Data Story - Terms of Engagement
1. Data Story Limited (we/us) are a digital agency that uses data to systematically measure and improve marketing performance.
2. We value our relationship with our clients (you) and believe that it is important that you are aware of the terms under which we will provide our Services to you.
Services Terms of Engagement
3. These terms of engagement will apply every time you engage us to provide Services to you unless we have agreed an alternative arrangement with you which is recorded in writing. Your engagement of our Services signifies your acceptance of this agreement.
4. Our duties under these terms of engagement are owed solely to you. We do not accept any responsibility to third parties who may be affected by our performance of the Services or who may rely on the advice that we give to you.
5. These terms of engagement are subject to change and we may modify these terms of engagement at any time, by notifying you through a general page of our website, by email or by any other method of communication. Your engagement of our Services after that date signifies your acceptance of the amended agreement.
Engagement
6. You may engage us to carry out Services to you by:
6.1. agreeing to a written Proposal; or
6.2. providing an authorised Purchase Order; or
6.3. through written or verbal verification.
Services
7. You acknowledge that the marketing services provided by Data Story are not an exact science and that search engines, media services, platforms and providers are constantly changing and evolving and that Data Story has no control over these changes.
8. Data Story will perform the Services utilising best practice strategies and up-to-date techniques, and will make recommendations to best achieve your goals, but cannot guarantee results.
9. Unless otherwise agreed by us, all Services will be carried out between 8:30am and 5:00pm (New Zealand time), Monday to Friday, excluding public holidays and the Christmas / New Year closure periods.
Fees
10. Unless we agree otherwise in writing, our Fees will be charged on the basis of our current hourly rates or a written fixed fee proposal, which shall be subject to change from time to time by providing written notice to you. Information on our current hourly rates and fixed fees is available at all times on request by you.
11. Unless stated otherwise, any estimate or fee proposal specified to you does not include GST.
12. Disbursement charges are not included in the Fees. If we incur any disbursements or expenses during the course of the Services, we will charge these to you as Additional Costs.
13. Travel time is not included in our quotations. The Data Story office is our preferred location for the Services, as it is appropriately set up for meetings and the operation of our tools. If you would prefer meetings at your office or any other location, additional Additional Costs may apply to cover our travel time and costs.
14. You must pay the Fees and Additional Costs to us on the 20th of the following month of which the invoice relates. All payments must be in cleared funds without deduction or set-off.
15. If you fail to pay any amount on the due date, we may without prejudice to other rights and remedies charge interest on the amount due, calculated daily at 3% per month from the due date until the date on which Data Story receives payment; and/or you will be liable for all costs of collection of overdue amounts including legal costs and debt collection charges.
16. Data Story reserves the right to suspend the provision of all Services upon any invoice being more than 14 days overdue, regardless of the terms of any Proposal or Specifications and shall not be liable for any Loss that you face arising out of the suspension of the Services.
Proposals
17. If we provide you with a written Proposal, then that Proposal:
17.1. is based on the Specifications outlined in the written Proposal, and is subject to change if the parties agree to amend the Specifications; and
17.2. is valid and able to be accepted for a period of 30 days, unless otherwise agreed by us.
18. Pricing and estimates
18.1. Services may be provided on a fixed fee basis (including fixed-fee projects or fixed monthly retainers) or on a time and materials basis (including time-based projects or retainers charged at agreed hourly rates), as specified in the relevant Proposal.
18.2. Where Services are provided for a fixed fee, that fixed fee applies only to the Services and Specifications expressly set out in the Proposal. Any additional Services or changes to the Specifications will be treated as a Variation and clauses 19 to 22 apply.
18.3. Where Fees are calculated on a time and materials basis (including time-based retainers), any statement of hours or Fees provided in a Proposal is a good-faith estimate only and is not a fixed price, cap, or maximum unless expressly stated in writing in the Proposal. Any estimate applies only to the Services and Specifications expressly set out in the Proposal. Any additional Services or changes to the Specifications will be treated as a Variation and clauses 19 to 22 apply.
Variations
19. If, during the course of our engagement, there are changes to the Specifications, additional Services requested, or unplanned delays or additional project time due to unforeseen reasons beyond our reasonable control, these will be treated as a Variation. Where a Variation occurs, Data Story may, at its discretion:
19.1. continue to perform the Services and charge additional Fees for the Variation on a time and materials basis at our then-current hourly rates; or
19.2. pause or halt work and review the Fees for the Proposal.
