1. APPLICATION
1.1. These are the standard terms of engagement (Terms) of Recipe Marketing Limited (Supplier).
1.2. The Terms apply to all Services offered or provided by the Supplier unless we agree in writing otherwise.
1.3. This version of the Terms is effective from 11 May 2023 and replaces any earlier version.
1.4. The Terms apply from the date you sign a document incorporating the Terms or the date you instruct us (whether in writing or orally) to provide Services, whichever is earlier.
2. DEFINITIONS
Unless the context otherwise requires:
2.1. Agreement means the Agreement for Services between the Supplier and the Customer, including the Proposal and these Terms, each as amended or replaced from time to time;
2.2. Confidential Information means any information that is either labelled as confidential or that a reasonable person would expect to be confidential in nature, including information relating to research, development, products or business activities including details of costs, pricing structures, contractual arrangements, customers, and notes, as well as the Supplier’s Intellectual Property including worksheets, strategy documentation and coaching tools information;
2.3. Costs includes, as the context allows, internal expenses we incur and third-party disbursements we pay on your behalf when providing Services, as well as the costs the Customer will need to separately incur to achieve the desired outcome of the Services;
2.4. Customer means the person(s) contracting with the Supplier for the provision of Services and, where the context allows, includes employees, agents, and other authorised representatives of the Customer;
2.5. Fees means the fees charged or chargeable to the Customer under clause 5;
2.6. Force Majeure means an event beyond the reasonable control of a party, excluding an event to the extent it could have been avoided by a party taking reasonable steps or reasonable care;
2.7. GST means goods and services tax levied under the Goods and Services Tax Act 1985;
2.8. HubSpot means, as the context allows, HubSpot Inc or the cloud-based customer relationship platform operating under the name “HubSpot”;
2.9. Loss means any loss, cost, damage, debt, claim, action, obligation, or liability, however arising;
2.10. Intellectual Property means trade marks, patents, domains, copyright, trade secrets, know-how, and any other intangible property rights arising anywhere in the world as a result of intellectual activity;
2.11. New Intellectual Property means Intellectual Property prepared or created by the Supplier in carrying out the Services;
2.12. Quote means a fixed Fee quote for a provision of Services the Supplier has offered to the Customer in a Proposal;
2.13. Proposal means a proposal by the Supplier to the Customer for the provision of Services, as varied from time to time;
2.14. Services means the services to be provided by the Supplier to the Customer under this agreement, including marketing consultancy services and all other related, associated, incidental, and consequential services provided or to be provided by the Supplier to the Customer under this Agreement, including the services described in the Proposal;
2.15. Terms means these standard terms and includes any amendment or replacement of this version of the Terms;
2.16. Website means our website with the domain name www.recipemarketing.co.nz/;
2.17. We, our, and us refers to the Supplier and, as the context allows, any employee, agent, or representative of the Supplier;
2.18. Working Day means any day of the week except Saturdays, Sundays, and public holidays in New Zealand; and
2.19. You and your refers to the Customer.
3. INTERPRETATION
3.1. All monetary amounts referred to in or payable in connection with the Agreement are in New Zealand dollars and must be paid in that currency.
3.2. Unless stated otherwise, any hourly rate, Fees, Costs, estimate of Fees or Costs, or other monetary amount set out in this Agreement or given in connection with this Agreement is exclusive of GST.
3.3. References to statutes and other laws are references to those laws as amended or replaced.
3.4. The term ‘including’ and any similar expression will be deemed to be followed by the words ‘without limitation’.
3.5. A requirement to give notice means a requirement to give notice in writing.
4. PROVISION OF SERVICES
4.1. We will provide the Services subject to your compliance with the terms of the Agreement and the Proposal.
4.2. We will provide the Services in a proper and workmanlike manner, exercising the degree of skill, care, and diligence normally expected of a competent professional providing the same or similar Services.
4.3. The Services will be provided subject to any limitation, condition, or other term set out in the Proposal.
4.4. We are entitled to rely on the written or verbal instructions of the Customer when providing Services, even if the instructions depart from the Proposal. Any such instructions may be treated as a variation to the Services to be provided.
