Terms & Conditions of Service

1. APPLICATION
1.1 These terms and conditions apply to the Gem Media Program, Consultancy Services, Website Services or other services (“Gem Media Services”) provided by Gem Media Limited (“Gem Media”) ("us, we, our") pursuant to your Gem Media Services Plan which has been accepted by you or as otherwise agreed by you. Your Gem Media Services Plan and these Terms and Conditions constitute your agreement with you.
1.2 If there are any special conditions included in your Gem Media Services Plan these shall prevail in the event of any conflict with these terms and conditions.

2. GEM MEDIA SERVICES PLAN
2.1 You are solely responsible for the accuracy of any information upon which we have based your Gem Media Services Plan.
2.2 Any changes to the Gem Media Services required subsequent to any Gem Media Services Plan provided to you by us shall constitute a variation and shall be paid for in addition.
2.3 If we provide an estimate we are not bound to supply the Gem Media Services at the estimated price and you are liable for the actual price of any Gem Media Services we supply as invoiced by us.

3. AUTHORISATION
3.1 You agree that we have no obligation to inquire into the authority of any person placing orders or instructions on your behalf.

4. TERM
4.1 The Term of the Agreement (if any) is as specified in your Gem Media Services Plan.

5. FEES
5.1 In consideration for the performance of the Gem Media Services by us, you agree to pay our Fees (as specified in our Gem Media Services Plan) to us and the costs of all Third Party Costs.
5.2 The Deposit is payable on the date set out in your Gem Media Services Plan and is not refundable.
5.3 All Fees are to be paid as follows:
(a) either by electronic payment of cleared funds into the bank account specified in writing by us;
(b) no later than the payment dates specified in your Gem Media Services Plan;
in New Zealand dollars, except where stated otherwise in writing by us; and 
(d) free and clear of any restriction, counterclaim, condition, set-off, deduction whatsoever.
All Fees and Third Party Costs are exclusive of GST, except where stated otherwise in writing by us. Our GST number is 134-880-686.
5.5 If (for whatever reason) we do not receive payment of our Fees by the due date, or if the Third Party Costs are not paid by you by the date required by us, then we (without prejudice to any of our other rights or remedies under the Agreement or otherwise at law), may (at our sole discretion) suspend the Gem Media Services unless and until the outstanding sum is paid.
5.6 If we take action to recover overdue amounts from you, you will be liable to pay any costs incurred by us in recovering the overdue amounts, including but not limited to any legal costs(on a full indemnity basis) and collection agency charges.
5.7 If in our sole opinion your credit worthiness deteriorates before the end of the Term we may require full or partial payment at any time or the provision of security in a form acceptable to us. If such payment or security is not provided we may refuse to supply or cease supplying the Gem Media Services to you.
5.8 We may charge, and you must pay, default interest at the rate of 2% per month (calculated on a daily basis) until all amounts owed to us are paid in full including actual legal costs and other costs (including debt collection costs) and expenses incurred by or on behalf of us in enforcing or defending all or any of our rights.

6. CONSULTANCY SERVICES/GEM MEDIA PROGRAM
6.1 If the Gem Media Services include Consultancy Services or Gem Media Program, you acknowledge and agree as follows:(a) we are not your employee, manager, lawyer, accountant, psychiatrist, psychologist, therapist, public relations manager, social media manager, doctor, counsellor, business operations manager, financial analyst or other agent of your business; and
(b) we may offer our opinion regarding financial decisions, but it is ultimately your responsibility to make the final decision and chose the best option for you; and
(c) that there is no guarantee that the Gem Media Program or the Consultancy Services provided to you will result in your goals will be reached.
6.2 You also acknowledge and agree that the Gem Media Program and Consultancy Services do not include:(a) procuring business or potential clients for you;
(b) performing any business management services for you;
(c) legal advice or accounting advice and/or opinion of any kind regarding criminal or civil tax liabilities or investigations;
(d) therapy sessions in the form of psychotherapy, psychoanalysis or behavioural therapy;
(e) publicity, public relations and/or social media marketing services; or
(f) an introduction to our professional network and/or business relationships.
6.3 You acknowledge that it is important that you attend any meeting or calls with us which are scheduled as part of the Gem Media Program and the Consultancy Services provided to you. You are able to reschedule up to two scheduled calls or meetings with us provided that your request to reschedule a call must be made no later than one hour prior to the scheduled time of the meeting or call and must include a date and time within the following week when you will be available. Any request to reschedule will be subject to our availability and we may require an alternative time if we are not available for your proposed date and time. If you do not propose an alternative time or you are unable to attend the rescheduled meeting/call you may at our discretion forfeit that meeting/call and no refund will be provided.
6.4 You may request that we change any scheduled regular monthly calls/meetings by giving us at least 3 days’ written notice of the proposed new time. All requests for schedule changes are subject to our discretion.
6.5 You acknowledge that you are able to optimize your potential results by:
● Completion of the entire Gem Media Program (if applicable);
● Prompt responsible to communication requests for information from us (within 48 - 72hours);
● Thoughtful and meaningful participation in all calls with us;
● Utilisation of analytics and our feedback and reports;
● Completion of all assignments given to you between each scheduled call or meeting;
● Attending each call or meeting at the scheduled date, on time;
● Immediately rescheduling any calls if necessary and adhering to the rescheduled time and date; and
● Taking 100% responsibility for your participation and results, 100% of the time.

