Terms and Conditions of Trade

BETWEEN:
numero® (RG Limited trading as numero®) ("Agency")

AND
The Customer described in the Proposal ("Client")

1. Definitions & Interpretation

1.1 Definitions

In these Terms, unless the context otherwise requires, the following terms have the meanings set out below:

"Agency" means RG Limited trading as numero®, its successors, and assigns.
"Agreement" means the binding contract between the Agency and the Client, comprising the Proposal, these General Terms, and any applicable Special Terms.
"Background IP" means any Intellectual Property owned or licensed by the Agency prior to the commencement of the Services, or developed independently of the Services, including but not limited to proprietary code libraries, frameworks, software tools, pre-existing templates, methodologies, know-how, and generic ad account structures.
"Business Day" means a day (other than a Saturday, Sunday, or public holiday) on which banks are open for general business in Auckland, New Zealand.
"Client" means the person, company, entity, or organisation identified as the Customer in the Proposal.
"Client Materials" means all information, data, text, logos, images, graphics, and other materials provided by the Client to the Agency for use in the provision of the Services.
"Confidential Information" means all information exchanged between the parties that is not in the public domain, including business strategies, pricing, Client data, and technical know-how.
"Cyber Security Incident" means any actual or suspected unauthorised access, acquisition, use, disclosure, modification, or destruction of data or systems, including hacking, ransomware, malware, phishing, denial-of-service attacks, or third-party breaches.
"Deliverables" means the specific outputs to be provided by the Agency to the Client as part of the Services, such as Website code, design files, ad creatives, strategy documents, and reports.
"Digital Assets" means the online accounts, profiles, and properties managed or created by the Agency, including but not limited to Google Ads accounts, Meta Business Manager accounts, Google Analytics properties, Google Tag Manager containers, and Website hosting environments.
"Disbursements" means all third-party costs, including but not limited to travel, couriers, software licenses, plugins, stock content, or other costs incurred by the Agency on the Client's behalf to perform the Services.
"Fees" or "Charges" means the amounts payable by the Client for the Services as set out in the Proposal, including Management Fees, Setup Fees, and any approved Variations.
"Generative AI Tools" means software applications that use artificial intelligence algorithms to generate new content, including text, code, images, and audio (e.g., ChatGPT, MidJourney, GitHub, Copilot).
"Guarantors" means the directors or trustees of the Client (where the Client is a company or trust) who sign this Agreement and jointly and severally guarantee the performance of the Client's obligations.
"Intellectual Property Rights" (IPR) means all industrial and intellectual property rights throughout the world, whether registered or unregistered, including copyright, trade marks, design rights, patents, trade secrets, moral rights, and know-how.
"Management Fee" means the recurring fixed monthly fee payable by the Client for the Agency's management of the Services, distinct from third-party media spend.
"Minimum Term" means the initial fixed period for which the Client has agreed to engage the Agency, as specified in the Proposal (e.g., 6 billing cycles or months or 12 billing cycles or months).
"Order Confirmation" means the email confirmation sent by the Agency to the Client outlining the new Scope or cost for a Service upgrade, increased ad spend, or additional Scope requested verbally.
"Project" means the specific body of work or campaign to be undertaken by the Agency as defined in the Proposal.
"Proposal" means the document, quote, email, or online order form issued by the Agency to the Client describing the Services, Fees, and Minimum Term.
"Scope" means the specific requirements, features, and limitations of the Services as detailed in the Proposal.
"Services" means the digital marketing, web development, hosting, consulting, and design services to be provided by the Agency as described in the Proposal.
"Special Terms" means any specific terms or conditions listed in a Proposal that vary or add to these General Terms.
"Variation" means any change to the Scope, including additions to functionality, extra design revisions, or changes to the Project timeline requested by the Client after the Agreement has commenced.
"Website" means the website or web application to be designed, developed, hosted, or managed by the Agency as part of the Services.

1.2 Interpretation

(a) Currency: Unless stated otherwise, all currency references are to New Zealand Dollars (NZD).

(b) Inclusions: The words "include", "includes", and "including" are to be construed without limitation.

(c) Precedence: In the event of inconsistency, the order of precedence is: (1) The Proposal/Special Terms; (2) These General Terms.

2. Parties & Authority

2.1 Authority: The Client warrants that they have the full legal power and authority to enter into this Agreement. If the Client is a company, trust, or partnership, the person signing or accepting these Terms warrants they are authorised to bind that entity to these Terms.

2.2 Cooperation: The Client agrees to provide all necessary text, images, fonts, and access credentials ("Client Materials") in the requested format and within the timelines specified by the Agency. The Client acknowledges that failure to provide these on time will delay the Project launch but will not delay the billing schedule.