4.5. We will use all reasonable endeavours to ensure the Services are completed by your desired completion date (if any) and any indicative timeline provided by us.
4.6. We may treat any person signing this Agreement on behalf of the Customer, any director, trustee, or manager of the Customer, and any person expressly or impliedly authorised by the Customer, to be a duly authorised agent of the Customer from whom we may take instructions regarding the Services.
4.7. The Services will not include, and the Supplier will have no obligation to provide:
4.7.1 any services that are to be provided by HubSpot under its contract with the Customer; and
4.7.2 commercial or financial advice.
5. FEES, QUOTES AND COSTS
5.1. In consideration of us providing the Services to the Customer, the Customer will pay the following Fees, unless otherwise agreed by the Supplier in writing:
5.1.1 Fees charged in accordance with a Proposal.
5.1.2. Fees charged in accordance with our Website.
5.1.3. In all other cases, fees charged on an hourly basis.
5.2 We are entitled, in our absolute discretion, to determine the individual(s) who will perform the Services.
5.3 Our hourly rate at the date of the Agreement is $200.
5.4 We may change our hourly rates with effect from 1 April each year by giving you prior notice of the new rates.
5.5. In addition to our Fees, we will charge you for the Costs incurred or paid by us that are, in our view, reasonably required to provide, or incidental or ancillary to the provision of, the Services. Examples of these costs include graphic design, photography, paid advertising, implementation fees, and traveling costs such as flights and accommodation for travel.
5.6 Any Quotes are valid for the time stated on the Proposal, or if no time is stated, 20 Working Days.
5.7 We may from time to time provide coaching and training Services for the use of the HubSpot platform. All Fees for coaching and training Services will be charged and paid monthly, in advance of the month that the Supplier is to provide those Services.
6.1 An estimate of Fees set out in the Proposal will not be treated as a Quote.
6.2. Any Fee estimate will be based on the information you provide and the assumptions we are reasonably able to make.
6.3. An estimate of Fees will extend only to the Services described in the Proposal.
6.4. Any estimate will be subject to the following conditions:
6.4.1. The instructions, documents, and information you provide about the Services will be accurate, complete, and not misleading.
6.4.2 The project will proceed to completion in the manner we anticipate and within any indicated, or a normal, timeframe.
6.4.3. You will provide any required information or instructions in a timely and efficient manner.
6.4.4. No unforeseen impediments will arise.
6.5. If any of the conditions in clause 6.4 are not satisfied, the Customer may not rely on the Fee estimate and any additional Services required to complete the Customer’s instructions will be charged in accordance with clause 5.
6.6. All estimates will include our Fees only, and will exclude GST and any anticipated Costs, unless stated otherwise.
6.7. We reserve the right to change an estimated Fee:
6.7.1. if you request different or additional Services from those originally requested;
6.7.2. where additional Services are required, including where hidden or unidentifiable difficulties are discovered after we commence providing the Services; or
6.7.3. in the event of increases to our cost of providing Services that are beyond our reasonable control.
7. INVOICING AND PAYMENT
7.1. We may issue an invoice for Fees, Costs, and GST monthly, upon completion of any particular Services described in the Proposal (or any variation to the Proposal), and at the end of any project.
7.2. We may require the Customer to pay a deposit, which we will hold pending the issue of an invoice for Fees. The amount of the deposit, and the date by which the deposit will be payable by the Customer, will be set out in the Proposal or on our Website.
7.3. All new Customers will be required to pay a deposit for a sum equal to 50% of the Fees set out in the first Proposal or if there is no Proposal, the Fees set out in our Website for the first provision of Services. This clause will not apply to any coaching and training Services, which must be paid in accordance with clause 5.7.
7.4. Unless otherwise agreed in writing, our invoices will be due for payment on the 20th day of the month after the month in which the invoice is issued, with the exception of any invoices for coaching and training Services that are due and payable immediately upon issue.
7.5. The Customer is responsible for paying our invoices when due, regardless of whether you have instructed us to send the invoice to another person.
