1.1. The conditions set out below, together with any agreed terms specified in a job order or quote, form a legally binding contract for, and shall apply in all instances to, the sale of Goods and the provision of Services between REAL COMMUNICATIONS LIMITED (“the Company”) and the person purchasing the Goods or requesting the Services (“the Customer”) (“this Contract”). 

1.2. Goods means all Goods including content creation, media placement, copy-writing, marketing, design and related products supplied by the Company to the Customer from time to time including Goods described on any invoice or other form provided by the Company to the Customer (“Goods”); 

1.3. Services means all Services supplied by the Company to the Customer including content creation, media liaison and placement, copy-writing and editing, stakeholder engagement, brand management social media, marketing and design, event management, and related Services and as outlined in any Schedule of Services (“Services”). 

1.4. The Company reserves the right to change these Conditions at any time. Any amended Conditions will be placed on the Company website www.realcommunications.co.nz and shall apply with effect from the date they are placed on the website or otherwise specified.

2.1. Irrespective of whether the Customer has expressly signed acceptance, the Customer is deemed to have accepted these Terms when an order is placed by the Customer for the supply of Goods and/or Services by the Company. These Terms are binding on the Customer and may only be altered or amended by written agreement between the Company and the Customer. 

2.2. The Customer expressly acknowledges and agrees that the Company supplies the Goods and/or Services to the Customer on these Terms only and not on the terms stated on any other form given to the Company by the Customer. 

2.3. Where more than one person signs these Terms as Customer, including any person stated as Guarantor on the Account Application Form, each person will be jointly and individually liable for the debts of the Customer to the Company. 

2.4. Where the Customer is a company or trust, the director(s) or trustee(s) of the Customer (and where the Customer is any other entity, the person stated as Guarantor on the Account Application Form) personally guarantee the obligations of the Customer for any payment due by the Customer to the Company as a principal debtor and in consideration for the Company supplying Goods and/or Services to the Customer. 

3.1. The Price stated in any quotation or invoice is based upon New Zealand prices applying at the date of the quote.

3.2. Where a quotation is given by the Company, unless otherwise agreed, the quotation shall be valid for thirty (30) days from the date of issue.

3.3. The Company reserves the right to alter the Price in any quotation or invoice to take account of any variations in the cost of Goods and/or Services which are beyond the reasonable control of the Company and which increase the cost of Goods and/or Services by more than 10% of any quoted price.

3.4. The Price is exclusive of GST unless otherwise indicated and the Customer shall pay the price plus GST where indicated.

4.1. The Company shall issue an invoice to the Customer stating the Price.

4.2. The Customer shall pay the Price pursuant to the invoice.

4.3. The Company may require the Customer to pay a deposit. The amount of any deposit will be specified in any quotation or invoice issued by the Company and will be due and payable immediately on acceptance by the Customer.

4.4. Time for payment is of the essence and will be specified on the quotation or invoice issued by the Company.

4.5. At the Company’s discretion, for a first-time or one-off Customer, a 50% deposit will be required with the balance of 50% required within seven (7) days of the date of the final invoice.

4.6. It no time is stated otherwise, or for ongoing Services, payment is due in full at the end of each one (1) month period and/or within seven (7) days of the date of the invoice and every month thereafter until termination of this Contract.

4.7. The Company reserves the right to apply payments received in any manner the Company determines.

4.8. Without prejudice to the Company’s other remedies under this Contract, at law or otherwise, if the Customer defaults on any payment, the Customer must (if requested by the Company) pay default interest at the rate of 2.5% per month payable daily from the due date. 

4.9. The Customer will be liable for all debt collection and other expenses incurred by the Company because of the Customer’s default.

4.10. The Customer must make all payments due under this Contract (time being of the essence) without set-off or deduction of any kind.

4.11. The Customer indemnifies the Company against, and shall pay to the Company upon demand, any cost (including legal costs), claim, damage, expense or liability suffered or incurred by the Company whether arising directly or indirectly from the Company acting to recover any monies payable by the Customer pursuant to this Contract, or otherwise in connection with the exercise or attempted exercise of any of its rights or remedies under this Contract.

4.12. The Company reserves the right to refuse to provide any further Goods and/or perform any further Services if the Customer has any overdue account with the Company.

