STANDARD TERMS & CONDITIONS FOR MEDIA SERVICES (NEW ZEALAND)
1. What are these terms and conditions?
1.1. These terms and conditions (“Terms”) and the Booking Form together form our agreement with you for the provision of the Services (“Agreement”). All other terms that you may seek to impose, or which are implied by law, custom, practice or course of dealing are excluded to the extent permitted by applicable law.
1.2. By using the Services and/or by confirming you wish to proceed with our Booking Form (usually by submitting the Booking Form), you agree to be bound by this Agreement. Each Booking Form accepted by us creates a separate Agreement between you and us. We may change these Terms at any time by posting the updated terms on our website at www.precisionmedia.co.nz or otherwise providing you with a copy of or link to the new terms. Unless stated otherwise, the updated Terms will apply for all Agreements entered into after the updated terms are posted on the website or provided to you (whichever is earlier). Importantly (but without limiting the foregoing), the terms may be updated between bookings, so you should always check the latest version of these Terms before submitting a Booking Form.
1.3. If you are entering into this Agreement on behalf of an advertiser, you warrant that you have all requisite power and authority to:
(a) enter into and perform this Agreement; and
(b) act on behalf of and bind the advertiser to the terms of this Agreement.
2. What do the capitalised terms mean?
2.1. In this Agreement:
“Activity” means any individual activity which you participate in under this Agreement which may include: (a) retail media (e.g. media inventory located on Foodstuffs Group store premises and its surrounds such as point-of-sale terminals and/or fixtures); (b) online and technological media (e.g. media on Foodstuffs Group websites and other websites owned or operated by a Foodstuffs Group member from time to time; (c) various forms of Foodstuffs Group direct media (e.g. mailings and/or coupons), and “Activities” will have a corresponding meaning;
“Booking Date” means the date the Booking Form is accepted by us following submission by you of a Booking Form (usually via a return email);
“Booking Form” means the Booking Form that you submit or approve to order the Activities we propose you participate in (we may refer to this as a 'booking contract' on documentation we send you);
“Code“ or “Codes” means the codes issued by the Advertising Standards Authority, and accompanying guidance, as amended or superseded by revised codes or guidance from time to time;
“Customer” means any person that purchases, acquires or otherwise receives consumer goods from a Foodstuffs Group member;
“dunnhumby” means dunnhumby New Zealand Limited;
“dunnhumby Group” means dunnhumby, dunnhumby Limited and any legal person that is a subsidiary of dunnhumby or dunnhumby Limited and includes any legal person over whom dunnhumby or dunnhumby Limited has control and also includes any legal person over whom dunnhumby or dunnhumby Limited has direct or indirect ownership of 50% or more of the voting share capital or the equivalent right under contract to control management decisions;
“Fees” means the fees payable for the Services as set out in the Booking Form or as otherwise agreed between us;
“Foodstuffs Group” means us, Foodstuffs (N.Z.) Limited, Foodstuffs Own Brands Limited, Foodstuffs North Island Limited, Foodstuffs South Island Limited, and any person that directly or indirectly controls, is controlled by or is under common control with us, Foodstuffs (N.Z.) Limited, Foodstuffs Own Brands Limited, Foodstuffs North Island Limited, Foodstuffs South Island Limited, and any franchisee of Foodstuffs North Island Limited or Foodstuffs South Island Limited;
"Grocery Act" means the Grocery Industry Competition Act 2023, as updated from time to time;
"Grocery Code" means the grocery supply code as defined in the Grocery Act, as updated from time to time;
“GST” means goods and services tax in terms of the Goods and Services Tax Act 1985, at the rate prevailing from time to time, including any tax levied in substitution for that tax;
“Intellectual Property Rights” means all intellectual property rights (including patents, rights to inventions, copyright and related rights, database rights, trade marks, goodwill, business names and domain names, rights in get-up and designs and the right to sue for passing off) whether registered or unregistered and all applications rights to apply for these rights and similar rights;
“Live Date” means the date on which the Activity is planned to go live to the public;
“Materials” means documents, equipment, reports, designs, drawings and all other documentation, materials and information;
“Services” means the services we provide in relation to each Activity as described in clause 3, together with any Materials provided to you as part of those services;
“we”, “our”, “us” “Foodstuffs” means Foodstuffs Precision Media Limited (NZCN 8383867);
“you” and “your” means you, the other party to the Booking Form. If the other party to the Booking Form is entering into this Agreement on behalf of another person (such as a media agency entering booking advertising on behalf of a client) “you” and “your” will be read as references to the advertiser, other than in respect of the warranty in clause 1.3); and
“Your Creative” means any artwork, footage or other creative you provide to us or otherwise create or contribute for use in an Activity or the Services. This could include: artwork and images developed for the Activity; your/the promoter's customer terms and conditions applying to any promotion or competition promoted as part of the Activity; and/or any labels or other promotional or creative materials applied to your products in connection with the Activity.
