Thinkroom NZ Terms and Conditions
1. Introduction
The services of Thinkroom Limited, a company incorporated in New Zealand, having company number 4115918 and registered office at McCoy & Co Limited, Level 3, 47 Salisbury Street, Christchurch 8013, New Zealand (“Thinkroom NZ”), are offered to you conditioned on your acceptance of these terms and conditions. Your acceptance of services from Thinkroom NZ or agreement to a quote provided by Thinkroom NZ incorporating these terms and conditions by reference constitutes your agreement to these terms and conditions, which also apply to your use of the Thinkroom website https://www.thinkroom.com / (“Website”). In these terms and conditions “we”, “us” and “our” refers to Thinkroom NZ and “you”, “your” or “Client”, refers to you, our client. A “party” under these terms and conditions refers to either you or us, or both, depending on the context. You agree that you are engaging with Thinkroom NZ as a business and you shall not be deemed a consumer under applicable UK law. You also confirm that you have reviewed and accepted these terms and have had an opportunity to negotiate them, and will not allege they are otherwise unfair or unreasonable.
2. Services
Thinkroom NZ provides growth strategy, marketing, business, design, and web design consultancy services (“Services”). We warrant that our Deliverables, Products and/or Services will be provided to you using reasonable care and skill and in a timely manner, except due to circumstances beyond our control, including your delay in providing requested materials or information to us. For the avoidance of doubt, we will not be liable for Products, Deliverables or performance of Services that are not mutually agreed in writing and included in our quote, proposal or statement of work. For example, we do not provide website maintenance and email hosting services, unless agreed and payable separately. In addition, to the extent that we work with third parties (including web developers, software platforms or stock photography platforms) to provide goods or services to you, but where you have engaged directly with those third parties under separate terms and conditions, we shall not be liable or provide any warranty regarding delivery of such goods or services, and shall not be deemed parties to such third party terms and conditions. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, WE MAKE NO WARRANTIES WHATSOEVER AND EXPLICITLY DISCLAIM ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3. Indemnity / Limitation of Liability
You indemnify Thinkroom NZ, and its representatives from any financial and professional liability in regards to your offering, compliance with applicable law, and your use of our Deliverables, Products or Services. You understand that Thinkroom NZ representatives are not chartered accountants, nor legal professionals and that you should seek independent advice on any financial, tax or legal matter discussed. Thinkroom NZ accepts no liability for any losses incurred due to late production, errors and any other consequential losses. Thinkroom NZ does not guarantee or forecast that its Deliverables, Products or Services shall result in any minimum sales, as this depends on matters outside our control, including your business proposition, your own actions and those of your competitors, and the state of the economy. Thinkroom NZ’s liability for all causes whatsoever, whether in contract, tort or otherwise, shall be limited to the net profit of Thinkroom NZ under any particular project and otherwise shall not exceed the total fees paid by you for that project. If your use of our Deliverables, Products or Services may expose you to professional liability which requires insurance cover, then Thinkroom NZ requires a detailed brief in writing to Thinkroom NZ before commencing the project.
Nothing in these terms and conditions shall limit any liability which cannot legally be limited under applicable law.
4. Payment terms
Your agreement of any price indication or quote via email indicates that you agree to pay for specified Deliverables, Products and/or Services, and personally guarantee payment of the same if agreeing on behalf of your company or organisation. You must also pay us any expenses that we have incurred on your behalf pursuant to the Deliverables, Products and/or Services (including stock photography), provided that we have obtained authorisation to incur such expenses in advance. Unless otherwise agreed in writing, our invoices are payable within 7 days of issue and will include GST if applicable. Late payments will incur a 2% penalty per month.
5. Intellectual Property
5.1
Thinkroom NZ will retain ownership of any intellectual property (“Thinkroom NZ IP”) and deliverables developed pursuant to the Services including but not limited to any sales systems, ad copy, operational structures and training programs (“Deliverables”). It is understood that Thinkroom NZ works with various businesses and any learnings, methods, techniques or systems may be used with other brands. Subject to full payment of our invoices under clause 4, we hereby grant you a non-exclusive, worldwide license to use, reproduce, and modify the Deliverables solely for your internal business and commercial use. Other than the preceding clause, or as otherwise agreed in writing, no rights or licences whatsoever, either express or implied, are granted hereunder to you as to any Thinkroom NZ IP or Deliverables.
