BIG THINKING BUSINESS TERMS OF TRADE
1.1 “PROMOTER” means Big Thinking Business Limited, its successors and assigns or any person acting on behalf of and with the authority of Big Thinking Business Limited.
1.2 “Customer” means the person/s or any person acting on behalf of and with the authority of the Customer who registers online with the PROMOTER to provide the Services as specified on the PROMOTER’s website, quotation, order, invoice or other documentation, and:
(a) if there is more than one Customer, is a reference to each Customer jointly and severally; and
(b) if the Customer is a part of a trust, shall be bound in their capacity as a trustee; and
(c) includes the Customer’s executors, administrators, successors and permitted assigns.
1.3 “PARTNER” means the person/s, agent or venue (a third party unrelated to the PROMOTER) who is part thereof, an Event organised by the PROMOTER that requests the PROMOTER to provide Services, as specified in any invoice, document or order, and if there is more than one PARTNER requesting the Services, is a reference to each person jointly and severally.
1.4 “Party” means the PROMOTER or PARTNER as the context dictates.
“Services” means the PROMOTER provides Event publishing, guest speakers, Event registrations for PARTNERS and/or the Customer, online registering systems, website content management, database Customer relationship management software and Services via the internet and mobile device and are as described on the invoices, or any other forms as provided by the PROMOTER to the PARTNER.
1.5 “Booking Schedule” means a document (either hardcopy or electronic) which includes details pertaining to the Fee.
1.6 “Equipment” shall mean all Equipment including any accessories supplied on hire by the PROMOTER to the Customer (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, hire form, or any other authorisation form provided by the PROMOTER to the Customer.
1.7 “Event” is any Events, functions, activities, or resources to which the PROMOTER is authorised to sell or provide access.
1.8 “Event Content” means information; images, and other content posted using the PROMOTER’s website by the PROMOTER.
1.9 “Event Page” means a webpage the PROMOTER creates that includes Event Content, terms and conditions for purchase, registration and booking functionality that can be accessed via a web browser or mobile device web browser.
1.10 “Mobile Device” means a mobile phone or other mobile device, including personal digital organisers and laptop computers.
1.11 “Web Site” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
1.12 “Prohibited Content” means any content on any advertising media that:
(a) is, or could reasonably be considered to be, in breach of the Broadcasting Act 1989 (Cth); the Consumer Guarantees Act 1993 (Cth); or any other applicable law or applicable industry code; or
(b) contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
(c) is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights.
1.13 “Fee” means the Fee payable (plus any Goods and Services Tax (“GST”) where applicable) for the Services as agreed between the PROMOTER and the Customer in accordance with clause 4 of this Agreement.
1.14 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Agreement, a Party’s Intellectual Property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, PROMOTER’S information and Fee details.
1.15 “Agreement” means this document and includes any subsequent Appendix or Schedules to form the entire Agreement.
2.1 This Agreement and the relevant Schedule constitute the entire Agreement between the Parties with respect to its subject matter. It supersedes all previous proposals, both oral and written, negotiations, representations, writings and all other communications between the Parties. If there are any inconsistencies between the documents then the terms and conditions contained in this document shall prevail.
2.2 The PARTNER and/or the Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions, if the PARTNER and/or the Customer places an order for placement or registration to an Event, or accepts any Services provided by the PROMOTER.
2.3 These terms and conditions may only be amended with the consent of both parties in writing and shall prevail to the extent of any inconsistency with any other document or Agreement between the Customer and the PROMOTER.
2.4 None of the PROMOTER’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the Director of Big Thinking Business Limited in writing nor is the PROMOTER bound by any such unauthorised statements.
2.5 Any advice, recommendations, information, assistance or service provided by the PROMOTER in relation to Services provided is given in good faith, is based on information provided to the PROMOTER, and the PROMOTER’s own knowledge, and experience. Whilst it shall be the responsibility of the Customer to confirm the accuracy and reliability of the same in light of the use to which the Customer makes or intends to make of the Services.