20. We may issue an amended written Proposal setting out the basis for the Variation and any associated increase in Fees. We may choose not to proceed with the affected Services until we receive your written approval to proceed. If you do not give written approval of the Variation within 7 days of receiving the amended Proposal, Data Story may suspend or terminate the affected Services or the relevant Proposal.
21. Examples of Variations include, but are not limited to:
21.1. introduction of additional brands or additional marketing channels not originally included in the Proposal (e.g. adding LinkedIn, Facebook, SEO, CRO, email automation or new campaign types);
21.2. expansion of reporting requirements beyond those agreed (e.g. additional dashboards, new KPIs, cross-channel attribution modelling, board-level reporting, or custom data visualisations);
21.3. additional tracking or analytics implementation work not specified in the original Specifications (e.g. new conversion events, enhanced ecommerce tracking or CRM integrations);
21.4. changes to the agreed marketing strategy, target markets, customer segments, or campaign objectives requiring revised planning or execution;
21.5. integration with additional third-party systems (e.g. CRM platforms, marketing automation systems, payment gateways, booking systems, or internal databases);
21.6. data cleansing, data migration, or remediation work required due to incomplete, inaccurate, or legacy data structures;
21.7. additional experimentation, testing, or optimisation work beyond the agreed scope (e.g. A/B testing programs, landing page testing, funnel restructuring)
21.8. increased campaign management intensity due to performance volatility, platform changes, compliance requirements, or external market conditions;
21.9. additional stakeholder workshops, strategy sessions, board presentations, or internal training sessions not included in the Proposal;
21.10. unplanned delays in receiving approvals, assets, tracking access, or required information resulting in rescheduling, additional project management time, or rework;
21.11. urgent work required to respond to platform updates, policy changes, tracking disruptions, or account suspensions; or
21.12. material changes in advertising budgets or campaign scale that significantly increase management complexity or workload.
22. It is our process to include project management time in all quotes, but from time to time, we are required to not only project manage Data Story’s team but also manage your team. This is generally not known at the time of quoting and may be treated as a Variation.
Termination
23. Either party may terminate an ongoing engagement (including a retainer) by giving 30 days’ written notice, unless a Proposal states otherwise.
24. Either party may terminate immediately by notice if the other party:
24.1. materially breaches this agreement and does not remedy the breach within 10 business days after receiving notice requiring remedy; or
24.2. becomes insolvent or enters liquidation, receivership, or administration.
25. Upon termination of this agreement:
25.1. we may cease performing the Services immediately (or upon expiry of any applicable notice period);
25.2. you must pay all Fees and Additional Costs incurred up to the termination date, including any committed third-party costs;
25.3. any Fees paid in advance are non-refundable to the extent they relate to Services already performed or costs already incurred;
25.4. we will provide you with any deliverables completed and paid for as at the termination date;
25.5. access to any third-party tools or services managed by us may cease, subject to the relevant provider’s terms;
25.6. any clauses which by their nature are intended to survive termination (including those relating to confidentiality, intellectual property, limitation of liability, and privacy) will continue in full force and effect; and
25.7. transition assistance or handover requested by you following termination will be provided at our then-current hourly rates.
Content, Materials and Approvals Supplied by You
26. You must supply to us all required materials you want us to use in providing our Services, and all other content and materials we reasonably request (Client Content) in a timely manner or by an agreed time.
27. You acknowledge that delays from you in providing Client Content, information, or approvals may impact delivery of the Services, and where such delays occur, we are not liable for any resulting impact, and all agreed fees (including fixed fees) remain payable in full with no entitlement to any refund or reduction.
28. You warrant that the materials or content you provide to us, or that are provided to us on your behalf, will not:
28.1. breach any rights (including Intellectual Property Rights or Moral Rights) of any third party; or
28.2. compromise the security or operation of our computer systems, through a virus or otherwise.
29. You indemnify, and agree to keep Data Story, its directors, officers and employees indemnified, against all losses arising out of the breach of any rights (including Intellectual Property Rights or Moral Rights) of any third party in connection with materials or content that you supply to us, or that are supplied to us on your behalf.
Purchase of Stock Images, Fonts, Photography, Audio or Video
30. Unless specified in the Proposal, an estimate of Fees does not include any searches or purchase of stock images, commercial fonts, photography, audio or video.
