Terms and conditions

These Standard Terms apply to, and are incorporated by reference into, all SOW between you and STITCH, unless otherwise agreed in a SOW. In the event of a conflict between these Standard Terms and the terms of a SOW, the terms of the SOW will prevail to the extent of that conflict.

Each SOW forms a separate agreement between you and STITCH.

The parties may execute one or more SOW describing Services and/or Deliverables to be provided by STITCH to you, whether on a project basis, a retainer basis or any other basis. Neither party will be bound by any proposed SOW unless and until it has been executed by both parties.

STITCH will use commercially reasonable efforts to perform the Services within any time(s) identified in a SOW. Unless consequences for any delay in providing the Services are specified in a SOW, STITCH will not be liable to you for any delay in performing or receiving the Services.

Where any SOW are for Retainer Services, you acknowledge and agree that:

• hours allocated to you are not rolled over from month to month; and
• all time and attendance spent outside of the Services specified as the Retainer Services will be charged to you in accordance with the Standard Rate Card.

If at any time during the term of a SOW, STITCH has knowledge that the Services will not be completed within the estimated Budget then STITCH shall give you written notice of the likely costs to finalise Deliverables.

After receipt of the notice you shall either amend the budget or reduce the Services required such that the Services can be delivered within the budget.

STITCH represents and warrants to you that to the best of its knowledge and belief that except for Third Party Materials and Your Content, the Deliverables shall be STITCH's original work and/or its independent contractors.

Except for the express representations and warranties stated in these Standard Terms, STITCH makes no warranties whatsoever and to the extent permitted by law excludes any and all warranties implied by law.

In the event you or any other person modifies or uses the Deliverables outside of the scope or for any purpose not identified in the relevant SOW, all our representations and warranties shall be void.

Any cancellation by a Client must be made in writing to STITCH. Upon cancellation, the Client agrees that STITCH may at its discretion charge the following cancellation fees. The Client acknowledges that these cancellation fees are a genuine pre-estimate of the loss STITCH will suffer as a result of the cancellation. The Client may not assign the contract with STITCH, including the advertising space allocated to it, to any third party.

Cancellation of Digital Advertising may incur the following cancellation fees:

• Social media (e.g. Facebook, Instagram, LinkedIn): if the cancellation occurs within 30 days of the start of a campaign, cancellation fees amount to the time and materials incurred by STITCH; if the cancellation occurs after the start of the campaign, cancellation fees amount to the full commission of the campaign and the cost of the advertising incurred by STITCH.
• Display media: if the cancellation occurs prior to the booking deadline for the relevant advertising, a cancellation fee amounting to the time and materials incurred by STITCH may be incurred; if the cancellation occurs after the booking deadline for the relevant publication, a cancellation fee of up to 100% of the advertising cost plus the full commission due to STITCH may be charged.
• Video on demand: if the cancellation occurs over 10 days prior to the advertising campaign, a cancellation fee amounting to the time and materials incurred by STITCH plus 50% of the media costs may be incurred; if the cancellation occurs within 9 days of the advertising campaign, a cancellation fee amounting to the full price of the advertising plus the full commission due to STITCH may be charged.

STITCH will invoice you at the end of each month for the Services completed and costs incurred in completing those Services.

You will pay STITCH's invoices on or before the 20th day of the month following the date of invoice, unless otherwise agreed.

Each invoice will be a valid tax invoice.

If payment is not received by the due date, STITCH may stop providing the Services immediately until it has received payment in full and/or charge interest on the outstanding amount at a rate of 2.5% per month, calculated on a daily basis on the unpaid amount under the invoice and any other amounts you owe to STITCH in full, plus GST.

All amounts payable under a SOW are exclusive of GST and the party paying such amounts shall also pay any GST on that amount (if the payment is for a taxable supply as defined in the Goods and Services Tax Act 1985 and a tax invoice is provided).

If you dispute any invoice, you will promptly notify STITCH in writing detailing the grounds of that dispute. You must pay any undisputed portion of any validly rendered invoice but may withhold payment of the disputed portion until the dispute is resolved by the parties (acting reasonably and in good faith). Any amount accepted by STITCH as owing between the parties pursuant to the disputed invoice shall be paid within 14 days of the dispute being resolved. Any disputes will be resolved in accordance with clause 13.

Pre-existing Intellectual Property which is not developed or prepared under a SOW (Pre-existing Intellectual Property) but is used for the purposes of a SOW shall remain the property of its current owner. Your Content remains your property or your suppliers' (as applicable).

You grant STITCH a non-exclusive, royalty-free licence to use, reproduce, modify, display and publish your Intellectual Property and Your Content to the extent necessary to enable STITCH to provide the Services and Deliverables.

Upon all payments for the relevant Services and Deliverables being made in full, STITCH grants you a non-exclusive, non-transferable, royalty-free licence to use, reproduce, modify, display and publish STITCH's Intellectual Property to the extent necessary to enable you to enjoy the benefit of the Services and Deliverables.