2.6 The PARTNER warrants that it has not relied on any representation made by the PROMOTER which has not been stated expressly in this Agreement or upon any descriptions or illustrations or specifications contained in any document, including any catalogues or publicity material produced by the PROMOTER.
2.7 The PARTNER and/or Customer acknowledges and agrees that any expected or estimated outcomes concerning increased sales or market share or penetration to be achieved by the PARTNER and/or Customer derived from the Services provided by the PROMOTER expressed in consultation or quotations, are speculative and in no way constitute a guarantee.
2.8 Electronic signatures shall be deemed to be accepted by either Party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Change in Control
3.1 The PARTNER shall give the PROMOTER not less than fourteen (14) days prior written notice of any proposed change of ownership of the PARTNER and/or any other change in the PARTNER’s details (including but not limited to, changes in the PARTNER’s name, address, and contact phone or fax number/s, change of trustees or business practice). The PARTNER shall be liable for any loss incurred by the PROMOTER as a result of the PARTNER’s failure to comply with this clause.
4. Fee and Payment
4.1 At the PROMOTER’s sole discretion the Fee shall be either:
(a) as indicated on any invoice provided by the PROMOTER to the PARTNER and/or the Customer; or
(b) the Fee as at the date of delivery of the Services according to the PROMOTER’s current price list; or
(c) detailed in the Booking Schedule and as agreed upon by both Party’s (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 The PROMOTER reserves the right to change the Fee, if a variation to the PROMOTER’s quotation is requested. Variations will be charged for on the basis of the PROMOTER’s quotation, and will be detailed in writing, and shown as variations on the PROMOTER’s invoice. The PARTNER shall be required to respond to any variation submitted by the PROMOTER within ten (10) working days. Failure to do so will entitle the PROMOTER to add the cost of the variation to the Fee. Payment for all variations must be made in full at the time of their completion.
4.3 Time for payment for the Services being of the essence, the Fee will be payable by the PARTNER on the date/s determined by the PROMOTER, which may be:
(a) before delivery of the Services;
(b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the PARTNER by the PROMOTER.
4.4 Payment may be made by electronic/on-line banking, or by any other method as agreed to between the PARTNER and the PROMOTER.
4.5 The PARTNER shall not be entitled to set off against, or deduct from the Fee, any sums owed or claimed to be owed to the PARTNER by the PROMOTER nor to withhold payment of any invoice because part of that invoice is in dispute.
4.6 The PROMOTER and the PARTNER agree that where it is intended that the provision of Services shall not cease until:
(a) the PARTNER has paid the PROMOTER all amounts owing for the particular Services; and
(b) the PARTNER has met all other obligations due by the PARTNER to the PROMOTER in respect of all contracts between the PROMOTER and the PARTNER.
4.7 Receipt by the PROMOTER of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the PROMOTER’s ownership or rights in respect of the Services shall continue.
4.8 GST and other taxes and duties that may be applicable shall be added to the Fee except when they are expressly included in the Fee.
5. Delivery of Services
5.1 Any time specified by the PROMOTER for delivery of the Services is an estimate only and the PROMOTER will not be liable for any loss or damage incurred by the PARTNER as a result of delivery being late. However both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that the PROMOTER is unable to supply the Services as agreed solely due to any action or inaction of the PARTNER then the PROMOTER shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
6. Equipment Hire
6.1 The Equipment shall at all times remain the property of the PROMOTER and is returnable on demand by the PROMOTER. In the event that the Equipment is not returned to the PROMOTER in the condition in which it was delivered the PROMOTER retains the right to charge the PARTNER the full cost of repairing the Equipment. In the event Equipment is not returned at all the PROMOTER shall have right to charge the PARTNER the full cost of replacing the Equipment.
6.2 The PARTNER shall;
(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to take a lien over the Equipment.
(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance guidelines as advised by the PROMOTER to the PARTNER.
6.3 The PARTNER shall be liable for replacement costs if that Equipment is damaged, lost or stolen for any reason whilst under the PARTNER’s care, but the PROMOTER will be liable in the case that such Equipment is faulty or otherwise fails to perform its required functions.
