Term of engagement

Data Story - Terms of Engagement

Data Story Limited (we/us) are a digital agency that uses data to systematically measure & improve marketing performance. Our crew are all on board with the mission: drive your growth through data-driven digital.

We value our relationship with our clients (you) and believe that it is important that you are aware of the terms that we will provide our Services to you.

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Services Terms of Engagement

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.

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.

These terms of engagement are subject to change and we may modify these terms of engagement at any time, by notifying 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.

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1. Engagement

1. You may engage us to carry out a services to you by:

agreeing to and signing a written Proposal; or
providing an authorised Purchase Order; or
through written or verbal verification.

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2. Services

1. You acknowledge that the marketing services provided by Data Story is 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.

2. 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.

3. 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.

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3. Fees

1. Unless we agree otherwise in writing, our Fees will be charged on the basis of our current hourly rates, which shall be subject to change from time to time without notice. Information on our current hourly rates is available at all times on request by you.

2. Unless stated otherwise, any estimate or hourly charge out rate specified to you does not include GST.

3. Disbursement charges are not included in the Fees. If we incur any disbursements or expenses during the course of the Project/Services, we will charge these to you as Additional Costs.

4. Travel time is not included in our quotations as the Data Story office is our preferred location as it is appropriately set up for meetings and presentations. If you would prefer meetings at your office or any other location additional Fees may apply.

5. You must pay the Fees and Additional Costs to us on the 20th of the following month of which the invoice relates to. All payments must be in cleared funds without deduction or set-off.

6. 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 on a daily basis 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.

7. 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.

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4. Proposals

1. If we provide you with a written Proposal, then that Proposal:

is based on the Specifications outlined in the written Proposal, and is subject to change if the parties agree to amend the Specifications; and

is valid and able to be accepted for a period of 30 days, unless otherwise agreed by us.

2. On request, we will provide an estimate for our Services. If during the course of our engagement additional work is required to provide Services that an estimate is provided for, we will contact you and provide an estimate of the additional Fees to be charged. Where possible, we will attempt to obtain approval from you prior to undertaking the additional work required. However, in some cases due to deadline and availability constraints, this may not be possible, and we may proceed with the additional work without obtaining approval and you will be liable for all additional Fees beyond the estimate provided.

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5. Variations

1. If during the course of our engagement there are changes in the Specifications or unplanned delays or additional project time due to unforeseen reasons beyond our reasonable control, these will be treated as a Variation.

2. Where a Variation occurs, Data Story reserves the right to halt work and review the Fees for the Proposal. We will discuss the variation with you and where required will issue an amended written Proposal which is to include the basis for the variation and any associated increase in the Fees. We will not proceed with the Services until we receive your written approval to proceed. If you do not give written approval of the Variation and to proceed within 7 days, then the agreement and Proposal may be terminated.

3. Examples of Variations include:

introduction of additional requirements not discussed during the discovery stage i.e. branding deliverables, introduction of video requirements, data entry required;
changes in the Specifications during the design stage i.e. additional pages requiring design, additional design elements/features etc.;
additional pages, features, functionality etc. required / introduced in the development/technology stage;
customisation of the CMS or building an extension not specified in the approved design, Specifications or database schema/architecture;
additional project management time;
unplanned delays in obtaining approval, Client Content or feedback resulting in Data Story having to reschedule projects, staff or facilitate continuance;
overtime required to meet deadlines due to delays by you providing approval, Client Content or feedback.

4. 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.

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6. Content and Materials Supplied by You

1. 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.

2. You acknowledge that if Client Content is not provided by an agreed time or within a timely manner this may delay any Services provided by us to you. We shall not be liable for any loss caused to you on account of such delay.

3. You warrant that the materials or content you provide to us, or that are provided to us on your behalf, will not

breach any rights (including Intellectual Property Rights or Moral Rights) of any third party; or

compromise the security or operation of our computer systems, through a virus or otherwise.

4. 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.

