Client, for the purpose of assessing the Client’s credit worthiness, enforcing any rights under these terms and conditions, or marketing any products and/or services provided by TMS to any other party.
4.2 The Client authorises TMS to disclose any information obtained to any person for the purpose set out in clause 4.1.
4.3 Where the Client is a natural person the authorities under clauses 4.1 and 4.2 are authorities or consents for the purposes of the Privacy Act 1993 and the Client is entitled to request and correct any personal information held by TMS, at its principal place of business.
5 REMUNERATION AND PAYMENT
5.1 Unless otherwise agreed TMS shall invoice you for the relevant fees specified in the service agreement.
5.2 Goods and services tax (GST) unless expressly stated GST will be charged to and is payable by you in addition to any amount payable by you under this agreement.
5.3 Deduction: TMS shall be entitled to deduct any amount that you owe to TMS from any amount that TMS may owe to you.
5.4 Payment default: If you default in any of your payment obligations under this agreement you shall also:
(a) Be responsible for all costs of recovery incurred by TMS (including legal costs): and
(b) Pay to TMS interest on the amount(s) in default calculated of 3% above TMS overdraft rate charged by its main banker at the relevant time(s) from the due date for payment until the date payment is made in full.
6 COPYRIGHT AND INTELLECTUAL PROPERTY
6.1 Notwithstanding anything in this agreement:
(a) each party retains ownership of the copyright and all other intellectual property rights in or associated with any material provided by that party to the other party; and
(b) TMS retains ownership of all source codes, videotape, source footage, audio tracks, originating files or concepts, slide negatives, positive transparencies or digital imagery design or print templates or moulds (as the case may be), and any other thing related or connected to the creation, production, manufacture, design or development of the Product.
(c) The client maintains a license to the right to use all footage.
(d) Material provided by TMS is only licensed for use as specified.
7 INSURANCE
7.1 Insurance: TMS shall not be liable for any loss, harm or damage to any Materials provided by you to TMS. You shall be responsible for insuring all such Materials, notwithstanding that they may be in TMS’ possession at the time of such loss, harm or damage.
8 WARRANTIES FROM THE CLIENT
8.1 Client’s warranties: You shall ensure and warrant that none of the Materials that you provide to TMS, nor your use of any Product, is or will:
(a) be misleading or deceptive;
(b) be defamatory;
(c) infringe, or result in any infringement of, any copyright and/or other intellectual property right of any person; and
(d) breach, or result in any breach, of any law, statute, regulation, ordinance and/or bylaw
8.2 The Client shall indemnify TMS against all claims and losses of any kind whatsoever and however caused or arising, and without limiting the generality of the foregoing of this clause, whether caused or arising as a result of the negligence of TMS or otherwise, brought by any person in connection with any matter, act, omission or error by TMS or its agents or employees in connection with the products and/or services.
9 EXCLUSIONS AND LIMITATION OF LIABILITY
9.1 Consumer Guarantees Act 1993 (“Act”): To the fullest extent permitted by applicable law, for the purposes of Sections 2 and 43 of the Act, the Act shall not apply to the provision of any Services (and/or any goods) supplied by TMS to you as you are acquiring such Services (and goods) for the purposes of a business.
9.2 Other representations and warranties: Except as expressly provided in this agreement, you acknowledge and agree that, to the fullest extent permitted by applicable law, all contractual and/or other representations and/or warranties (either express or implied by law or otherwise) by or from TMS are excluded, including any implied warranties in relation to fitness for purpose.
9.3 “Relationships”
Nothing expressed or implied in these terms and conditions shall constitute either party as the partner, agent, employee, officer of, or as a joint venture with, the other party, and neither party shall make any contrary representation to any person.
9.4 No consequential damages: TMS shall not be liable to you and/or any other party for any loss of profits, indirect, special or consequential losses, damages, liabilities, costs and/or expenses sustained, suffered and/or incurred by you and/or any other party as a result of any direct or indirect breach by TMS of this agreement.
9.5 Maximum liability: TMS’ maximum liability under or in connection with this agreement shall not exceed in aggregate the total amount actually received by TMS from you under this agreement.
10 CANCELLATION
10.1 Cancellation by the client: you may terminate this agreement at any time by:
(a) Giving TMS no less than 30 days prior notice, and:
(b) Paying TMS the contract fee and all other payments due to TMS under this agreement as at the cancellation date, together with incidental and associated costs of early termination (including any costs of terminating subcontracting arrangements and other pre-incurred costs due to other persons)
10.2 TMS may immediately terminate this agreement by written notice to you if you fail to comply with any of your obligations under this agreement or you are insolvent.
10.3 Consequence to you: where this agreement is terminated under clause 10.2, then you shall pay TMS:
(a) The contract fee and:
(b) All other payments due to TMS, together with all incidental and associated costs of early termination, and:
(c) Any additional amount incurred in debt recovery.