5.2
By engaging with Thinkroom NZ you agree that any images supplied by you, or used in any manner digitally has been licenced for use and/or is otherwise free from copyright restrictions. You agree to indemnify and hold Thinkroom NZ harmless from any financial implications that may occur as a result of any third party claim of infringement of third party intellectual property rights including copyright.
6. Approvals
You are deemed to have accepted any Deliverable, Product or Services, unless you have raised an issue within seven (7) days of receipt. In the event an issue is raised, we will endeavour to use reasonable skill and care to remedy this, unless outside our control. Any change of scope may require an additional fee. As a client of Thinkroom NZ, we will be granted access to your social media accounts. An approval period for any advertised digital publication will occur. During the approval process that the social media platform conducts after your ads are submitted you will have an opportunity to make or request edits, check the accuracy of the publication or delete content if appropriate. Failure to act or communicate concerns prior to or during the approval period means that you will be assumed to have checked and approved the content for publication. Approvals of items, such as signage, printed goods, both verbal and written are binding and will result in your items being manufactured. Upon approval, you accept any artwork as accurate and the relevant costs of production.
7. Risk & Title to Products
7.1
Where Thinkroom NZ has been engaged to manufacture specific products for you or on your behalf including materials or merchandise (“Products”), until payment in full of all indebtedness to Thinkroom NZ in relation to the sale of Products or associated supply of Services, Thinkroom NZ and the Customer agree that in relation to such Products:
(a) The title to the Products supplied remains with Thinkroom NZ; and
(b) If the Products or any part them are sold or disposed of by you, you will be deemed to have done so as agent for Thinkroom NZ and the proceeds of such sale will be the property Thinkroom NZ and will hold all proceeds of sale or disposition on trust for Thinkroom NZ.
7.2
Risk in any Products supplied shall pass to you at the point of delivery.
7.3
Where Thinkroom NZ has reasonable cause to believe that you have not strictly complied with the conditions or that you have or will commit an act of bankruptcy or (being a company) has had a receiver appointed or is about to be appointed or is declared or becomes insolvent, it may suspend the delivery of any Products or Services, or repossess any or all of the Products supplied and may at any time of the day or night enter by force if necessary upon any premises where such Products are reasonably thought to be stored. You shall indemnify Thinkroom NZ against any claims, costs and liabilities arising from the exercise of this right of entry.
8. Variations
Thinkroom NZ reserves the right to change the terms, conditions, and notices under which the Website, Deliverables, Services and/or Products offered, including but not limited to the fees associated with the use of the Deliverables, Services or Products. Notwithstanding this clause, if you are already receiving Services from us, we are not permitted to unilaterally modify the original terms and conditions governing our relationship, which will continue to apply until termination of Services or until you agree to be bound by the amended terms and conditions.
9. Termination
Thinkroom NZ reserves the right, in its sole discretion, to terminate your access to the Thinkroom NZ Website and the related Services or any portion thereof at any time, upon written notice. If you have already paid for Services or Products, Thinkroom NZ may, upon termination and at its sole discretion, perform those Services, provide those Products or refund you in full. You may terminate our Services upon written notice, provided that you are liable to pay for any Services performed or any reasonable or authorised expenses incurred prior to that date. Clauses 2 to 12 will survive termination of our Services under this clause.
10. Confidential Information
“Confidential Information” includes all or any information or data (including oral and visual data and all information or data recorded in writing or in any other medium) provided by one party (“Disclosing Party”) to the other (“Recipient Party”) pursuant to the Services which is designated or marked as confidential or that should be reasonably construed as confidential having regard to the nature and circumstances under which it is disclosed, including information relating to the Disclosing Party’s operations, processes, strategic plans, designs, intentions, customers, suppliers, product information, know-how, inventions, trade secrets, formulae, software (including source code), and business affairs. Confidential Information shall not include any information that is already known by the Recipient Party, becomes publicly known through no fault of the Recipient Party, is received from a third party without a restriction on disclosure, or is disclosed by the Recipient Party pursuant to judicial action or governmental regulation or requirement; provided that the Recipient Party shall notify the Disclosing Party of any order or request to disclose information to allow reasonable time to contest such disclosure and/or obtain a protective order or other similar protection. Confidential Information provided to a Recipient Party pursuant to the Services shall not be disclosed to third parties and shall only be used as needed to perform or obtain benefit of the Services, provided that a Recipient Party may provide Confidential Information to those authorised employees, contractors, professional advisors, or other third parties having a need to know. The Recipient Party shall ensure that such third parties receiving such Confidential Information are aware of the confidential nature of such Confidential Information and are bound by confidentiality obligations no less onerous than the obligations of recipient party under these terms and conditions.