7. GEM MEDIA WEBSITE SERVICES
7.1 If the Gem Media Services include the Website Service, you agree:
(a) That we may add a statement in the footer of each page of the website that we are responsible for creation, design and hosting of your website (as applicable). We may also include a link to your website in any of our marketing material or social media advertising and on our website;
(b) That unless agreed otherwise (and specified in your Gem Media Services Plan) you are responsible for promptly providing all website content to us and for proof-reading, the correctness of any content that you provide to us and any content which we create on your behalf; and
(c) That where the Website Services are dependent on third party software or application programming interface, that we are not responsible for any changes to those services and we may charge extra (at our currently hourly rate) if any further works are required as a result of such changes.

8. SEO SERVICES
8.1 You agree that if SEO Services are provided as part of your Gem Media Services Plan that:
(a) While we will use all reasonable efforts to increase the rankings of your website on Google we do not in any way guarantee that this will happen;
(b) We may suggest changes to your website which we consider may assist (but are not guaranteed) your website’s search engine optimisation. If you require us to make changes to your website, then our hourly rate will apply. We may (but are not obliged to) develop link exchanges which result in links to and from your website to other websites, directories etc;
(c) In addition to our Fees for SEO Services, you are responsible for payment of any invoices generated by Google (or other platform) for their charges, including pay-per-click fees in respect of your SEO Service;
(d) you will appoint a single representative who is the person who has the authority to request and agree variations and approve any changes, designs, etc as required by us from time to time.

9. YOUR RIGHTS, OBLIGATIONS AND ACKNOWLEDGMENTS
9.1 You agree to:
(a) provide all information and all reasonable support as requested by us in order to enable us to provide you with the Gem Media Services, including responding promptly to all of our requests for information;
(b) respond promptly to any queries or requests for information made by us. We will let you know if information is required within a certain timeframe. If we don’t, you agree to provide us with a response within five Business Days.
9.2 You agree we can refer to the fact you are or were one of our clients in our marketing materials and on our website.
9.3 You agree and acknowledge that:
(a) any timeframes we advise to you in relation to completion of any of the Gem Media Services (excluding under the Gem Media Program) are not guaranteed. We will use reasonable endeavours to meet any timeframes given but circumstances outside our reasonable control may mean that we will be unable to meet these timeframes and we will notify you accordingly;
(b) we provide no (and cannot provide any) warranty, representation or guarantee that the Gem Media Services will deliver you anticipated or expected results for your business or will generate any increase in your sales or business activity;
(c) the Gem Media Services may require the use and/or interface of third party applications or products and we have no liability in relation to the performance or unavailability of such applications and products.

10. LIMITATION OF LIABILITY
10.1 Subject to clause
10.2 to the extent permitted under the law, you agree that we are not liable to you for any direct or indirect loss or damage, including without limitation; economic loss, loss of profits or savings (or for any indirect or consequential loss or damage) experienced by you in relation to the performance of our obligations under our Agreement with you.
10.2 To the extent permitted under la, our liability in respect of all claims for loss, damage or injury arising from a breach or our obligations under our Agreement from any act or omission by us is limited in each case to the lesser of:
(a) resupply of the Gem Media Services; and
(b) payment of the reasonable cost of a third party resupplying the Gem Media Services; and
(c) the price you have paid for the affected Gem Media Services.
10.3 All claims must be made in writing and are subject to verification or acceptance by us. No claim for any loss, damage or injury arising out of the supply of the Gem Media Services by us, may be brought more than one month after the date of completion of the Gem Media Services.

11. YOUR INDEMNITY
11.1 You will indemnify us for any physical, direct and indirect damage, economic loss or other loss or cost or expenses (including legal expenses on a solicitor and client basis), debt recovery costs and against any claims or proceedings against us to the extent caused or contributed by you (or any of your agents or employees) or arising from a breach of our Agreement with you.