10.4 Antecedent breach: Any termination of this agreement pursuant to clause 10 shall be without prejudice to the rights of either party against the other in respect of any antecedent breach of any of the provisions contained or implied in this agreement.
10.5 Suspension: If you fail to comply with any of your obligations under this agreement, TMS is entitled (at its sole discretion) to suspend the provision of the services until that breach has been remedied.
11 TITLE AND SECURITY (PERSONAL PROPERTY SECURITIES ACT 1999) (“PPSA”)
11.1 Until all sums due to TMS by the Client have been paid in full, the Client expressly agrees TMS has a purchase money security interest in all products and/or services to secure payment of the purchase price of those products and/or services and any other sums owing, and the Client waives the right to receive verification of registration of this security interest on the PPSR.
11.2 TMS’ security interest in the products and/or services continues in any new products and/or services into which those products and/or services are attached, fixed or incorporated, and in any proceeds, book debts or accounts receivable arising from the sale of the products and/or services.
11.3 The Client gives irrevocable authority to TMS to enter any premises occupied by the Client on which products and/or services are situated, at any reasonable time after default by the Client or before default if TMS believes a default is likely and to remove and repossess any products and/or services and any other property to which products and/or services are attached or in which products and/or services are incorporated. TMS shall not be liable for, and the Client HEREBY INDEMNIFIES TMS in respect of any costs, damages, expenses or losses incurred by the Client or any third party as a result of this action, or liability either in contract or in tort or otherwise in any way whatsoever unless by operation of law
such liability cannot be excluded. TMS may either resell any repossessed products and/or services and credit the Client’s account with the net proceeds of sale (after deduction of all repossessions, storage, selling and other costs) or may retain any repossessed products and/or services and credit the Client’s account with the invoice value thereof less such sum as TMS reasonably determines on account of wear and tear, depreciation, obsolescence, loss of profit and costs.
11.4 Where products and/or services are retained by TMS pursuant to clause 11.3 the Client waives the right to receive notice under section 120 of the Personal Property Securities Act 1999 (The Act) and to object under section 121 of the PPSA.
11.5 The following shall constitute defaults by the Client:
11.5.1 Non payment of any sum by the due date
11.5.2 The Client intimates that it will not pay any sum by the due date
11.5.3 Any products and/or services are seized by any of the Client’s creditors and/or any such creditor or creditors intimate(s) that it/they intend(s) to seize products and/or services
11.5.4 Any products and/or services in the possession of the Client are materially damaged while any sum due from the Client to TMS remains unpaid
11.5.5 The Client is bankrupted or put into liquidation or a receiver is appointed to any of the Clients’ assets or a landlord distrains against any of the Clients’ assets
11.5.6 A court judgment is entered against the Client and remains unsatisfied for seven (7) days
11.5.7 Any material adverse change in the financial position of the Client
11.5.8 If the Credit (Repossession) Act 1997 applies to any transaction between the Client’s present and after-acquired property that TMS has performed services on or to or in which products or materials supplied or financed by TMS have been attached or incorporated
12 SECURITY INTEREST FOR SERVICE PROVIDERS
12.1 The Client grants TMS security interest in all the Client’s present and after-acquired property that TMS has performed services on or to or in which goods or materials supplied or financed by TMS have been attached or incorporated to secure all amounts owing under these terms and conditions.
13 DEED OF PERSONAL GUARANTEE AND INDEMNITY
13.1 TMS may, at any time and at its sole discretion, require that a Deed of guarantee and indemnity be executed by a third party or parties or alternatively, require another form of security from the Client
14 MISCELLANEOUS
14.1 Unforeseen Event: TMS is not liable for any failure or delay in complying with any of its obligations under this agreement if the failure or delay arises from a cause or an event beyond its reasonable control (“Unforeseen Event”). Performance under this agreement shall resume as soon as possible, to the greatest extent possible, following the Unforeseen Event coming to an end.
14.2 Notice: A notice required or authorised to be given or served on a party under this agreement must be in writing and given or served to that party at its address, facsimile number or email address advised by that party to the other from time to time.
14.3 Subcontract: TMS shall be entitled to subcontract any person to provide any or all of the Services.
14.4 Governing Law: This agreement is governed by New Zealand law and the parties agree to submit to the exclusive jurisdiction of the New Zealand courts.
14.5 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
15 VARIATIONS TO TERMS AND CONDITIONS OF TRADE
15.1 TMS may from time to time and in its sole discretion amend, add to or delete any of these terms and conditions of trade with immediate effect by giving notice to the Client PROVIDED THAT TMS shall not make any variation to the nature or extent of the Security Interest granted by the Client in clause 11.1 without the written agreement of the Client. TMS may notify the Client by delivering to the Client by mail, facsimile, or email an invoice with these terms and conditions of trade and receipt of the invoice by the Client will be deemed to be acceptance by the Client of the terms and conditions of trade.GENERAL TERMS ? TRENDS MEDIA SERVICES.