Definitions
In these conditions:
“we”, “our”, “us” and “Acquire” are references to DigiLowCost (Asia Pacific) Limited trading as ‘Acquire’.
“Campaign” means an online advertising campaign covered by a Contract.
“Customer” is a reference to the person or company booking a Campaign with Acquire.
“Contract” means each agreement between Acquire and the Customer relating to a Campaign formed in the manner described below under the heading “Contracts”.
“IO” is the “Insertion Order” prepared by Acquire and, once signed by the Customer generates an Advertising Booking Confirmation.
“Material” is a reference to all material, including electronic material or data provided by the Customer to Acquire for publication.
“Terms” means the terms and conditions set out in this document.
Contacts
When a Customer signs an IO the Customer and Acquire agree to the terms and conditions set out in the IO and also these Terms, all of which are recorded in the Advertising Booking Confirmation.
Acquire reserves the right to change these Terms from time to time. Any such alteration to these Terms shall not affect any Contract formed prior to the relevant alteration being made.
A Contract may only be varied by agreement in writing between duly authorised representatives of both Acquire and the Customer.
Customer Material
The Customer warrants that the Material does not contain anything that:
- is misleading or deceptive or likely to mislead or deceive or which otherwise breaches the Fair Trading Act 1986;
- is defamatory or indecent or which otherwise offends against generally accepted community standards;
- infringes a copyright or trademark or otherwise infringes any intellectual or industrial property rights;
- breaches any right of privacy or confidentiality; or
- breaches any provision of any statute, regulation, by-law or other rule or law.
The Customer warrants that all Material complies in every way with the Advertising Codes of Practice issued by the Advertising Standards Authority Inc. (“ASA”) and with every other code or industry standard relating to advertising in New Zealand.
The Customer agrees to indemnify us against all losses, claims or costs arising directly or indirectly from publication of the Material, whether such losses, claims or costs relate to a breach of one or more of the warranties in these terms, the obligations of the Customer as set out in these Terms or otherwise.
All Material must confer to the Acquire advertising specifications supplied or as detailed in the “Ad Specs” tab on our website at www.acquireonline.co.nz/ad-specs. The Customer is responsible for any costs incurred by us in our making corrections or amendments in accordance with these Terms.
We must receive creative Material files which comply with all such specifications and information from the Customer in an acceptable form including a click-through URL no later than five (5) working days prior to the commencement of a Campaign. This is required so online advertising can be approved for placement by Acquire’s Demand Side Platforms (“DSPs”) network partners. We may require that Material is corrected or amended to conform to style, or for other genuine reasons advised by the DSPs.
The Customer is responsible for delays in Campaigns caused by the Customer, whether due to the late delivery of creative Material, delays caused by the requirement for Material to be corrected or amended or otherwise. Where such delays occur, the Campaign will be deemed for invoicing purposes to have begun on the original start date specified in the Contract.
We may refuse to place, or may withdraw Material without having to give a reason.
We may place the Material at a time different from that originally booked if there is an error or delay in placement of the Material as booked.
The positioning or placing of any Material online is at our discretion except where specifically agreed in writing.
The Customer must tell us as soon as possible if there is an error or omission in any Material supplied to us.
Campaigns
Each Contract will outline projected advertising impressions, clicks and possibly conversions. Whilst we will do everything possible to achieve these projected metrics, we are not bound to a guarantee to deliver these projected metrics. In the event we reasonably believe that any campaign is underperforming, we may in our discretion, change the placement of material from that specified in the Contract provided that it is placed on websites that will optimise the Campaign’s performance in relation to projected metrics.
Campaign advertising impressions, clicks and possibly conversions will be counted and recognised by the DSP’s ad-serving engines. A third party ad serving engine may also be used but its impression count won’t be recognised unless we agree otherwise in writing.
If a Campaign is paused for any reason, unless specifically advised otherwise by the Customer, once the pause requirement is lifted, the remaining Campaign monies will be reinvested and amortised evenly across the agreed time left to the end of the Campaign period as instructed in the Contract.
The Customer acknowledges and agrees that an agreed budget for a Campaign relates to the budgeted spend over the entire duration of the Campaign and that actual expenditure in each month of the Campaign may be more or less than the amount budgeted for that month. Where such variances occur Acquire will adjust the budget for the remainder of the Campaign accordingly.
Cost per Acquisition (“CPA”) Campaigns
In order to mutually agree to move to a CPA Campaign metric, Acquire will require a trial Campaign of 2-3 months to be continuously run on a click basis. Acquire will monitor and report on the trial Campaign, optimising on agreed conversion metrics (e.g. a sale, a completed application form, or an enquiry) The source and definition of conversion metrics (e.g. post view or post click) will also be agreed prior to the trial Campaign period. This data over the trial Campaign period will then equip Acquire with the necessary information to set a ‘guaranteed dollar CPA’. This figure will be reviewed after one or more periods we agree with the Customer as the Campaign continues to optimise.