7.1 The PROMOTER is under no circumstances liable for breakdown, malfunction or any issues associated with the technology applications provided to its PARTNER.
7.2 The PARTNER acknowledges and accepts that the PROMOTER is under no circumstances liable for the cancellation of Services which are provided by the PROMOTER to the PARTNER through any third party suppliers.
7.3 The PARTNER acknowledges and agrees that the PROMOTER shall not be held liable for any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of the PROMOTER.
8. Personal Property Securities Act 1999 (“PPSA”)
8.1 Upon assenting to these terms and conditions in writing the PARTNER acknowledges and agrees that:
(a) these terms and conditions constitute a security agreement for the purposes of the PPSA; and
(b) a security interest is taken in all Equipment and/or collateral (account) – being a monetary obligation of the PARTNER to the PROMOTER for Services – that have previously been supplied and that will be supplied in the future by the PROMOTER to the PARTNER.
8.2 The PARTNER undertakes to:
(a) sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the PROMOTER may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register;
(b) indemnify, and upon demand reimburse, the PROMOTER for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration charged thereby;
(c) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items and/or collateral (account) in favour of a third party without the prior written consent of the PROMOTER.
8.3 The PROMOTER and the PARTNER agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
8.4 The PARTNER waives its rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
8.5 Unless otherwise agreed to in writing by the PROMOTER, the PARTNER waives its right to receive a verification statement in accordance with section 148 of the PPSA.
8.6 The PARTNER shall unconditionally ratify any actions taken by the PROMOTER under clauses 8.1 to 8.5.
9. Security and Charge
9.1 In consideration of the PROMOTER agreeing to supply Services, the PARTNER charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the PARTNER either now or in the future, to secure the performance by the PARTNER of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
9.2 The PARTNER indemnifies the PROMOTER from and against all the PROMOTER’s costs and disbursements including legal costs of a solicitor and own client basis incurred in exercising the PROMOTER’s rights under this clause.
9.3 The PARTNER irrevocably appoints the PROMOTER and each director of the PROMOTER as the PARTNER’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the PARTNER’s behalf.
10. Intellectual Property
10.1 Where the PROMOTER has designed, drawn or developed concepts for the PARTNER, then the copyright in any such incidental items shall remain the property of the PROMOTER. Under no circumstances may such designs, drawings and documents be used without the express written approval of the PROMOTER.
10.2 The PROMOTER will maintain the PARTNER’s Event Content in a secure manner and prevent any unauthorised access or changes to this Event Content.
10.3 The Customer agrees that the PROMOTER may (at no cost) use for the purposes of marketing or entry into any competition, any Incidental Items which the PROMOTER has created for the PARTNER.
11. Limitation of Liabilities
11.1 The PARTNER agrees to indemnify and hold harmless the PROMOTER against any expense, loss or liability (including legal fees) in respect of any claims, or threatened claims, relating to the Event, Event Content or information offered in the PARTNER’s Event listings on the PROMOTER’S website.
11.2 If the PARTNER makes a claim against the PROMOTER for any act or omission by the PROMOTER relating to this Agreement whether the claim is based in contract, negligence or statue, the PROMOTER liability subject to clause 18.3 in respect of that is limited to the aggregate of the Fees and Charges paid to the PROMOTER in respect of the Event from which the claim arises.
11.3 The PARTNER acknowledges and accepts that the PROMOTER shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by the PROMOTER in the formation and/or administration of this Agreement; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the PROMOTER in respect of the Services.
11.4 In the event such an error and/or omission occurs in accordance with clause 11.3, and is not attributable to the negligence and/or wilful misconduct of the PROMOTER; the PARTNER shall not be entitled to treat this Agreement as repudiated nor render it invalid.
12.1 Subject to clause 12.2, each Party agrees to treat as confidential the other Party’s Confidential Information, and agree not to divulge it to any third party, without the other Party’s written consent.