11. Governing Law
These terms and conditions are governed by the laws of New Zealand and you hereby consent to the exclusive jurisdiction of the Courts of New Zealand in all disputes arising out of or relating to the use of the Thinkroom NZ Website, Services, Deliverables or Products. For at least thirty (30) calendar days prior to the issuance of any legal proceedings, the parties will agree to enter informal mediation in good faith, unless urgent interlocutory relief is necessary to preserve the rights of a party.
12. Data Protection
You acknowledge that your use of any Products, Services, and/or Deliverables is subject to our Privacy Policy, as may be updated from time to time. We shall comply with our Privacy Policy and applicable law in connection with the operation of its Products, Services, and/or Deliverables. You shall comply with your obligations under applicable law, including the Privacy Act 2020 (NZ).
13. Non-solicitation
13.1.
During the term of these terms and conditions and for a period of twelve (12) months following the termination or expiration of these terms and conditions for any reason, the Client agrees that neither the Client nor any of its affiliates, representatives, or employees shall, directly or indirectly, do any of the following without the prior written consent of Thinkroom NZ:
a) Non-Solicitation of Staff: The Client shall not solicit, recruit, attempt to recruit, or induce any employee, contractor, or consultant of the Company to leave Thinkroom NZ or provide services to the Client or any other third party, whether as an employee, contractor, or in any other capacity;
b) Non-Solicitation of Clients: The Client agrees not to solicit, contact, or attempt to engage, directly or indirectly, any existing clients, customers, or partners of Thinkroom NZ for services similar to those offered by Thinkroom NZ for the purpose of diverting their business away from Thinkroom NZ; and
c) Solicitation of Suppliers and Partners: The Client shall not solicit, attempt to solicit, or induce any suppliers, vendors, or business partners of Thinkroom NZ to cease doing business with Thinkroom NZ or to reduce their business relationship with Thinkroom NZ.
13.2
The Client acknowledges that the restrictions contained in this clause are necessary and reasonable to protect the legitimate business interests of Thinkroom NZ and that any breach of this clause will result in significant and irreparable harm to Thinkroom NZ.
14. Miscellaneous
14.1 You agree that no joint venture, partnership, employment, or agency relationship exists between you and Thinkroom NZ and its agents, employees or contractors as a result of this agreement or use of the Thinkroom NZ Website or Services.
14.2 If any part of these terms and conditions are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the terms and conditions shall continue in effect.
14.3 These terms and conditions constitute the entire understanding of the parties and supersede all prior understandings and documents relating to the Services. No amendments to these terms and conditions shall be of any force or effect unless such amendments are recorded in writing and such document is executed by all parties.
14.4 Failure by either party to enforce any right or seek to remedy any breach under these terms and conditions shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
14.5 The parties agree to attempt to resolve any dispute regarding these terms and conditions by negotiation in good faith. If those negotiations do not resolve the dispute within 30 days, either party may commence legal proceedings, provided that nothing in this clause shall prevent either party applying for urgent interlocutory relief.
14.6 Thinkroom NZ is entitled at any time to assign its rights and obligations under these terms and conditions. The assignee will be entitled to claim full rights of set off or counter claim against you, your charge holders or successors in respect of the debt or part of the debt which is assigned.
14.7. In the event of a breach or threatened breach of these terms and conditions, Thinkroom NZ shall be entitled to seek injunctive relief, damages, or any other remedies available under law without the need to post any bond or other security.
14.8. If any provision of these term and conditions is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this clause shall otherwise remain in full force and effect.
14.9. Thinkroom NZ shall not be liable for any delay or failure to perform any of its obligations under these terms and conditions due to causes beyond its reasonable control, including but not limited to acts of God, government actions, strikes, labor disputes, internet disruptions, or changes to third-party platforms such as Google Ads.
If you have any question or concerns regarding these terms and conditions please contact
Updated 24 September 2024