Payment terms
Customers are required to pay invoices issued by Acquire no later than the last day of the month following the date of the invoice.
The Customer may not withhold any payment or make any deductions from the invoiced amount without our prior written consent. Any dispute relating to an invoice issued by Acquire must be notified to Acquire by the Customer in writing prior to the last day of the month following the date of that invoice (time being of the essence). If no such notification is made then the Customer shall be deemed to have accepted that the relevant invoice is correct in all respects.
Where the Customer is recognised by us as an advertising agency, we will pay agency commission in an amount equivalent 15% of the invoiced amount (excluding GST). Commission payments will be made by us within a reasonable time after the corresponding invoice has been paid in full. We may decide not to make payment of commission under this clause in the event that the invoice is not paid in full by the due date for payment.
Our invoices may show prompt payment discount equivalent to 5% of the invoiced amount (excluding GST). Failure to pay the invoice by the due date for payment will result in forfeiture of the prompt payment discount.
The Customer may be required by Acquire to pay interest on overdue or unpaid invoices from the due date for payment until the date payment in full is received calculated on a daily basis at the rate of 2.5% per calendar month.
If payment for advertising is not made by due date Acquire may (in addition to interest and without prejudice to any other remedies we may have) charge the Customer for all expenses and costs (including legal costs as between solicitor and client) in connection with Acquire recovering or attempting to recover any overdue amount.
Non NZ Resident Customers
All Campaigns run for non NZ resident customers will require 100% of Campaign monies upfront and received & cleared into our bank account before a Campaign can start. This will continue at the discretion of Acquire until a trading track record satisfactory to us has been established and/or a positive credit check has been received.
Advertising placed by Customers who are not New Zealand residents will be zero-rated for GST purposes, provided that GST will be applied at the standard rate to advertising placed by non-resident agents acting for New Zealand resident principals.
Contract Cancellation policy
The Customer may cancel a Contract where the Customer adheres to the following terms and conditions:
- Cancellations will be effective from the later of the date that written notice is given by the Customer to Acquire and the date that the relevant proportion of the Campaign cost (as set out below) is paid to Acquire (“Effective Date”).
- If the Effective Date is 30 or more days prior to the start date of the Campaign the Customer will not be required to pay any proportion of the Campaign cost.
- If the Effective Date is less than 30 days and more than 7 days prior to the start date of the Campaign, the Customer must pay 50% of the Campaign cost.
- If the Effective Date is less than 7 days prior to the start date of the Campaign but before such start date, the Customer must pay 75% of the Campaign cost.
- If notice of cancellation is given on or after the start date of the Campaign, the Customer must pay 100% of the Campaign cost.
Warranties
Except for any rights the Customer may have under any express term of a Contract, all guarantees, warranties, descriptions, representations or conditions whether expressed or implied by law, trade, custom or otherwise are expressly excluded to the fullest extent permitted by law.
The Customer agrees that the Consumer Guarantees Act 1993 (“CGA”) does not apply to any goods or services which are acquired by the Customer under a Contract for business purposes.
Where Goods or Services are not acquired by the Customer for business purposes: (a) the Customer acknowledges that we do not provide any Express Guarantee (as defined in the CGA) other than those expressly confirmed by us in writing; and (b) we reserve the right to replace any goods, or re-perform any services, which fail to comply with any guarantee contained in the CGA.
Nothing in these Terms is intended to have the effect of contracting out of the provisions of the CGA except to the extent permitted by that Act, and these Terms are to be modified to the extent necessary to give effect to the intention.
Liability
Notwithstanding any other provision of a Contract, under no circumstances will Acquire be liable for any loss of income or profits or any consequential, indirect or special damage or injury of any kind suffered by the Customer or any other person.
To the extent that the liability of Acquire under a Contract is not otherwise limited or excluded and to the extent permitted by law, the total liability of Acquire whether in tort (including negligence), contract or otherwise, for any loss, damage or injury arising directly or indirectly from any defect in the goods or services supplied or any breach of Acquire’s obligations under a Contract shall be limited to the lesser of the cost of the advertising space for the relevant Material placed online (where the breach relates to Material placed online) or the Campaign cost.
General
The Customer acknowledges that it has not relied on any representation made by or on behalf of Acquire in connection with the advertising other than as expressly set out in a Contract.
We will not be in breach of our obligations under a Contract if, due to inevitable accident, Act of God, fire, strikes, lockouts or other labour interferences, riots, war or any cause beyond our reasonable power or control, Acquire is prevented from performing such obligations.
If Acquire exercises or fails to exercise any right or remedy available to it, this shall not prejudice our rights in exercising that or any other right or remedy.
The Customer must not transfer or assign its rights or obligations under a Contract to anyone else without our prior written consent.
Each Contract constitutes the entire agreement, understanding and arrangement (express and implied) between the parties relating to the subject matter of that Contract and supersedes and cancels any previous agreement, understanding or arrangement in relation to that subject matter whether written or oral.
Contracts shall be governed by and construed in accordance with the laws of New Zealand and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.