12. TERMINATION
12.1 You are unable to terminate this Agreement prior to the end of the Term.
12.2 If any of the events set out in clause 12.3 occur we may without prejudice to and in addition to any other rights or remedies we may have, exercise all or any of the following rights:
(a) delay delivery of any of the Gem Media Services until the matter is resolved to our satisfaction;
(b) suspend or cancel in whole or in part the Agreement or any other contract between us by written notice to you;
(c) recover from you all amounts for any damage, losses, costs (including debt recovery costs) or expenses including actual legal costs and expenses arising from your default or non-payment and obtaining payment;
(d) by notice to you require that all amounts owed to us whether due or not are paid immediately.
12.3 The events are:
(a) breach of your obligations (including payment obligations) under our Agreement with you or any other contract with us;
(b) you entering into any negotiations for any scheme of arrangement, composition or compromise with your creditors;
(c) you, in our sole opinion, being unable to pay your debts (including contingent liabilities)as they fall due;
(d) you passing any resolution to liquidate or becoming the subject of any liquidation proceedings;
(e) you have a receiver or a receiver or manager appointed over the whole or part of your property or undertaking; or
(f) you, or any of your directors, becoming bankrupt or committing an act of bankruptcy;
(g) we consider in our sole discretion that we are unable to work with you in a productive manner.
12.4 If the Gem Media Services involve the Gem Media Program or the Consultancy Services we terminate our Agreement with if you do not provide us with any information requested within the requested period of time.
12.5 Due to the digital nature of our products and services, all sales are final. We do not accept returns, refunds, or exchanges under any circumstances. Once a digital product (including but not limited to templates, downloads, documents or digital services) has been delivered or accessed, it cannot be returned or revoked.

13. NON-SOLICITATION OF STAFF
13.1 You agree that, for a period of two years following the receipt of a Gem Media Services Plan, you will not, and will use their best endeavours to ensure that your directors, staff, agents and contractors do not, solicit, engage, employ or contract any of our employees, contractors or agents. You agree to ensure that your directors, employees, agents and contractors sign such covenant as we may require in relation to non-solicitation of our staff pursuant to this clause.

14. CONSUMER GUARANTEES ACT 1993 and FAIR TRADING ACT 1986
14.1 You agree that the Gem Media Services and Fair Trading Act 1986 are being supplied for the purposes of the business that it is fair and reasonable that the Consumer Guarantees Act1993 and sections 9, 12, 13 and 14 of the Fair Trading Act 1986 will not apply.

15. PRIVACY INFORMATION
15.1 You agree that any information about you provided to us may be used by us at any time for any purposes connected with our business including but not limited to direct marketing, debt collection and credit reporting or assessment. You authorise us to provide such information to any external agency or any party for credit information and assessment purposes and that agency or party are hereby authorised to use and continue to use such information as part of their business services. Any personal information is held at assistant@gemmedia.co and you have certain right of access to your personal information under the Privacy Act 2020.
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16. UNSOLICITED ELECTRONIC MESSAGES ACT 2007
16.1 Under the Unsolicited Electronic Messages Act 2007, you must consent to receiving commercial emails from us. Consent can either be explicit, inferred or deemed. We will infer that we have your consent to send you commercial emails from time to time unless you inform us otherwise by letter or email or unsubscribe using the unsubscribe facility in our marketing emails. The email address for unsubscribing to commercial emails is assistant@gemmedia.co.

17. INTELLECTUAL PROPERTY
17.1 Subject to clause
17.2, you acknowledge that we will own all Intellectual Property associated with any Gem Media Services we have proposed to you, this includes any design work, content, written material and creative ideas and strategy plans until all Fees, Third Party costs and other amounts owed to us are fully paid.
17.2 You acknowledge that all Intellectual Property associated with the Gem Media Program is solely owned by us.
17.3 You are solely responsible for ensuring that you have all appropriate rights and licenses to any material (“Content”) that you supply to us for the purposes of the Gem Media Services, including but not limited to video, images and text.
17.4 You acknowledge that we own the Gem Media IP.
17.5 We reserve the right, in our sole discretion, to refuse to use any Content we believe is objectionable or which we believe may infringe upon the Intellectual Property rights of others.

18. DISPUTE RESOLUTION
18.1 The parties must use reasonable endeavours to resolve any and all disputes concerning this Agreement by negotiation with one another.
18.2 If the Parties cannot resolve a dispute by negotiations under clause 18.1 within 10 Business Days, either Party may, by written notice to the other, require that the Dispute be dealt with by mediation under the following terms:
(a) The mediation shall be conducted in accordance with the Resolution Institution's standard mediation agreement.
(b) The mediation shall be conducted by a mediator and at a fee agreed in writing by the Parties. Failing agreement as to the mediator and fee within 10 Business Days, the mediator will be selected and his or her fee determined by the chairperson for the time being of the Resolution Institute (or his or her nominee).
(c) The mediation shall take place in Auckland, New Zealand.
(d) The costs of the mediation, excluding the Parties' own legal and preparation costs, will be shared equally by the Parties.
18.3 No Party may initiate or commence court proceedings relating to a Dispute unless it has complied with the procedure set out in this clause 20, provided that application may still be made to the courts for interlocutory relief or to recover a debt payable.
18.4 You agree that the fact and details of any Dispute shall constitute Confidential Information for the purposes of the Agreement.