2.3 Delegated Authority: The Client acknowledges that any employee, director, or representative of the Client who is copied into or participates in Project-related communications (including email, phone, or video calls) is deemed to have the necessary authority to issue instructions and approve Variations, service upgrades, or additional Fees on behalf of the Client. This delegated authority remains in effect until the Client provides the Agency with a formal, written notice to the contrary.

3. Acceptance & Application

3.1 Application: These General Terms apply to all Services provided by the Agency to the Client, now and in the future. Acceptance of a Proposal, payment of an invoice, or continued use of the Services constitutes full acceptance of these Terms.

3.2 Precedence: In the event of a conflict between these General Terms and a specific Proposal or Special Term agreed in writing, the Proposal or Special Term shall prevail.

4. Third Party Platforms

4.1 Third Party Terms: The Client acknowledges that the Agency utilises third-party platforms (including but not limited to Google Ads, Meta/Facebook, Shopify, WordPress, Webflow). The Client agrees to be bound by the Terms of Service of these third-party platforms.

4.2 No Liability: The Agency is not liable for any actions taken by third-party platforms, including but not limited to ad account bans, suspensions, algorithm changes, platform outages, or loss of data caused by those platforms.

4.3 Agency Capacity: The Client acknowledges that in managing third-party platforms on the Client's behalf, the Agency acts solely as the Client's representative, and is not an insurer or party to the Client's agreement with the third-party platform. The Client is solely responsible for all platform terms and conditions, account setup, and media expenditure.

5. Content & Performance Disclaimer

5.1 Content Standards: The Agency reserves the right to refuse, reject, or remove any content that it reasonably believes is unlawful, misleading, offensive, or likely to breach the policies of third-party advertising platforms.

5.2 No Guarantee of Results: While the Agency employs industry best practices, the Client acknowledges that digital marketing is volatile. The Agency does not guarantee specific commercial results, including but not limited to: #1 search engine rankings, specific volumes of website traffic, "viral" social media reach, or a specific Return on Investment (ROI) or sales figures.

5.3 Content Accuracy & Proofing: The Client is solely responsible for the final review and proofing of all content, including text, images, and data, whether initially supplied by the Client or generated by the Agency. The Agency shall not be liable for any errors, including but not limited to grammatical, clerical, or factual errors, in the Deliverables once the Client has provided approval or acceptance (including deemed acceptance under Clause 7.2).

6. Renewal & Inflation

6.1 Auto-Renewal: Upon expiry of the initial Minimum Term, this Agreement automatically renews on a month-to-month basis unless terminated in accordance with Clause 13.

6.2 Inflation Adjustment: To ensure service quality, the Agency reserves the right to increase recurring Charges to account for inflation and rising operational costs. This adjustment may be applied using one of the following methods, with the Agency providing notice via the relevant invoice:

Quarterly: Up to 1.5% every three (3) billing cycles or months.
Semi-Annually: Up to 3% every six (6) billing cycles or months.
Annually: Up to 6% every twelve (12) billing cycles or months.

7. Service Delivery, Approvals & Revisions

7.1 Timeline: The Agency will use reasonable commercial endeavours to commence Services within ten (10) Business Days of payment clearance.

7.2 Deemed Acceptance: Upon delivery of any Deliverable (including ad copy, design proofs, or Website links), the Client has five (5) Business Days to provide written feedback. If no feedback is received within this period, the Deliverable is legally deemed "Accepted," and the Agency is entitled to proceed to the next stage or issue the relevant invoice.

7.3 Revision Limit: Unless specified otherwise in the Proposal, Fees include two (2) rounds of revisions per Deliverable. Any additional revisions, or changes to requirements that have already been approved, will be charged as a Variation at the Agency's standard hourly rate.

7.4 Agency Timelines & Cancellation: All delivery dates, milestones, and timeframes provided by the Agency are estimates only. The Client agrees that failure by the Agency to meet a single estimated timeline does not constitute a material breach of this Agreement. The Client is not entitled to terminate this Agreement based on a missed delivery date unless the lateness is persistent and unremitting, demonstrating a fundamental inability to perform the Services. In the event the Client terminates this Agreement due to such persistent lateness, all Fees paid up to the point of termination shall be non-refundable.

8. Client Delays & Billing

8.1 Delays: The Client acknowledges that the Agency schedules resources based on agreed timelines. If the Client delays the Project by failing to provide content, feedback, or approvals by agreed deadlines, the Agency reserves the right to:

(a) Continue billing in accordance with the Payment Schedule (work paused by the Client does not pause the billing cycle); and

(b) Charge a re-engagement fee to reschedule the work once the Client is ready.