5.1. The Company may terminate this Contract by notice with immediate effect if:

(a) the Customer fails to comply with any term of this Contract or any other agreement with the Company;

(b) the Company believes on reasonable grounds that the Customer is unable to, or might be unable to, pay any charge, cost, or fee in connection with the provision of Services under these Conditions; or

(c) any step is taken to appoint a receiver, manager, trustee in administration, liquidator, provisional liquidator, statutory manager, administrator or other like person of the whole or any part of the Customer’s assets or business.

5.2. The Company reserves the right to terminate its Services as it deems necessary.

5.3. Notwithstanding Clause 5.1, the Company may terminate this Contract at any time without reason by giving the Customer 48 hours’ written notice.

5.4. Upon termination of this Contract under Clauses 5.1 or 5.2 the Customer shall forthwith pay to the Company all moneys due to the Company at the date of termination.

5.5. Termination of this Contract by the Company is without prejudice to any rights that the Company may have under this Contract.

5.6. The parties acknowledge that, notwithstanding the provisions of the Contractual Remedies Act 1979 (or any replacement act), the Customer shall not be entitled to cancel or otherwise terminate this Contract.

6.1. The Company may at any time assign its rights or interest, or any part thereof, (whether absolutely, or by way of security) or transfer its obligations or any part thereof, to any person.

7.1. The Customer shall give the Company not less than 14 days’ notice in writing of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to changes in the Customer’s name, address, contact phone or fax numbers or business practice). The Customer shall be liable for any loss incurred by the Company because of the Customer’s failure to comply with this clause.

8.1. No warranty, condition or guarantee either express or implied is given by the Company as to the quality, state or condition of any Goods and/or Services or as to their appearance, content or fitness for any purpose except that same shall confirm to good practices. The Customer acknowledges that it has relied on its own judgment in purchasing the Goods and/or Services.

8.2. Nothing in this Contract affects the Customer’s rights under the Consumer Guarantees Act 1993. If the Customer is acquiring or receiving the Goods and/or Services for the purposes of a business, the provisions of the Consumer Guarantees Act 1993 do not apply. 

8.3. In the case of Goods not manufactured by the Company, any warranty shall be the current warranty provided by the manufacturer of the Goods. The Company will not be liable for anything other than the express conditions specified in the manufacturer’s warranty. 

8.4. If the Company breaches these Terms, the remedies of the Customer shall, at the option of the Company, be limited to repair or replacement of the Goods. Under no circumstances shall the liability of the Company exceed the Price of the Goods and/or Services.

9.1. In entering into this Contract, the Customer acknowledges that the Company has no liability to the Customer for any direct or indirect or consequential loss or damage or for any loss of profit (or any other form of economic loss) arising in connection with this Contract (whether in contract or in tort) including that resulting from the negligence of the Company or any of its agents or subcontractors or any action taken by the media or otherwise arising by operation of law.

9.2. For the avoidance of doubt, the Company accepts no liability whatsoever, whether the Company has been negligent or not, for damage to or loss to the Customer, the Customer’s reputation and/or business and/or property or for injury to the Customer or its agents or subcontractors.

9.3. Subject to the exclusion of liability in Clause 9.1 above, the maximum aggregate liability of the Company for all claims made by the Customer, whether as a result of any breach of this Contract or on any other grounds or terms whatsoever (including liability as a result of tort, including negligence) will not exceed the total Price paid by the Customer to the Company pursuant to this Contract.

10.1. Use of the Company’s Goods and Services is at the Customer’s own risk.

11.1. If the Customer is an individual, this Clause 11.1 applies. The Company requires personal information and will collect and hold personal information about the Customer, principally for evaluating the request for Goods and/or Services by the Customer. The Customer can access and seek correction of any personal information by contacting the Company. The Customer agrees that its personal information may be used by the Company to advise the Customer of the Company’s other Goods and Services. The Customer authorises the disclosure of personal information held by any other party regarding any previous contracts entered by the Customer. The Customer agrees to the Company releasing to other parties’ information regarding this Contract if the Customer does not comply with its obligations.