Third Party Materials are the exclusive property of their respective owners. STITCH will:

• identify to you any Third Party Materials that may be required to perform the Services or otherwise integrated into the Deliverables; and
• whether any license is required for the Third Party Materials;
• at your expense, and unless otherwise provided for by you in a SOW, STITCH shall obtain the license(s) necessary to permit your use of the Third Party Materials as required to use the Services and Deliverables or otherwise agreed by the parties.

To the maximum extent permitted by law, STITCH's maximum aggregate liability in connection with any SOW (whether under breach of contract, tort or otherwise) will be limited to an amount equal to the aggregate fees which have been received by STITCH under the SOW in the 12 month period preceding the event giving rise to the claim.

To the full extent permitted by law, STITCH shall not be liable under any circumstances for any loss of actual or anticipated income or profits, loss of contracts, loss of revenue, loss of goodwill or for any special, indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, even where STITCH has been advised of or is aware that such damages may be incurred.

STITCH excludes all liability to any person for any damage or loss which is caused by or related to:

• delay in delivery of any Services including the failure to achieve any dates specified in a SOW or agreed written brief;
• circumstances beyond STITCH's control including, without limitation, war, civil disturbance, acts of terrorism, natural disasters, strikes, or the failure of a third party supplier approved by you to provide Services to the level, quality or continuity required by STITCH;
• any computer virus accidentally introduced to your computer system;
• any third party act or attempt to: (i) gain unauthorised access to any portion or feature of any website or interface developed by STITCH; (ii) obtain any materials, information or documents through any electronic means developed by STITCH which was not purposely made available by you to that party, including without limitation, hacking, password mining or otherwise accessing any electronic information system without authorisation; (iii) test the vulnerability of the information systems developed by STITCH or any network connected to those information systems; (iv) upload or use any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any of your electronic systems; (v) use any of your systems in any unlawful manner or in any other manner that could damage, disable, overburden or impair the system; or (vi) use automated scripts to collect information from or otherwise interact with your systems.

Both parties agree to the extent that the Services are provided for business purposes, that:

• all provisions of the Consumer Guarantees Act 1993 are excluded to the maximum extent allowed under section 43(2) of that Act; and
• sections 9, 12A and 13 of the Fair Trading Act 1986 shall not apply to the obligations of the parties under a SOW, and that it is fair and reasonable that such provisions are contracted out of for the purposes of these Standard Terms and any SOW.

Either party may terminate the Statement of Work by giving the other party at least 60 days' prior written notice of its intention to terminate.

Either party may by notice in writing to the other party terminate any SOW to which the breach relates if:

• the other party commits a material breach of the SOW which is not capable of remedy;
• the other party breaches the SOW which is not remedied within 60 days of receiving a notice to do so; or
• the other party becomes bankrupt, goes or is put into liquidation, has a receiver or statutory manager appointed over its assets or any of them, becomes insolvent, ceases to carry on its business, makes any composition or arrangement with its creditors, or is deemed or perceived unable to pay its debts when they fall due.

STITCH may terminate a SOW by providing no less than 14 days' prior written notice to you if any invoice issued is not paid when due, and for the avoidance of doubt any additional time STITCH allows you to pay shall not prejudice its right to terminate under this clause at any time.

If a SOW is terminated then no other SOW will automatically be terminated, unless otherwise agreed by the parties.

On the termination or expiry of a SOW:

• you must return all documents and materials in your possession or control which belong to STITCH, to STITCH;
• you will pay STITCH: (i) for all Services to the date of termination; and (ii) all third party costs and commitments that are not able to be cancelled;
• nothing shall affect any rights accrued or obligations owing as at the date of termination or expiry;
• clauses 2, 5, 6, 7, 9, 10, 11, 12 and 13 continue in full force and effect after termination of a SOW.

Where any dispute arises in relation to a SOW the parties will follow the procedure described below (except if a party seeks urgent interlocutory relief):

• Negotiation: The parties shall make genuine efforts to resolve the dispute by negotiation between them (ensuring the dispute is dealt with by the appropriate level of management).
• Mediation: If the parties fail to negotiate a resolution to the dispute within 14 days they shall then appoint a mediator approved by the Resolution Institute and attempt to resolve the dispute by mediation. The costs and expenses of the mediator shall be shared by the parties equally. If the parties cannot agree to a mediator, then the mediator shall be appointed by the Resolution Institute.
• Court proceedings: If mediation fails, or either party elects to opt out of the mediation process in accordance with the terms of the mediation as determined by the mediator, then the dispute may be submitted by either party to the jurisdiction of the appropriate court of New Zealand.

To the extent reasonably practicable, in the event of a dispute or any court proceedings relating to a SOW, both parties will continue to perform their obligations under that SOW and all other SOW in accordance with their terms.