12.2 Both Parties agree to:
(a) use the Confidential Information of the other Party only to the extent required for the purpose it was provided; and
(b) not copy or reproduce any of the Confidential Information of the other Party in any way; and
(c) only disclose the other Party’s Confidential Information to:
(i) employees and contractors who need access to the information and who have agreed to keep it confidential; and
(ii) its legal advisers and insurance providers if those persons undertake to keep such information confidential.
12.3 Either Party must promptly return or destroy all Confidential Information of the other Party in its possession or control at the other Party’s request, unless required by law to retain it.
12.4 Confidential Information excludes information:
(a) generally available in the public domain (without unauthorised disclosure under this Agreement); or
(b) required by law, any stock exchange or regulatory body to be disclosed; or
(c) received from a third party entitled to disclose it; or
(d) that is independently developed.
12.5 The obligations of this clause 11.1 shall survive termination or cancellation of this Agreement.
13. Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the PROMOTER’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the PARTNER owes the PROMOTER any money the PARTNER shall indemnify the PROMOTER from and against all costs and disbursements incurred by the PROMOTER in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the PROMOTER’s collection agency costs, and bank dishonour fees).
13.3 Further to any other rights or remedies the PROMOTER may have under this Agreement, if a PARTNER has made payment to the PROMOTER, and the transaction is subsequently reversed, the PARTNER shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the PROMOTER under this clause 11.1, where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the PARTNER’s obligations under this Agreement.
13.4 Without prejudice to the PROMOTER’s other remedies at law the PROMOTER shall be entitled to cancel all or any part of any order of the PARTNER which remains unfulfilled and all amounts owing to the PROMOTER shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the PROMOTER becomes overdue, or in the PROMOTER’s opinion the PARTNER will be unable to make a payment when it falls due;
(b) the PARTNER has exceeded any applicable credit limit provided by the PROMOTER;
(c) the PARTNER becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the PARTNER or any asset of the PARTNER.
14. Cancellation and Termination
14.1 Without prejudice to any other remedies the PROMOTER may have, if at any time the PARTNER is in breach of any obligation (including those relating to payment) under these terms and conditions the PROMOTER may suspend or terminate the supply of Services to the PARTNER. The PROMOTER will not be liable to the PARTNER for any loss or damage the PARTNER suffers because the PROMOTER has exercised its rights under this clause.
14.2 The PROMOTER may cancel these terms and conditions or cancel delivery of Equipment at any time before the Equipment is delivered by giving written notice. On giving such notice the PROMOTER shall repay to the PARTNER any sums paid in respect of the Fee. The PARTNER shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.3 If the PARTNER cancels the booking for which the PROMOTER is providing its Services then the PARTNER shall be liable to The PROMOTER for any losses or costs incurred by the PROMOTER (including, but not limited to, any loss of profits) up to the time of, or as a result of the cancellation, notwithstanding that at the PROMOTER sole discretion.
14.4 In the case of postponed, delayed or date changed Events, all registration sales prior to notification of such change will be offered an alternative event, only if no alternative event can be agreed upon will a refund be given.
14.5 In the case of a change in advertised speakers, all registered sales prior to the notification will be entitled to a refund unless the terms and conditions of sale exclude such a refund. In all cases where refunds are requested by patrons and the PROMOTER excludes or prevents such refund, and the patron undertakes a chargeback through their credit card supplier or bank, the PROMOTOER shall be liable for the chargeback.
15. Privacy Act 1993
15.1 The PARTNER authorises the PROMOTER or the PROMOTER’s agent to:
(a) access, collect, retain and use any information about the PARTNER;
(i) (including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing the Customer’s creditworthiness; or
(ii) for the purpose of marketing products and services to the Customer.
(b) disclose information about the Customer, whether collected by the PROMOTER from the Customer directly or obtained by the PROMOTER from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by the Customer.
15.2 Where the PARTNER is an individual the authorities under clause 15.1 are authorities or consents for the purposes of the Privacy Act 1993.
15.3 The PARTNER shall have the right to request the PROMOTER for a copy of the information about the PARTNER retained by the PROMOTER and the right to request the PROMOTER to correct any incorrect information about the PARTNER held by the PROMOTER.