7.6. If you fail to pay an invoice when due, we may do any or all of the following, without prejudice to any other right we may have under the Agreement or otherwise:
7.6.1. Cancel any discount that we previously agreed to apply to the Fees.
7.6.2. Charge you interest on any overdue amount at the rate of 15% per annum, calculated daily, from the due date of the invoice until the date the amount is paid in full.
7.6.3. Charge you for the time we incur in attempting to recover the unpaid debt, at our standard hourly rates.
7.6.4. Charge you for the external costs we incur in attempting to recover the unpaid debt in accordance with clause 12.3.
7.6.5. Terminate the Agreement in accordance with clause 14.
8.1. You will provide us, free of charge and as soon as practicable, all documents and information in your power to obtain that we may reasonably require to provide the Services.
8.2. We will not, without your prior consent, use information you provide for purposes unrelated to the Services, except for the purposes outlined in clause 9.
8.3. In providing the information to us, you will ensure compliance with the Copyright Act 1994 and will identify any proprietary rights that any other person may have in any information provided.
8.4. It is your responsibility to verify the accuracy of any information you provide us that relates to the Services. We are entitled to rely on such information without making further enquiries.
9.1. You authorise us to collect, retain, and use any information about the Customer for the purpose of assessing the Customer’s creditworthiness, enforcing any rights under the Agreement, or marketing any Services provided by us to any other party. The information that we may retain and use includes personal information as defined in the Privacy Act 2020 and credit information as defined in the Credit Reporting Privacy Code 2004.
9.2. You authorise us to disclose any information obtained to any person for the purposes set out in clause 9.1.
9.3. Where the Customer is a natural person, the authorities under clauses 9.1 and 9.2 are authorities or consents for the purposes of the Privacy Act 2020 and the Credit Reporting Privacy Code 2004.
10. WARRANTIES
You represent and warrant to us that, to the best of your knowledge and belief:
10.1. you have full legal capacity and power to enter into this Agreement;
10.2. you have taken all corporate action that is necessary or desirable to authorise entry into this Agreement and performance of your obligations under it;
10.3. your entry into this Agreement does not breach any existing agreement or arrangement with another person; and
10.4. the information and documents you have provided to us are accurate, complete, and not misleading.
11. HUBSPOT
11.1 The parties make the following acknowledgments in relation to HubSpot:
11.1.1. We are a HubSpot Solutions Partner, and we agree to adhere to the Solutions Program Policies and the Program Code of Conduct.
11.1.2. We are not HubSpot, and subject to clause 11.1.1, nor are we any agent or authorised party in connection with HubSpot. We do not provide any services which HubSpot may provide unless they are expressly provisioned in a Proposal.
11.1.3. The Customer will comply with any terms and conditions set out in any HubSpot licencing agreement or any other agreement provided by HubSpot, including terms relating to the payment of licence fees.
11.1.4. You will give us access to your HubSpot system and database to the extent reasonably necessary to provide the Services.
11.1.5. We are not liable for any Loss suffered by you as a result of any action by HubSpot.
11.1.6. We are not liable for any Loss caused due to the Customer breaching its terms and conditions under any agreement with HubSpot.
12. LIABILITY, INDEMNITY AND INSURANCE
12.1. The Supplier will not be liable to the Customer nor any third party, whether under the law of contract, tort, statute, or otherwise, for Loss of the following types:
12.1.1. Loss of profit, revenue, use, chance, contract, or goodwill.
12.1.2. Indirect, consequential, or special Losses.
12.1.3 Any Loss caused by a delay in our provision of the Services to the Customer, however such delay is caused.
12.1.4 Loss that is comprised of, or relates in any way to, the implementation, installation, or other Costs the Customer has incurred or will need to incur to use or take the benefit of the Services or achieve any particular design or recommendation provided by the Supplier as part of the Services.
12.1.5. Loss caused by the Supplier relying on information provided by the Customer that is misleading, incorrect, inaccurate, incomplete, or otherwise deficient.
12.2. The Supplier’s liability to the Customer for any Loss, whether under the Agreement or otherwise and however arising, is limited to the total amount paid by the Customer for the Services under the Agreement.