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7. Purchase of Stock Images, Fonts, Photography, Audio or Video

1. 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.

2. 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.

3. 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.

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8. Third Party Software

1. We may provide third-party software as part of our services.

2. Unless specified in the Proposal, an estimate of Fees does not include any third-party software.

3. You acknowledge that:

we have limited control over the functionality or operation of any third-party software;

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;

you accept and must comply with the Terms of Engagement of the third-party software providers; and

those third-party software providers may invoice you directly for ongoing costs relating to your use of the Software.

2. 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.

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9. Warranty Period for websites and software products

1. Data Story provides a 20 business day period for client testing of software products or websites that we develop on your behalf.

2. 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 the Project is handed over for client testing (Warranty)

3. Extended warranty periods can be negotiated and will be outlined in the Specifications of any Proposal.

4. It is your responsibility to review and test the software/website and ensure you are satisfied with it during the Warranty period.

5. When 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 open source software products are error-free. Any work required to address bugs, version or system updates, is not included in the Warranty.

6. 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.

7. 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.

8.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.

9. Data Story will at its sole discretion determine the extent of labour required to perform its obligations under this clause.

10. For the avoidance of doubt this clause 9 does not apply to any marketing Services provided by us that is not website or software development.

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10. Domain Names

1. Data Story does not represent or warrant the availability, suitability or ability to register any domain name.

2. 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.

3. You must not transfer a domain name to another internet service provider unless you have first paid all Data Story Fees in full.

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11. Warranty Disclaimer

1. Nothing in this 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.

2. 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 or merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title of non-infringement.

3. 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.

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12. Limitation of liability

1. To the fullest extent permissible by law, Data Story is not liable (whether in contract or tort) for:

faults or defects in any services or goods provided by third parties in connection with the Services; or
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.

2. To the fullest extent permissible by law, in no event will Data Story 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 Service;

3. To the fullest extent permitted by law, the liability of Data Story for a breach of a this agreement is limited to:

in the case of the provision of services:

the supplying of the services again; or
payment of the cost of having the services supplied again.

in relation to goods:

the replacement of the goods or the supply of equivalent goods;
the payment of the cost of replacing the goods or acquiring equivalent goods; or
the repair of the goods or the payment of the cost of having the goods repaired.

4. 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.

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13. Indemnity

1. 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:

any breach of this agreement by you;
your negligent acts or omissions; or
your use of the Services, including any third party claims made in connection with or arising out of your use of the Service, other than use in accordance with this agreement.

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14. Intellectual Property and Supply of Raw / Editable files

1. All Intellectual Property Rights in Project Intellectual Property vest in, or will upon their creation vest in Data Story unless agreed otherwise in writing.

2. We grant you a non-transferable, non-exclusive license to:

publish one copy of the Project and supporting Project Intellectual Property unless otherwise stated by Data Story; and
use and reproduce the other Project Intellectual Property;
subject to the restrictions set out in sub-clause (3) below.

3. You must not, without our prior written consent:

adapt, create derivative works from or merge the template or other Project Intellectual Property;
use the Project Intellectual Property for any purpose other than the specific purpose for which we have provided it;
reverse engineer, disassemble or decompile the Project Intellectual Property;
distribute, lend, resell, transfer, assign or sublicense the Project or other Project Intellectual Property, or allow any other person to use it except in the course of visiting the Project; and
remove or attempt to remove any proprietary or copyright notices or any labels on the Project or other Project Intellectual Property.

4. The supply of raw / editable files is at the discretion of Data Story. Additional Costs may apply, and may be based upon a percentage of the original Proposal, or a retrieval and release fee.

5. We do not warrant that your use of the designs, materials or content produced by us for you in the course of the Project 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.

6. You agree to carry Data Story logo or text hyperlink describing the nature of the service provided e.g. ‘Website Design and Development by Data Story' in or under the website footer.