9. Payment Terms

9.1 Fees: All Fees are quoted exclusive of GST unless stated otherwise.

9.2 Management Fees: The Management Fee is a fixed cost for intellectual property and resource allocation and is payable in full regardless of the actual media spend or campaign status in any given month.

9.3 Media Spend: The Client is responsible for paying all media costs (e.g., Google/Meta ad spend) directly to the relevant platform.

9.4 Disbursements and Expenses: The Client is responsible for all third-party costs, including but not limited to travel, couriers, software licenses, plugins, stock content, or other Disbursements incurred by the Agency on the Client's behalf to perform the Services.

(a) Reimbursement: The Client shall reimburse the Agency for all approved Disbursements, plus an administrative fee equal to 15% of the cost of the Disbursement.

(b) Direct Payment: Alternatively, and subject to the Agency's prior written approval, the Client may elect to pay any third-party providers or vendors for Disbursements directly. In this case, the 15% administrative fee will not apply to that specific direct payment.

10. Suspension & Recovery (Stop Work Clause)

10.1 Suspension: Time for payment is of the essence. If any invoice remains unpaid for seven (7) days after the due date, the Agency may immediately and without liability:

(a) Suspend all Services (including pausing advertising campaigns and taking down Websites);

(b) Revoke access to all Digital Assets and accounts; and

10.2 Late Fees: In the event of late payment, the Agency will charge a late payment administration fee of 5% of the overdue balance (compounding monthly), which the parties agree is a genuine pre-estimate of the administrative cost of managing the overdue debt.

10.3 No Liability for Suspension: The Agency is strictly not liable for any loss of traffic, data, search rankings, or revenue resulting from the lawful suspension of Services due to non-payment.

10.4 Recovery Costs: The Client is liable for all costs incurred in recovering the debt, including debt collection agency fees and legal costs on a solicitor-Client basis.

11. Service Upgrades & Verbal Orders

11.1 Verbal Instructions: The parties agree that the Client may request service upgrades, increased ad spend, or additional Scope via verbal communication (e.g., phone or video call).

11.2 Confirmation: Such verbal requests become binding once the Agency sends an email confirmation outlining the new Scope or cost ("Order Confirmation"). If the Client does not dispute the Order Confirmation within 24 hours, it is deemed accepted and forms part of this Agreement.

12. Control of Assets

12.1 Administration: During the term, the Agency retains administrative control over all ad accounts, landing pages, and analytics properties created or managed by the Agency.

12.2 Release: Upon lawful termination and strictly subject to full payment of all outstanding amounts, the Agency will transfer administrative access of the accounts to the Client. If there are outstanding debts, the Agency retains the right to withhold transfer and/or pause all campaigns within those accounts.

12.3 Unauthorised Access Removal (Client Breach): The Client must not, at any time during the term, revoke or remove the Agency's administrative access to any Digital Assets or any accounts necessary for the performance of the Services. The unauthorised removal of such access shall constitute a material, non-remediable breach of this Agreement, and the Client shall be immediately liable for the full balance of the remaining Minimum Term, which shall become immediately due and payable under Clause 13.2.

12.4 Hosting Transfer Fee: In the event the Client elects to move their Website hosting to a third-party provider during or after the term, the Client agrees to pay the Agency a Hosting Transfer Fee of $400 + GST to cover the administrative and technical costs of preparing and securely sharing all necessary Website files and access credentials. This fee must be paid in full prior to the handover process commencing.

13. Termination by Client

13.1 Notice Period: Termination of recurring Services requires written notice equivalent to two (2) monthly billing cycles (e.g., Notice given in January terminates the contract at the end of March).

(a) The Client is liable for all Fees for the entire two (2) month notice period.

(b) Final Service Period: The Fee for the final billing cycle of the notice period includes the administrative and technical work required for the secure transfer and handover of all Client-owned assets (including Digital Assets and Website files). The Scope of general Service delivery for this final billing cycle will be adjusted downward to accommodate this mandatory handover and administrative process.

13.2 Early Termination: This Agreement is for a fixed Minimum Term and then auto-renews. If the Client wishes to terminate prior to the end of the Minimum Term, the full balance of the remaining contract value becomes immediately due and payable. The minimum opt-out period is 2 billing cycles, even if these 2 cycles fall during the end of the minimum term.

(a) This Agreement is for a fixed Minimum Term as set out in the Proposal. Upon expiry, it automatically renews on a month-to-month basis, subject to Clause 13.1.