31. You can provide stock images, commercial fonts, audio or video, or we can purchase them on your behalf. When any stock images or commercial fonts are purchased on your behalf, Data Story will be the license holder and the image or font can only be used under the terms of the license/s.
32. You indemnify, and agree to keep Data Story, its directors, officers and employees indemnified, against all losses arising out of the breach of these licenses.
Third Party Software
33. We may provide third party software as part of our services.
34. Unless specified in the Proposal, an estimate of Fees does not include any third party software.
35. You acknowledge that:
35.1. we have limited control over the functionality or operation of any third party software;
35.2. if the third parties provide data or other information for use with the third party software, we have no control over the accuracy or completeness of that information;
35.3. you accept and must comply with the terms of engagement of the third party software providers; and
35.4. those third party software providers may invoice you directly for ongoing costs relating to your use of the Software or we may charge you for it as a disbursement.
36. The fees for the third party software may change from time to time. The new prices will apply from the date that we or the third party provider notifies you.
Subcontractors
37. Data Story may, at its discretion, engage employees, contractors, or subcontractors to perform all or part of the Services.
38. We will remain responsible for the performance of the Services in accordance with this agreement, but you acknowledge that subcontractors may be used as part of our normal delivery model.
39. You agree that:
39.1. we are not required to seek your approval before engaging subcontractors, unless otherwise agreed in writing;
39.2. subcontractors may perform Services from locations within or outside New Zealand; and
39.3. subcontractors may have access to Client Content, systems, or accounts to the extent reasonably required to perform the Services.
40. We will take reasonable steps to ensure that any subcontractors engaged by us are subject to confidentiality, privacy, and intellectual property obligations no less protective than those set out in this agreement.
41. You must not directly engage, solicit, or contract with any subcontractor introduced to you by Data Story during the course of the engagement, or within 6 months after it ends, without our prior written consent.
Warranty Period for websites and software products
42. You have a 20 business day period for client testing of software products or websites that we develop on your behalf.
43. Data Story provides a limited warranty period during which it will fix Bugs at no charge. The warranty period will commence 20 business days after a deliverable is handed over for client testing (Warranty Period).
44. Extended Warranty Periods can be negotiated and will be outlined in the Specifications of any Proposal.
45. It is your responsibility to review and test the software/website and ensure you are satisfied with it during the Warranty Period.
46. When third-party software, such as Webflow, WordPress, MySQL, PHP, MongoDB, Nginx, squarespace, Google Tag Manager or others, is used to build and host websites and web applications, we cannot guarantee that these software products are error-free. Any work required to address Bugs, version or system updates of third-party software is not included in the Warranty Period.
47. Any fixes or changes required to software/website as a result of upgrades to mobile operating systems like iOS, android or windows, are not included under the Warranty Period.
48. Any fixes or changes required to software/website as a result of upgrades to search engines or system upgrades, are not included under the Warranty Period.
49. Any fixes or changes required to software/website as a result of changes made by you to the software/website in any way, are not included under the Warranty Period.
50. Data Story will at its sole discretion determine the extent of labour required to perform its obligations under this clause.
51. For the avoidance of doubt clauses 42 to 50 do not apply to any marketing Services provided by us that are not website or software development.
Domain Names
52. Data Story does not represent or warrant the availability, suitability or ability to register any domain name.
53. Data Story will not, at any time, assume any liability whatsoever in respect of the use of any domain name. Any disputes arising must be resolved between the parties involved.
54. You must not transfer a domain name to another internet service provider unless you have first paid all Data Story Fees in full.
Warranty Disclaimer
55. Nothing in these terms of engagement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation which cannot be lawfully excluded or limited.
56. Subject to the obligations of this agreement and to the fullest extent permissible by law, Data Story expressly disclaims all warranties and representations of any kind, with respect to the Services, whether express, implied, statutory, or arising out of the course of performance, course of dealing or usage of trade, including any warranties of merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title of non-infringement.
57. You agree that all goods and services supplied under these terms of engagement are for the purposes of a business and the Consumer Guarantees Act 1993 does not apply.
Limitation of liability
58. To the fullest extent permissible by law, Data Story is not liable (whether in contract or tort) for:
58.1. faults or defects in any services or goods provided by third parties in connection with the Services; or
58.2. any indirect, special or consequential loss (including loss or corruption of data, loss of profits, revenue, goodwill, anticipated savings and business interruption), however arising, whether or not Data Story knew of the possibility of such loss and whether or not such loss was foreseeable.