12.3. The Customer will be liable for any costs we incur in attempting to enforce our rights under the Agreement, including legal costs on a solicitor-client basis.
12.4. You will indemnify us and keep us indemnified against Loss that is:
12.4.1. of a type described in clause 12.3; or
12.4.2. in any way caused by your use of the Services.
12.5. Either party’s liability for any Loss relating to this Agreement will be reduced by the extent to which the other party contributed to the Loss.
12.6. Neither party will be held to be in breach of this Agreement for failure to perform its obligations under the Agreement to the extent the failure is caused by the other party failing to comply with its obligations under the Agreement or by the other party’s negligence.
12.7. Neither party is liable for any failure to perform its obligations under the Agreement to the extent the failure is caused by Force Majeure, provided that the affected party:
12.7.1 immediately notifies the other party and provides all information reasonably available about the Force Majeure;
12.7.2. uses reasonable endeavours to overcome the Force Majeure; and
12.7.3 continues to perform its obligations as far as reasonably practicable.
12.8. We take no responsibility, or make any guarantee, as to the success of the Services in connection with the business of the Customer.
13. CONSUMER PROTECTION LEGISLATION
13.1. The Fair Trading Act 1986, the Contract and Commercial Law Act 2017, and other statutes may imply warranties or conditions or impose obligations upon the Supplier that cannot by law (or that can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms, our liability for any Loss will, where it is allowed, be excluded to the maximum extent permitted by law or, if not able to be excluded, only apply to the minimum extent required by the relevant statute.
13.2 If the Customer is a business or in trade, the parties agree to contract out of the Fair Trading Act 1986 and the Contract and Commercial Law Act 2017 to the maximum extent permitted by law.
14. DEFAULT TERMINATION
14.1. This Agreement will continue in force until either the Supplier or Customer terminates the Agreement in accordance with this clause 14.
14.2. The Supplier may terminate this Agreement with immediate effect by giving notice to the Customer if:
14.2.1. the Customer breaches the Agreement in a manner that is, in our opinion, not reasonably capable of remedy;
14.2.2. the Customer breaches the Agreement in a manner that is, in our opinion, reasonably capable of remedy but fails to remedy the breach within ten Working Days of receiving notice from us to do so; or
14.2.3. the Customer becomes insolvent or bankrupt, goes into liquidation or voluntary administration, has a statutory manager or receiver appointed over all or part of the Customer’s property, ceases to carry on business, makes any composition or arrangement with creditors, or is deemed or perceived unable to pay its debts when they fall due.
14.3. Subject to the completion of any Services in a Proposal being provided by the Supplier, and all Fees payable under a Proposal being invoiced and paid by the Customer, either party can terminate this Agreement by giving 10 Working Days’ notice.
14.4. Termination of the Agreement will not affect:
14.4.1. any rights or obligations accrued or incurred before the date of termination;
14.4.2. our right to continue to charge interest and debt collection costs;
14.4.3 the extent of the parties’ liability as set out in clause 12;
14.4.4. the parties’ rights and responsibilities under clauses 16 (intellectual property) and 17 (confidentiality), which will survive termination; and
14.5. On termination of this Agreement for any reason, the Customer will promptly return all Confidential Information and Intellectual Property owned by the Supplier that is not New Intellectual Property.
15. COMPLIANCE WITH LAWS
15.1. Except as stated otherwise in this Agreement, the Supplier and the Customer will comply with the provisions of all statutes, regulations, and bylaws of government, local, and other public authorities that may be applicable to the Services.
15.2. The Customer will obtain (at the expense of the Customer) all licenses, approvals, applications, and permits that may be required for the Services, and that are not included in the project documents provided by us.
15.3. The Supplier and the Customer will be aware of, and comply with, any relevant obligations imposed on them under the Health and Safety at Work Act 2015. The Supplier has not and will not assume any duty imposed on the Customer from time to time under that Act arising out of this Agreement.
16. INTELLECTUAL PROPERTY
16.1. New Intellectual Property will be jointly owned by the Customer and the Supplier. The Customer and the Supplier hereby grant to the other an unrestricted royalty-free license in perpetuity to copy or use New Intellectual Property.