19. CONFIDENTIALITY
19.1 Except as permitted in this clause 20.2, you agree not to disclose, communicate or distribute to any third party any Confidential Information.
19.2 Clause 20.1 will not apply where:
(a) we give our prior written consent to the disclosure of Confidential Information;
(b) is disclosed by you to any of its related companies (within the meaning given to that term in section 2(3) of the Companies Act 1993), directors, officers, employees or professional advisers, so long as they agree in writing to comply with the obligations you have;
(c) is required to be disclosed by law;
(d) is necessary to be disclosed to enable you to perform your obligations under the Agreement; or
(e) at the time of disclosure, the Confidential Information in, or subsequently enters, the public domain otherwise than by breach of any duty of confidentiality of this Agreement.

20. NOTICES
20.1 All notices and other communications to be given under the Agreement must be in writing and be addressed to the Party to whom it is to be sent at the physical address or email address from time to time designated by that Party in writing to the other Party for such purpose.
20.2 Any notice or communication given under these Terms shall be deemed to have been received:
(a) at the time of delivery, if delivered by hand;
(b) three Business Days after the date of mailing, if sent by ordinary post within New Zealand;
(c) 10 Business Days after the date of mailing, if posted or delivered overseas; or
(d) if sent by email, on the date and time at which it enters the recipient's information system, as evidenced (if requested by the recipient, where delivery is disputed) in a confirmation of delivery report from the sender's information system which indicates that the email was sent to the email address of the recipient.
20.3 Any notice or communication received or deemed received after 5.00pm or on a day which is not a Business Day in the place to which it is delivered, posted or sent will be deemed not to have been received until the next Business Day in that place.

21. GENERAL
21.1 You agree that time is of the essence in respect of your obligations to us.
21.2 We will not be prevented from enforcing any of our rights under the Agreement because on an earlier occasion we did not enforce those rights.
21.3 While you are not entitled to assign your rights under this Agreement we may.
21.4 Any variation to the Agreement must be in writing and signed by all parties.
21.5 You agree that we may issue any proceedings in respect of the Agreement in any court that suits us. The law that governs these Terms is New Zealand law.
21.6 Any provision of our Agreement that is held to be invalid or unenforceable for any reason shall be severed from and shall not affect the remaining provisions of these Terms.
21.7 You agree that the Gem Media Services Plan and our Agreement together with any variations (made in accordance with clause) express the entire understanding between us and that there have been no representations made by or on behalf of us that have been relied upon by you that are not contained in these Terms
21.8 You shall not assign all or any of your rights or obligations under our Agreement without our prior written consent.

22. INTERPRETATION
22.1 “Agreement” means your Gem Media Services Plan and these terms and conditions together with any variations agreed pursuant to clause 22.4.“Business Day” means any day other than a Saturday, Sunday or public holiday in Auckland.
“Commencement Date” means the date on which we will start providing the Services as specified in your Gem Media Services Plan.
“Confidential Information” means all information (that is not publicly known) disclosed by a party (disclosing party) to the other party (receiving party) whether orally or in writing that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of its disclosure. Our confidential information includes our intellectual property and the terms of this agreement.
“Consultancy Services” means the services we provide as part of the Gem Media Program or otherwise and which consists of all or any of the following:
(a) the provision of specific insight and knowledge to you;
(b) working with you to develop strategies;
(c) assisting you to think through and analyse business decisions; and
(d) assisting you to find your own direction for your business.
“Deposit” means the deposit (if any) specified in your Gem Media Services Plan.
“Fees” means the fees as specified in your Gem Media Services Plan.
“Gem Media Program” means the Consultancy Services which we provide to you over a fixed period of time as more particularly described in your Gem Media Services Plan.
“Gem Media Services” means the Gem Media Program, the Consultancy Services, the Website Service, the SEO Service and such other services we have agreed to provide to you as specified in your Gem Media Services Plan.
“Gem Media Services Plan” means the plan or program which we have prepared and which sets out the Gem Media Services we are to provide you, together with details of our Fees.
“GST” means Goods and Services Tax payable under the Goods and Services Tax Act 1986.
“Intellectual Property” means all copyright and all other intellectual property rights developed and/or arising in relation to the Gem Media Services.
“SEO Services” means the search engine optimisation services we provide.
“Term” means the period of time (if any) during which we have agreed to provide the Gem Media Program.
“Third Party Costs” means any amounts paid directly to a platform (e.g. Google, Facebook etc) or another third party.“
Website Service” means any services we provide to you in relation to the development and/or changes to a website.