59. To the fullest extent permissible by law, in no event will Data Story accept liability in contract, tort (including negligence and breach of statutory duty) or otherwise arising out of, or in connection with, this agreement exceed the amounts actually paid by the Client to Data Story for the Services giving rise to the claim in the 12 months preceding the event giving rise to the claim.
60. To the fullest extent permitted by law, the liability of Data Story for a breach of this agreement is limited to:
60.1. in the case of the provision of services:
60.1.1. the supplying of the services again; or
60.1.2. payment of the cost of having the services supplied again.
60.2.in relation to goods:
60.2.1. the replacement of the goods or the supply of equivalent goods;
60.2.2. the payment of the cost of replacing the goods or acquiring equivalent goods; or
60.2.3. the repair of the goods or the payment of the cost of having the goods repaired.
61. Data Story will not be liable for any act or omission if, and to the extent that, it arises due to a reason beyond its reasonable control including without limitation strikes, lockouts, fire, theft, vandalism, natural disaster, act of God, pandemic or epidemic.
Indemnity
62. You indemnify, defend and hold harmless Data Story in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:
62.1. any breach of this agreement by you;
62.2. your negligent acts or omissions; or
62.3. your use of the Services, including any third party claims made in connection with or arising out of your use of the Services, other than use in accordance with this agreement.
Intellectual Property and Supply of Raw / Editable files
63. Subject to payment of all Fees, all Intellectual Property Rights in deliverables specifically created for you under the relevant Proposal and unique to your business (Client Deliverables) vest in you upon creation. Client Deliverables do not include Data Story Materials (defined below).
64. We retain ownership of all Intellectual Property Rights in:
64.1. the Data Story Process, methodologies, frameworks, know-how and systems;
64.2. our dashboard structures, data architecture, reporting templates, tracking frameworks, attribution models and analytics configurations;
64.3. any software, scripts, automations, connectors, data models, or system designs developed by us;
64.4. any improvements, developments, adaptations or enhancements to the above created in the course of providing the Services; and
64.5. any materials, tools or systems developed independently of your engagement, (Data Story Materials).
65. To the extent that Data Story Materials are incorporated into the Client Deliverables, we grant you a perpetual, non-exclusive, royalty-free licence to use those materials solely for your internal business purposes as part of the Deliverables.
66. All campaign accounts, advertising accounts, analytics accounts, and data owned or paid for by you remain your property.
67. Nothing in this agreement prevents us from using our Data Story Materials, know-how, methodologies or improvements in providing services to other clients or developing commercial products.
68. We do not warrant that your use of the designs, materials or content produced by us in providing the Services will not infringe any third party’s Intellectual Property Rights or any person’s Moral Rights, but we will advise you if we become aware of any infringement.
69. You agree to carry Data Story logo or text hyperlink describing the nature of the service provided in any product designed for you in the course of the services.
70. You agree to allow Data Story to use the Services provided for promotional and portfolio purposes, provided that we do not disclose any Confidential Information or Personal Information, and we obtain your prior written consent before using your logo, naming you or publishing identifiable results.
Privacy & Data Protection
71. Each party must comply with the Privacy Act 2020 (and any mandatory codes of practice) to the extent it applies to that party in connection with this agreement.
72. To the extent we handle Personal Information on your behalf in providing the Services:
72.1. you are the agency (data controller) of that Personal Information; and
72.2. we are a service provider (processor) acting on your instructions.
73. You warrant that:
73.1. you have collected and will collect Personal Information lawfully;
73.2. you have the right to disclose Personal Information to us and authorise us to use it for the Services; and
73.3. where required, you have provided appropriate notices and obtained any necessary consents.
74. We will only access, use, disclose, store, or otherwise process Personal Information as necessary to provide the Services, and in accordance with this agreement and your reasonable written instructions.
75. We will take reasonable steps to protect Personal Information from loss, unauthorised access, use, modification, disclosure, or other misuse, having regard to the nature of the information and the Services.
76. We may subcontract parts of the Services. Where subcontractors may access Personal Information, we will take reasonable steps to ensure they are subject to confidentiality and data-protection obligations no less protective than those in this agreement.
77. If we receive a request from an individual to access or correct their Personal Information (or any privacy complaint) relating to your Personal Information, we will promptly notify you (unless prohibited by law) and reasonably assist you to respond, at your cost if it requires material time.