16.2. Intellectual Property owned by a party prior to the commencement of this Agreement and Intellectual Property created by a party independently of this Agreement remains the property of that party.
16.3. The Supplier does not warrant the suitability of New Intellectual Property for any purpose other than the Services or any other use stated in the Agreement.
16.4. The Customer indemnifies the Supplier against any claim by a third party for any infringement of intellectual property rights relating to the use of information or documents provided by the Customer to the Supplier.
17. CONFIDENTIALITY
17.1. Each party will at all times maintain as confidential, and will not at any time, directly or indirectly disclose or permit to be disclosed to any person, use for itself, or use to the detriment of the other party, any Confidential Information, except:
17.1.1 to the extent reasonably required for a party to perform its obligations under this Agreement;
17.1.2. to the extent reasonably required for the Customer to use the Services in the manner intended by the Supplier;
17.1.3. as required by law; or
17.1.4. as authorised in writing by the party for whose benefit confidence is to be maintained.
17.2 Without limiting the general effect of clause 17.1, a party may disclose Confidential Information to those of its officers, employees, professional advisers, or subcontractors as is reasonably required to perform this Agreement or obtain the benefit of the Services, but strictly on a need-to-know basis.
18. DOCUMENTS BY EMAIL
18.1. We may send you notices and any other documentation contemplated by, or that is in connection with, this Agreement by email to the address noted on the Agreement or to any other email address regularly used for communicating with you about the Services.
18.2. Any document that is to be served under any legislation may be served on you by email to the address regularly used to communicate with the Customer about the Services. This clause may be treated as your consent to information being given in electronic form and by means of an electronic communication.
19. DISPUTE RESOLUTION
19.1. A party may, at any time while there is a genuine dispute relating in any way to the Agreement, give notice to the other party (Dispute Notice) specifying the subject matter of the dispute and requiring that the parties meet, within ten Working Days after delivery of the Dispute Notice, to attempt to resolve the dispute (Dispute Resolution Meeting). A dispute will not be genuine for the purposes of this clause if a Dispute Notice is given merely for tactical, strategic, or other purposes unrelated to the parties’ rights under this agreement.
19.2. If the parties fail to resolve the dispute at the Dispute Resolution Meeting, or if a party fails or refuses to attend the Dispute Resolution Meeting within the period referred to in clause 19.1 or at the time and venue agreed in writing between the parties, the Supplier may, by notice to the other party, refer the dispute to non-binding mediation by a single mediator agreed by the parties in writing or, if they are unable to agree on a mediator within five Working Days after the submission to mediation, nominated by the President for the time being of Arbitrators’ and Mediators’ Institute of New Zealand Incorporated. In the event of any submission to mediation:
19.2.1. the mediator will not be acting as an expert or as an arbitrator;
19.2.2. the mediator will determine the procedure and timetable for the mediation; and
19.2.3. the parties will share equally the cost of the mediation.
19.3. No party may issue any legal proceedings, other than for urgent interlocutory relief, relating to any dispute, unless that party has first taken all reasonable steps to comply with clauses 19.1 and 19.2.
20. GENERAL
20.1. The Agreement and any documents appended to or referred to in it, such as the Proposal, contains the entire understanding between the parties concerning their subject matter and supersedes all previous agreements, arrangements, and understandings between the parties on this subject matter.
20.2. In the event of conflict between the terms of the Proposal and these Terms, the terms of the Proposal will prevail.
20.3. If there is more than one Customer, the Customers will be jointly and severally liable under this Agreement.
20.4. You may not assign your rights or obligations under the Agreement without our prior written consent.
20.5. If we fail to enforce any terms or to exercise its rights under the Agreement at any time, we have not waived those rights. No waiver will be effective unless recorded in writing.
20.6. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will remain in full force and effect and the parties will adjust their respective rights and obligations in accordance with the spirit and intent of the Agreement.
20.7. The Agreement may be executed in any number of counterparts.
20.8. The Agreement is governed by the laws of New Zealand. You agree that any dispute in connection with the Agreement is subject to the exclusive jurisdiction of the New Zealand courts.