2.2. Use of the words “including”, “include”, “in particular” or any similar expression is illustrative and will not limit the words before them.
2.3. To the extent there is any conflict between these Terms and the Booking Form, the Booking Form prevails to the extent of the conflict.
3. What will we do?
3.1. We, together with dunnhumby, will work with you to implement and provide the Services. This may include, where applicable:
(a) proposing one or more Activities;
(b) liaising with you with respect to Your Creative, and any other artwork and copy relevant to an Activity, that we will publicly display or issue to Customers;
(c) using reasonable endeavours to: (i) print and mail or issue your desired volume of coupons (where the Activity/ies involves the issuing of coupons); and/or (ii) print and/or install and/or display and/or make available (as applicable) the volume of media agreed in the Booking Form, other than media you are responsible for printing and/or installing (such as Activity-specific labels or tags on your products);
(d) using reasonable endeavours to procure that any offer sponsored by you as part of an Activity is honoured by the relevant Foodstuffs Group members; and
(e) with respect to coupons, keeping books of account of all coupons sponsored by you and which are issued and redeemed at Foodstuffs Group stores by Customers, with such reports being used as the sole and final basis to calculate the fees payable by you.
4. What do you need to do to receive the Services?
4.1. You agree to comply with any reasonable instructions we give you and to provide any information, materials and assistance we may reasonably require (including but not limited to Your Creative if necessary for the performance of an Activity) within the timeframes we reasonably set. If you fail to meet your obligations on time, which results in us not being able to perform the Activity, then we will still be entitled to charge you the Fees.
5. What rights are you granted to use the Services?
5.1. In return for the payment of the Fees, we will provide the Services to you; and (b) grant you a non-exclusive, non-transferable license to use the Materials solely for your internal business purposes. We reserve any rights not expressly granted to you under this Agreement.
5.2. Without limiting Sections 5.1 or 6.1(b), you may share:
(a) any evaluation report we may prepare for you with dunnhumby, Foodstuffs North Island Limited or Foodstuffs South Island Limited; and
(b) conclusions, recommends and/or implications you derive from any evaluation report we may prepare for you (but not any actual sales data or behaviours attributable to Foodstuffs Group profiles) with any third parties (other than market research or data analysis agencies or consultancies) provided such third parties keep such information confidential in the manner set out in Section 13.
6. What restrictions apply to your use of the Services?
6.1. Except to the extent required by applicable law, you must not and must not allow any person to:
(a) export, combine or copy any data from the Services for use in any other service, database, application, document or report without our prior written consent; or
(b) use the Services for the benefit or on behalf of any person other than you.
6.2. Subject to Section 6.1 and the next sentence, you must include “Source: © dunnhumby [date]/Private & Confidential” clearly on each document you use which includes any information derived from the Services or any of dunnhumby’s or dunnhumby Limited’s confidential information. If requested by us, you must include “Source: © Foodstuffs [date]/Private & Confidential” (or similar as specified by us) on material which includes or is derived from any of our confidential information.
7. What assurances do we give in relation to the Services?
7.1. We promise to comply with applicable laws (including the Grocery Act and Grocery Code) when providing the Services and that your use of the Services as permitted by this Agreement will not infringe another person’s Intellectual Property Rights.
7.2. We will use reasonable care and skill to provide the Services materially in accordance with and subject to this Agreement.
7.3. You acknowledge that our ability to provide any particular Activity is contingent on:
(a) it complying with our then current commercial requirements, procedures and/or store policies (including any laws or licence conditions applicable at a store). If an Activity becomes non-compliant after you agree to our Booking Form then, as your sole remedy, we will work with you to make appropriate variations to that Activity; and
(b) in regard to coupons, sufficient numbers of appropriate Customers being identified to meet the volume set out in the Booking Form;
7.4. You further acknowledge and agree that:
(a) we shall not be liable if your desired volume of coupons is not issued as a result of appropriate Customers not being identified and/or shopping at Foodstuffs, however we will only charge you the Fees for the coupons that are actually issued to Customers;
(b) where an Activity is performed on third party media estate (ie not retail, online, technological or direct media of a member of the Foodstuffs Group), we shall not be liable for any damages arising from such third party media estate, its selection or suitability;
(c) our ability to display online and technological media via third party websites, social media and/or other advertising platforms is subject to the availability of, accessibility to and functionality of those websites and platforms;
(d) where we enter into arrangements with you and one or more advertiser(s) for a mailing Activity featuring coupons, we shall have absolute discretion to decide the proportion of coupons issued to Customers;
(e) we shall not be liable in the event that the Services do not meet your requirements and, in respect of retail media, your desired volume or reach of media is not installed, published or met for any reason (e.g. the promotion doesn’t match the products on the shelf, or the relevant product isn’t in stock (in a particular store) or if any media is removed without our permission after installation). We may, at our discretion, choose to provide you with additional services (such as additional channel support) at no additional charge, or offer you reduced rates, or provide similar compensation if we materially fail to achieve any specified minimum volumes or reach;
(f) we make no representation, guarantee or warranty that the Activity will achieve any particular results or generate any minimum level of impressions; and
(g) unless otherwise agreed in the Booking Form, we will supply the Services to you on a non-exclusive basis. This means we may provide services the same as or similar to the Services to third parties, some of whom may be your competitors.