78. You acknowledge that some third-party platforms used in the Services may store or process data outside New Zealand. Where we arrange such services, we will take reasonable steps to ensure the relevant provider has appropriate protections that are reasonable in the circumstances.
Surveys and Data Collection Services
79. Where we conduct surveys, research, data collection, or feedback activities on your behalf (Survey Services), you acknowledge and agree that:
79.1. you are the agency (data controller) of any Personal Information collected;
79.2. we act as a service provider (processor), collecting and processing that information solely on your behalf and in accordance with your instructions; and
79.3. for the avoidance of doubt, we do not determine the purpose of collection and are not an “agency” in respect of that Personal Information for the purposes of the Privacy Act 2020.
80. You warrant that:
80.1. you have determined the purpose and lawful basis for collecting Personal Information through the Survey Services;
80.2. you have approved the privacy notice and disclosures to be provided to survey participants.
80.3. where required, valid consent has been obtained (or will be obtained prior to distribution) by you from participants to receive the communication and participate in the survey;
80.4. you acknowledge that we may include unsubscribe or opt-out functionality in survey invitations sent using Data Story systems and you authorise us to process opt-out requests relating to those invitations.
80.5. where Survey Services involve distribution to a contact list, you have lawfully obtained the contact details and have the legal right to use them for the relevant communication; and
80.6. the survey questions, distribution method, contact database, and intended use of collected data comply with applicable law, including the Privacy Act 2020 and the Unsolicited Electronic Messages Act 2007 (if applicable).
81. Although Survey Services may be distributed using Data Story systems, you acknowledge that we do so solely as your service provider and on your instructions, and responsibility for legal compliance of the contact list and communication remains with you.
82. We may include a privacy statement or disclosure notice within the survey invitation or survey form on your behalf, but responsibility for the legal sufficiency and accuracy of that notice remains with you.
83. We will:
83.1. collect Personal Information only for the purposes of providing the Survey Services;
83.2. not use that Personal Information for our own independent purposes; and
83.3. not disclose Personal Information except to you, your authorised representatives, or as required by law.
84. Third-Party Survey Platforms: Survey Services may be delivered using third-party platforms (for example, Typeform, SurveyMonkey, Google Forms, HubSpot, or similar tools). You acknowledge that:
84.1. those platforms operate under their own privacy and security terms;
84.2. data may be stored or processed outside New Zealand; and
84.3. we are not responsible for the acts, omissions, security failures, or data breaches of those third-party providers, except to the extent directly caused by our breach of this agreement or negligence.
85. We will take reasonable technical and organisational measures to safeguard survey data while it is in our possession or control, having regard to the nature and sensitivity of the information collected.
86. If we receive any request from a survey participant to access, correct, or delete their Personal Information, or any privacy complaint relating to the Survey Services, we will promptly notify you and reasonably assist you to respond at the current hourly rates. You remain responsible for handling such requests and for compliance with your obligations under the Privacy Act 2020 unless otherwise agreed in writing.
87. You indemnify us against any Claim arising from:
87.1. the content of survey questions;
87.2. the lawfulness of the contact list or database used for distribution;
87.3. your instructions regarding the collection or use of Personal Information;
87.4. any breach of the Privacy Act 2020 or the Unsolicited Electronic Messages Act 2007 in connection with the Survey Services; or
87.5. your failure to comply with applicable laws.
Data handling, Retention & Deletion
88. We aim to perform work in your systems wherever reasonably practicable and minimise copying or storing of your data in our systems.
89. We will only retain your client data (including Personal Information) to the extent reasonably necessary to provide the Services, meet audit or legal obligations, and maintain appropriate business records.
90. On your written request, we will (where reasonably practicable) delete or return your client data in our possession or control, except to the extent we are required to retain it by law or for legitimate business record-keeping.
91. You acknowledge that deleted data may remain in backups or archived systems for a limited period consistent with our backup/retention processes, after which it will be overwritten or deleted in the ordinary course.
92. If you provide us with data files to complete work (for example, exported email files), we will use them solely for the Services and, once the work is complete, return them to you and delete our copies within a reasonable period, subject to clauses 89 to 91.
Data Breach Notification
93. If we become aware of a Security Incident, we will notify you as soon as reasonably practicable after becoming aware.
94. We will reasonably assist you to investigate, mitigate, and remediate the Security Incident, including providing available information relevant to assessing whether the incident is a notifiable privacy breach under the Privacy Act 2020.