7. You agree to allow Data Story to use the Services provided for promotional and portfolio purposes.

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15. Confidentiality

1. 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 Purchase Order or Proposal. This obligation of confidence extends to Confidential Information obtained by a party before entering into this Agreement.

2. The obligation of confidence in sub-clause (1) 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.

3. The Party required to disclose the other Party’s Confidential Information as set out in sub-clause (2) must:

provide a reasonable amount of notice to the other Party of the proposed disclosure;
consult with the other Party as to the form of the disclosure; and
take all reasonable steps to maintain such Confidential Information in confidence.

4. 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.

16. GST

1. 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.

2. 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.

3. 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.

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17. Non-solicitation

1. 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.

2. Without prejudice to our other rights and remedies under this Agreement or at law, if any breach of sub-clause (1) above occurs:

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
we will be entitled to an extension of time to complete any task affected by the non-availability of the person solicited.

18. General

1. Any notice given under this agreement must be in writing, addressed to the other party’s contact persons as notified by the other party.

2. This agreement does not create a relationship of employment, agency or partnership between the parties.

3. We may subcontract our obligations under this agreement.

4. 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.

5. 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.

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19. New Zealand Law Applies

1. This agreement and the provision of the Services by us is governed by New Zealand law and only the New Zealand courts Disputes Tribunals or our Dispute Resolution Provider in 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.

2. For the avoidance of doubt clause (1) applies regardless of the jurisdiction that you operate in or the jurisdiction within which you will use our Services.

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20. Interpretation

1. a reference to “this agreement” means these terms of engagement together with a Purchase Order or Proposal (if any);

2. headings and bold type are for convenience only and do not affect the interpretation of these terms;

3. the singular includes the plural and the plural includes the singular;

4. words of any gender include all genders;

5. 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;

6. 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;

7. a reference to any legislation includes all delegated legislation made under it, and amendments, consolidations, replacements or re-enactments of any of them;

8. a reference to a party to a document includes that party’s successors and permitted assignees;

9. a promise on the part of 2 or more persons binds them jointly and severally;

10. 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

11. specifying anything in this agreement after the words “include” or “for example” or similar expressions does not limit what else is included.

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‍21. Dictionary

Additional Costs means all additional costs for a Project over and above the Fees or other costs specified in the Purchase Order, Proposal or other document addressing costs or Fees for the relevant Project.

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:

1. the person named as the Client in the Purchase Order;

2. if there is no Purchase Order, then the person named as the Client in the Proposal; or

3. if there is no Proposal, then the person for whom we are undertaking the Project.

Client Content is defined in clause 6.

Confidential Information of a party:

(a) means any information:

regarding that party’s business or affairs;
regarding that party’s customers, employees, or other people doing business with that party;
which is by its nature confidential;
which is designated as confidential by that party at the time of disclosure or within 14 days after disclosure; or
which the other party knows or ought to know is confidential;

(b) includes without limitation (unless excluded under paragraph (c) that party’s Intellectual Property Rights and these Terms of Engagement; but

(c) 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

Fees means the Fees payable to us for the Project and/or 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.

Project means, in relation to any work that we do for you:

(a) the project described in a Purchase Order;

(b) if there is no Purchase Order, the project described in a Proposal;

Project Intellectual Property means designs, artwork, software and materials provided to you in the course of the Project, and any other Intellectual Property Rights created in the course of the Project, but does not include:

(a) the Content Management System (except to the extent that we have modified it);

(b) the Website Tools (except to the extent that we have modified them); or

Purchase Order means a document issued (in writing or electronically) by us to you that sets out:

(a) the Services that we will provided to you;

(b) the estimated times within which those Services will be provided; and

Proposal means a Proposal or an estimate that we provide to you in respect of any work that you have asked us to do.

Services means the Services that we provide to you with respect to any Project.

Specifications means specifications for the work that you have asked us to do, and agreed in writing by us.

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 5 and elsewhere in these terms of trade.

Warranty is any fix required to be supplied by Data Story as outlined in clause 9.