(b) Termination Before End of Term: If the Client provides a written termination notice under Clause 13.1 and the effective end date of that two (2) billing cycle notice falls after the expiry of the Minimum Term, the Client shall be liable for all Fees up to the effective end date of the notice.

(c) Insufficient Notice: If the Client attempts to terminate the Services with less than two (2) billing cycles' notice remaining in the Minimum Term, the Client shall be immediately liable for an early termination fee equivalent to the total Fees for the two (2) billing cycles following the notice, regardless of whether these cycles extend beyond the Minimum Term. This fixed fee shall become immediately due and payable.

13.3 Settlement Buy-Out: At its sole discretion, the Agency may offer a "Settlement Buy-Out" of 45% of the remaining contract value, strictly provided that this amount is paid within 3 business days of the offer being made.

14. Images & Stock Content

14.1 Quality: The Client must supply high-resolution images where required. The Agency is not responsible for the visual quality of pixelated or low-quality images provided by the Client.

14.2 Stock: If stock imagery is required, this will be charged as an additional expense or purchased directly by the Client.

15. Website Warranty

15.1 Warranty Period: For custom-developed Websites, the Agency provides a warranty against programming bugs and material defects that prevent the Website from functioning as per the Proposal, for a period of thirty (30) days following the date the Deliverable is deemed accepted under Clause 7.2.

15.2 Voidance of Warranty: This warranty shall be immediately void and of no effect if the Client, or any third party acting on the Client's behalf, modifies, edits, accesses, or otherwise intervenes in the Website's underlying code, files, hosting environment, or associated Digital Assets during the warranty period without the express written permission of the Agency.

16. Termination by Agency

16.1 Immediate Termination (For Cause): numero® may terminate all or any of the Services with immediate effect by providing written notice to the Client if the Client:

(a) Insolvency: Becomes insolvent, goes into liquidation, has a receiver, administrator, or statutory manager appointed, becomes subject to any form of insolvency administration, or makes any arrangement for the benefit of its creditors;

(b) Cessation of Business: Ceases, or threatens to cease, to carry on its business; or

(c) Material Breach: Commits a material breach of this Agreement (including but not limited to non-payment of Fees or breach of Intellectual Property terms) and: (i) The breach is not capable of remedy; or (ii) Where the breach is capable of remedy, the Client fails to remedy the breach within seven (7) days of receiving notice to do so.

16.2 Consequences of Termination for Cause: Upon termination under Clause 16.1, all amounts owing to numero® (including for Services performed but not yet invoiced and the full balance of any Minimum Term) become immediately due and payable.

16.3 Termination for Convenience (No Cause):

(a) Right to Terminate: numero® reserves the right to terminate this Agreement at any time, for any reason (or no reason), by providing the Client with thirty (30) days' written notice.

(b) Fees: In the event of termination under this clause: (i) The Client remains liable for all Fees incurred up to the effective date of termination; and (ii) The Client shall not be liable for the remaining balance of the Minimum Term (if any) beyond the notice period.

(c) Refunds: If the Client has paid Fees in advance for a period extending beyond the effective date of termination, numero® will provide a pro-rata refund for that unused period.

17. Cyber Security & Hacking Indemnity

17.1 No Guarantee: The Client acknowledges that no digital system is impenetrable. The Agency does not guarantee that Websites or Services will be free from hacking, malware, ransomware, or third-party breaches.

17.2 Indemnity: The Client indemnifies and holds the Agency harmless against all claims, losses, and costs arising from any Cyber Security Incident, specifically including but not limited to incidents caused by:

(a) Weak, compromised, or shared Client passwords;

(b) Vulnerabilities in third-party plugins, themes, or software; or

18. Intellectual Property & Conditional Assignment

18.1 Ownership: The Agency retains full legal and beneficial ownership of all Intellectual Property Rights in the Services (including but not limited to code, strategies, ad account structures, and landing pages) until the Client has paid all Fees in full.

18.2 License: Until full payment is received, the Agency grants the Client a revocable, non-exclusive license to use the Deliverables for review purposes. If payment defaults, this license is automatically revoked.

18.3 Assignment: Upon receipt of full and final payment, the Agency assigns to the Client ownership of the finished Deliverables (excluding Agency Background IP).

18.4 Right of Repossession: Should the Client fail to make full payment when due, and after revocation of the license in 18.2, the Agency reserves the right to immediately repossess any physical Deliverables and/or remove all Agency-owned code from the Client's systems. The Client irrevocably authorises the Agency, its employees, or agents to enter any premises where the Deliverables are held, without prior notice, to effect such repossession, and indemnifies the Agency against all claims arising from such entry and repossession.