16. Registered Customers and Privacy
16.1 The PROMOTER provides the PROMOTER’s website to Customer to register in accordance with a separate agreement with the PROMOTER (“the PROMOTER Customer Agreement”), which the PROMOTER may vary from time to time, which can be viewed accessible at http://www.bigthinkingbusiness.com/termsandconditions/.
16.3 The PROMOTER collects information about Customers when the Customers register using the PROMOTER’s Platform.
16.4 Both parties agree that in using and requesting any information from the Customers referred to in this clause 16.2, they will each comply with the requirements of the Privacy Act 1993, in respect of Personal Information as defined in the Privacy Act 1993. The PARTNER also agrees:
(a) to take all reasonable steps to protect the personal information of the Customer’s from misuse, loss and from unauthorised access, modification or disclosure;
(b) not to sell, rent or provide the Personal Information of the Customer’s to any third Parties; and
(c) to indemnify the other Party in respect of any claim, loss, liability or expense suffered or incurred by that Party arising out of or in connection with a breach of the obligations set out in this clause 16.4(c) in respect of Personal Information.
17. Email Address and Notices
17.1 Any communications under this Agreement shall be delivered first by reply confirmed email and are deemed delivered upon receipt confirmed by the email addressed Party at the email address provided in the Booking Schedule.
17.2 In respect of the PROMOTER, if you do not receive a reply receipt within forty-eight (48) hours you should contact the PROMOTER.
17.3 Notice will be deemed given:
(a) In the case of email by a reply confirmed receipt;
(b) In the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;
(c) In the case of posting, three (3) days after dispatch; or
(d) In the case of facsimile, upon receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission.
17.4 Either Party may change its nominated contact person and the address or facsimile transmission numbers for the purposes of this Agreement by giving written/email notice of such change to the other Party within fourteen (14) days of the change.
18. Force Majeure and Excusable Delays
18.1 Unless the performance by either party of its obligations under this agreement is delayed by the occurrence of a Force Majeure Event for a period of more than thirty (30) days (including but not limited to, any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party and such delay is excused under the foregoing provisions), no Force Majeure Event shall excuse permanent non-performance, but shall excuse only delays in performance and only to the extent that such delays are directly attributable to such clause. Should any Force Majeure Event delay performance for a period of more than thirty (30) days, either party may terminate and rescind this agreement upon providing seven (7) days’ notice to the other party. Notwithstanding, neither party shall be liable or responsible for any costs or damages attributable to failure or delay in performance arising out of any Force Majeure Event.
19.1 Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising hereunder, shall be submitted to, and settled by, arbitration in accordance with the Arbitration Act 1996 or its replacement(s).
19.2 Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the Consumer Guarantees Act 1993 and/or the Fair Trading Act 1986 (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
19.3 If the PARTNER is acquiring Services for the purposes of a trade or business, the PARTNER acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Services by the PROMOTER to the PARTNER.
19.4 The failure by either Party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that Party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.5 These terms and conditions and any contract to which they apply shall be governed by the laws of New Zealand and are subject to the jurisdiction of the Auckland Courts in New Zealand.
19.6 The PROMOTER may licence and/or assign all or any part of its rights and/or obligations under this Agreement without the PARTNER’s consent.
19.7 The PARTNER cannot licence or assign without the written approval of the PROMOTER.
19.8 The PROMOTER may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Agreement by so doing. Furthermore, the PARTNER agrees and understands that they have no authority to give any instruction to any of the PROMOTER’s sub-contractors without the authority of the PROMOTER.
19.9 The PARTNER agrees that the PROMOTER may amend these terms and conditions by notifying the PARTNER in writing. These changes shall be deemed to take effect from the date on which the PARTNER accepts such changes, or otherwise at such time as the PARTNER makes a further request for the PROMOTER to provide Services to the PARTNER.
19.10 Both Parties warrant that they have the power to enter into this Agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Agreement creates binding and valid legal obligations on them.