12.1. The Company will take all necessary practical steps to comply with the Health and Safety at Work Act 2015 including, where it is required to do so, providing and maintaining a safe working environment, identifying significant hazards and having proper procedures for dealing with emergencies that may arise and maintaining a register of accidents and serious harm;

12.2. If requested, the Customer is required to register and sign the Health and Safety indemnity provided to them by the Company upon arrival at any location and to follow all other directions given to them.

12.3. In all other respects, the Customer shall ensure that it meets its own health and safety obligations and agrees to indemnify the Company as to same.

13.1. Upon acceptance of these terms and conditions as provided above the Customer acknowledges and agrees that: (a) These terms and conditions constitute a security agreement for the purposes of the PPSA; and (b) For so long as the parties carry on business together, the Company takes a security interest in all Goods which have been supplied to the Customer and all Goods that will be supplied to the Customer in the future.

13.2. The Customer undertakes: 

(a) To sign any documents and provide such complete, accurate and up-to-date information which the Company reasonably requires to register a financing statement or financing change statement on the Personal Property Securities Register; and 

(b) To indemnify the Company for all expenses incurred in registering a financial statement or financing change statement on the Personal Property Securities Register, or in releasing any Goods charged thereby; and 

(c) Not to register a financing change statement or a change demand without the prior written consent of the Company; and 

(d) To give the Company not less than fourteen (14) days prior written notice of any proposed change in the Customer’s name or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address or business practice); and 

(e) To immediately advise the Company of any material change in its business practices for selling the Goods which may result in a change in the nature of proceeds derived from such sales.

13.3. The Company and the Customer agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these Terms and Conditions.

13.4. The Customer agrees to waive its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.

13.5. Unless otherwise agreed in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 148 of the PPSA. 

13.6. The Customer unconditionally ratifies any actions taken by the Company under clauses 13.1 to 13.5. 

14.1. The Customer and the Company agree that ownership of the Goods and/or Services does not pass to the Customer until: 

(a) All amounts owing by the Customer to the Company have been paid in full; and 

(b) The Customer has satisfied all its other obligations to the Company in respect of all agreements between the Company and the Customer.

14.2. Until ownership of the Goods and/or Services passes from the Company to the Customer, the Company may give notice in writing to the Customer to return the Goods and/or Services to the Company. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods and/or Services shall cease. 

14.3. Where the Company retains possession or control of the Goods and/or Services; and payment of the Price is due to the Company; and the Company has made demand in writing of the Customer for payment of the Price in terms of this Contract; and the Company has not received payment of the Price of the Goods and/or Services, then, regardless of whether title in the Goods and/or Services has passed to the Customer or remains with the Company, the Company may dispose of the Goods and may claim from the Customer any loss incurred (including any costs) by the Company on such disposal. 

15.1. The Customer warrants that all designs or instructions to the Company will not cause the Company to infringe any patent, registered design or trademark in the execution of the Customers’ order and indemnifies the Company as to same.

15.2. The Customer acknowledges that all work produced by the Company in the context of Goods and Services is the intellectual property of the Company and that the Company continues to retain ownership of and an interest in the intellectual property associated therewith.

15.3. The Customer agrees that the Company may use any documents, designs, drawings or Goods created and/or Services provided by the Company for the Customer for the purposes of its own promotions, advertising, marketing or entry into any competition.

16.1. If at any time any provision of this Contract is or becomes illegal, invalid or unenforceable in any respect under the law of New Zealand, that will not affect or impair the legality, validity or enforceability of any other provision of this Contract.

16.2. This Contract is governed by the laws of New Zealand. The parties agree to submit to the non-exclusive jurisdiction of the Courts of New Zealand.

16.3. Notices shall be properly served on a person if delivered by hand or left at or posted in any prepaid letter addressed to that person at either the job address or any other address of the Customer specified in this Contract. Service by post shall be deemed to be affected on the second day after the date on which the notice was posted.

17.1. If the parties are unable to resolve any question, dispute or difference arising under this Contract by discussion and negotiation, the dispute must be submitted to the arbitration of a single arbitrator agreed on by the parties or in default of agreement, to be nominated by the president of the New Zealand Law Society provided however that the Company has the right to refer any dispute to the Disputes Tribunal for determination in which case the total amount in respect of which an order of the Tribunal is sought will not exceed $15,000 (or $20,000 by consent).