19. Non-Solicitation of Staff

19.1 Restraint: During the term of this Agreement and for a period of twelve (12) billing cycles or months following its termination, the Client must not, directly or indirectly, solicit, employ, or engage any employee or contractor of the Agency.

19.2 Placement Fee: If the Client breaches Clause 19.1, the Client agrees to pay the Agency a placement fee equal to 50% of the employee's total annual remuneration. The parties agree this is a genuine pre-estimate of the cost to recruit and train a replacement.

20. Generative AI

20.1 Usage: The Agency may utilise Generative AI Tools (e.g., ChatGPT, MidJourney) in the creation of content or code. The Client acknowledges that under current copyright laws, content generated entirely by AI may not be eligible for copyright protection.

21. Personal Guarantee

21.1 Guarantee: Where the Client is a company or trust, the directors or trustees signing this Agreement ("Guarantors") jointly and severally guarantee the performance of the Client's obligations. The Guarantors personally undertake as principal debtors to pay any amounts the Client owes to the Agency and indemnify the Agency against any non-payment or default.

22. Exclusion of Consumer Legislation

22.1 The Client agrees and acknowledges that the Services are supplied and acquired in trade (as defined in the Consumer Guarantees Act 1993). The parties expressly contract out of the provisions of the Consumer Guarantees Act 1993 and the Consumer Law Act 2020 to the fullest extent permitted by law, and agree they will not apply to this Agreement.

23. General Lien and Security

23.1 Security Interest: To secure the due and punctual performance of all obligations and the payment of all Fees and other money payable by the Client under this Agreement or otherwise, the Client:

(a) Charges all of its present and after-acquired assets and property, whether real or personal, with the payment of all money owed to the Agency; and

(b) Irrevocably consents to the Agency lodging a caveat or registering a charge over any land or property owned or later acquired by the Client.

23.2 Client Undertaking: The Client undertakes to execute all documents and perform all acts required by the Agency for the purpose of protecting, perfecting, or registering the security interest and charge created by this Clause.

24. Assignment & Change of Control

24.1 Restriction on Assignment: The Client must not assign, sub-contract, novate, or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agency (which may be withheld at the Agency's sole discretion).

24.2 Change of Control: For the purposes of this Clause, a "Change of Control" (defined as the transfer of more than 50% of the shareholding or voting rights in the Client, or a sale of substantially all the Client's assets) shall be deemed an assignment requiring the Agency's consent.

24.3 Remaining Liability: Until a formal Deed of Novation is executed by the Agency, the Client (and its Guarantors) shall remain fully liable for all obligations and Fees under this Agreement, regardless of whether the business has been sold, transferred, or restructured.

24.4 Condition of Consent: The Agency may condition its consent to an assignment or Change of Control on:

(a) The new owner passing a credit check;

(b) The new owner signing a fresh contract;

(d) Payment of an administrative transfer fee of $250 + GST to cover the Agency's legal and administrative costs in processing the transfer.

25. Limitation of Liability

25.1 Liability Cap: To the maximum extent permitted by law, numero®'s total liability is limited to the total Fees paid by the Client in the three (3) billing cycles or months preceding the claim.

25.2 Exclusions: numero® shall strictly NOT be liable for:

(a) Indirect, special, or consequential damages;

(b) Loss of profits, revenue, or data;

(d) Any loss arising from or related to the Client's media spend or advertising expenditure.

26. Amendment of Terms

26.1 Right to Amend: The Agency reserves the right to amend or vary these General Terms at any time.

26.2 Notice and Acceptance: Any such amendment will be notified to the Client by email to the last known email address provided by the Client. The amended Terms shall become effective and binding on the Client thirty (30) days after the date the email notice is sent. The Client's continued use of the Services after this thirty (30) day period constitutes full acceptance of the varied Terms.

27. Entire Agreement and Representations

27.1 This Agreement (comprising these General Terms, the Proposal, and any Special Terms) constitutes the entire agreement between the parties and supersedes all prior agreements, understandings, negotiations, and discussions, whether oral or written, relating to the subject matter.

27.2 The Client acknowledges that in entering into this Agreement, it has not relied on any representation, warranty, or statement by the Agency or its representatives, other than those expressly set out in this Agreement.

Privacy

The Client agrees to keep their relationship with numero® private and confidential, and are bound by this non disclosure Clause to not disclose any of our Intellectual Property, dealings or results elsewhere without prior written consent from numero®.

Data Use & Consent: The Client agrees that the Agency may collect, store, and use the Client's business and contact data (including name, logo, and results data) for the following purposes:

Conducting credit or financial checks, particularly in the event of default or a Change of Control.
Marketing, promotional, and portfolio purposes, including showcasing the completed Project and results on the Agency's Website and marketing materials.