95. Unless required by law, we will not notify affected individuals, the Office of the Privacy Commissioner, or any other regulator about your Personal Information without your prior approval. You are responsible for deciding whether notifications are required and making them, unless we agree otherwise in writing.
96. Each party will bear its own costs arising from a Security Incident, subject always to the limitation of liability provisions of this agreement.
Access Credentials and Client Account Responsibility
97. If the Services require access to your accounts (e.g., Google Workspace, Microsoft 365, HubSpot, Meta, Mailchimp), you are responsible for:
97.1. providing timely access at appropriate permission levels;
97.2. ensuring your users keep credentials secure and use multi-factor authentication where available; and
97.3. maintaining the security and administration of your accounts.
98. We are not responsible for any loss arising from unauthorised access to your accounts caused by your users, your systems, compromised credentials, or third-party provider security failures, except caused by our negligent acts, subject always to the limitation of liability provisions of this agreement.
Suspension for Security / Compliance Risk
99. We may suspend the Services immediately on written notice if we reasonably believe that:
99.1. continuing to provide the Services may compromise the security of systems or data;
99.2. you have requested us to process data unlawfully; or
99.3. a third-party platform or your environment is infected, compromised, or otherwise creates a material security risk.
100. We will use reasonable efforts to restore Services once the issue is resolved. Suspension under this clause does not affect your obligation to pay Fees properly incurred.
Data Processing Addendum Option
101. If required by you or a third party, the parties may enter into a separate Data Processing Addendum addressing processing of Personal Information (including security measures and cross-border transfers). If there is any inconsistency, the Data Processing Addendum prevails to the extent of the inconsistency.
Artificial Intelligence and Automation Tools
102. We may use automation and artificial intelligence-enabled tools to assist with providing the Services (for example, summarising information, drafting copy, or analysing performance).
103. Unless you instruct us otherwise in writing, you authorise us to input Client Content into such tools only where reasonably necessary to provide the Services.
104. We will take reasonable steps to select and configure any artificial intelligence tools in a manner intended to protect the confidentiality of Client Content and limit its reuse.
105. You acknowledge that outputs generated using artificial intelligence tools may contain errors or omissions and may not be complete or accurate. You are responsible for reviewing, verifying, and approving all outputs before use, particularly where they relate to legal, compliance, or regulated matters.
Confidentiality
106. Each party agrees to keep confidential and not to use or disclose, except as permitted by these terms of engagement, any Confidential Information of the other party. The parties agree not to disclose any details of a Proposal. This obligation of confidence extends to Confidential Information obtained by a party before entering into this Agreement.
107. The obligation of confidence in clause 106 above does not apply to Confidential Information to the extent that is required to be disclosed by law or the rules of any stock exchange on which the recipient’s securities are listed, provided that the recipient discloses the minimum amount of Confidential Information required to satisfy the law or rules.
108. The Party required to disclose the other Party’s Confidential Information as set out in clause 107 must:
108.1. provide a reasonable amount of notice to the other Party of the proposed disclosure;
108.2. consult with the other Party as to the form of the disclosure; and
108.3. take all reasonable steps to maintain such Confidential Information in confidence.
109. Each party must take all steps and do all such things as may be necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the other party.
GST
110. Unless we expressly state otherwise, the Fees and Additional Costs do not include GST, which shall be payable in addition to the Fees and Additional Costs estimated, quoted or charged.
111. If at any time we decide that GST is payable on supplies made by us, or if the New Zealand Inland Revenue assesses GST on any such supplies, then the necessary amount will be added to, and form part of, the Fees or Additional Charges (as the case may be) at the GST rate prevailing at the relevant time.
112. We reserve the right to recover from you at any time such an amount on account of GST on supplies made by us to you under this agreement.
Non-solicitation
113. You must not hire or employ or attempt, directly or indirectly, to hire or employ any person currently or formerly employed by or contracted to Data Story to work for you or for any other service provider to you, until six months after the date that person ceased working for or with Data Story.
114. Without prejudice to our other rights and remedies under this Agreement or at law, if any breach of clause 113 above occurs:
114.1. you will be liable for an amount equal to 12 months salary or contract payments otherwise payable to the relevant employee or contractor, calculated at the average rate paid to that person in the three months before that person was solicited by you; and
114.2. we will be entitled to an extension of time to complete any task affected by the non-availability of the person solicited.
General
115. Any notice given under this agreement must be in writing, addressed to the other party’s contact persons as notified by the other party.
116. This agreement does not create a relationship of employment, agency or partnership between the parties.
117. We may subcontract our obligations under this agreement.
118. The failure of a party at any time to insist on performance by the other party of an obligation under this agreement is not a waiver of any of its rights.
119. If part or all of any of the provisions of this Agreement is illegal or unenforceable, it will be severed from this Agreement, and will not affect the continued operation of the remaining provisions.
New Zealand Law Applies
120. This agreement and the provision of the Services by us are governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the courts and Disputes Tribunal of New Zealand. All disputes in connection with this agreement and the provision of our Services may only be brought before a New Zealand court or Disputes Tribunal or before our dispute resolution provider in New Zealand.
121. For the avoidance of doubt clause 120 applies regardless of the jurisdiction that you operate in or the jurisdiction within which you will use our Services.
Interpretation
122. a reference to “this agreement” means these terms of engagement together with a Proposal (if any);
123. headings and bold type are for convenience only and do not affect the interpretation of these terms;
124. the singular includes the plural and the plural includes the singular;
125. words of any gender include all genders;
126. other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning, unless the context clearly requires otherwise;
127. an expression importing a person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency as well as an individual;
128. a reference to any legislation includes all delegated legislation made under it, and amendments, consolidations, replacements or re-enactments of any of them;
129. a reference to a party includes that party’s successors and permitted assignees;
130. a promise on the part of 2 or more persons binds them jointly and severally;
131. no provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
132. specifying anything in this agreement after the words “include” or “for example” or similar expressions does not limit what else is included.
Dictionary
Additional Costs means all additional costs for Services over and above the Fees or other costs specified in the Purchase Order, Proposal or other document addressing costs or Fees for the relevant Services.
Bug means a defect or error in the operation of the software/website or failure of the software/website to comply with the Specifications but does not include matters relating to your preference with respect to the design of the software/website.
Claim means a demand, action or proceeding of any nature, whether actual or threatened.
Client,you or your means, in relation to any work that we do for you:
a. the person named as the Client in the Proposal or Purchase Order;
b. if there is no Proposal, then the person for whom we are undertaking the Services.
Client Content is defined in clause 26.
Client Deliverables is defined in clause 63.
Confidential Information of a party means any information:
a. regarding that party’s business or affairs;
b. regarding that party’s customers, employees, or other people doing business with that party;
c. which is by its nature confidential;
d. which is designated as confidential by that party at the time of disclosure or within 14 days after disclosure; or
e. which the other party knows or ought to know is confidential;
f. includes without limitation (unless excluded under paragraph (c) that party’s Intellectual Property Rights and these Terms of Engagement; but
g. does not include information to the extent that information is developed or known by the other party independently of this agreement and independently of any obligation of confidence (including because it is in the public domain).
Data Story, we or us means Data Story Limited
Data Story Materials is defined in clause 64.
Fees means the Fees payable to us for Services charged on the basis of our current hourly rates, unless otherwise agreed.
GST means a goods and services tax or similar tax levied in New Zealand.
Intellectual Property Rights means all industrial and intellectual property rights anywhere in the world, including:
a. copyright, patents, trademarks, plant breeder’s rights, rights in circuit layouts, registered designs and any right to have confidential information kept confidential; and
b. any application or right to apply for registration of any of the rights referred to in a.
Loss means:
a. any liability, cost, expense, loss, personal injury (including illness), death or damage; and
b. in relation to a Claim, Loss includes amounts payable on the Claim and (whether or not the Claim is successful), legal costs and disbursements on a full indemnity basis.
Moral Rights are the rights referred to in section 94 of the Copyright Act 1994, and includes any similar rights in any jurisdiction outside New Zealand.
Personal Information has the meaning given in the Privacy Act 2020.
Proposal means a Proposal or an estimate that we provide to you in respect of any work that you have asked us to do.
Security Incident means any suspected or actual unauthorised access, disclosure, loss, or other misuse of Personal Information handled in connection with the Services.
Services means, in relation to any work that we do for you:
a. described in a Proposal; or
b. if there is no Proposal, then the work that you have asked us to do.
Specifications means specifications for the work that you have asked us to do, and agreed in writing by us.
Survey Services is defined in clause 79.
Variation means changes to the Proposal and/or Specifications or any unplanned delays or additional project time due to unforeseen reasons beyond our reasonable control, as described in clause 19 and elsewhere in these terms of trade.
Warranty Period is defined in clause 43.