8. Who owns the Services?
8.1. Subject to Section 9, as between us, we or dunnhumby own all Intellectual Property Rights in or arising out of or in connection with our Services.
9. What about Your Creative?
9.1. You grant dunnhumby and Foodstuffs a licence to use Your Creative in connection with the Services (including to sub-license to other members of the Foodstuffs Group and dunnhumby Group as necessary to provide the Services) and warrant and represent that:
(a) you have all necessary rights to give dunnhumby and Foodstuffs such licence and that neither dunnhumby, Foodstuffs, nor any member of the Foodstuffs Group will be in breach of any law or infringe any person’s rights by using Your Creative;
(b) Your Creative does not contain anything which is defamatory, obscene, offensive, culturally insensitive, discriminatory, false or misleading;
(c) Your Creative complies with all applicable laws and the Codes, and any applicable third party terms or standards, such as the Facebook Community Standards where the Services involve publishing Your Creative on Facebook or other Meta platforms; and
(d) where Your Creative involves the promotion of any alcoholic products, or is a therapeutic advertisement, it complies with the specific industry requirements (such as store alcohol licence conditions) and the specific codes applicable to it.
9.2. You must not share with dunnhumby or Foodstuffs (or cause dunnhumby or Foodstuffs to share), including in Your Creative, any materials which breach applicable law or any Code or infringe another person’s rights, including Intellectual Property Rights.
9.3. We reserve the right at any time in our absolute discretion to:
(a) reject or cancel any of Your Creative, space reservation or position commitment; or
(b) in respect of Your Creative provided for newworld.co.nz, paknsave.co.nz, foursquare.co.nz or third party websites, social media and/or other advertising platforms, remove any of Your Creative from those websites or platforms.
9.4. The specific positioning of Your Creative shall be as determined by us. We reserve the right to redesign or modify the organisation, structure, “look and feel” and other elements of Your Creative at our sole discretion at any time without prior notice, however we will use reasonable endeavours to show you Your Creative, as changed by us, before it goes live in any Activity.
9.5 You acknowledge and agree that, unless otherwise agreed in writing between you and Foodstuffs, neither dunnhumby nor any Foodstuffs Group member will be the promoter, or in any way involved, in any competitions or sales promotions promoted in Your Creative. You must ensure that Your Creative does not imply that a Foodstuffs Gorup member or dunnhumby is the promoter or otherwise involved in any such competitions or sales promotions.
10. What are the payment terms?
10.1. A Foodstuffs Group member will invoice you for the Fees as set out in the Booking Form, which, unless otherwise agreed in writing, will be based on our then current rate card. You must pay the Fees in accordance with the payment terms set out in the Booking Form. Where the Activity involves the redemption of coupons or other promotional activity, except for real-time ads, you shall pay a sum equal to the monies or other benefits paid or provided by Foodstuffs or a Foodstuffs Group member to Customers on your behalf for the redemption of your sponsored coupons or the fulfilment of any other offer made to Customers as part of any Activity. Additionally, a handling charge will be made by Foodstuffs in respect of carriage and handling in accordance with Foodstuffs’ then current rates. For non-scanned coupons this charge will be invoiced by the counting house appointed by Foodstuffs from time to time. For online and technological media, you acknowledge that there may be a discrepancy of up to 10% between the impressions measured by the retail media platform we use in providing the Services (i.e., dunnhumby Group) and the impressions measured by third parties. For online and technological media, you shall pay for all impressions actually delivered based on the measurement from the retail media platform we use (i.e., dunnhumby Group) in providing the Services.
10.2. You will issue a purchase order in respect of the Services and provide that purchase order to Foodstuffs together with your Booking Form. You will pay all of Foodstuffs Group members’ invoices, without set off, counterclaim, deduction or withholding, by the 20th of the month following the date of invoice, including those containing the cancellation fees set out in Section 11.1. Where it is reasonable in the circumstances, we may at any time set off any of your liability (including unpaid Fees) against any liability of Foodstuffs (and each Foodstuffs Group member) to you, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement. If you request us to do so, we will provide the information required by the Code relating to any set off.
10.3. If you do not pay invoices on time then, without limiting other rights and remedies, we may suspend the Services until we receive full payment of the outstanding sum and may charge you interest on overdue amounts at a rate equal to 4% per annum above the Reserve Bank of New Zealand 90 day bank bill yield percentage in force from time to time, such interest to be calculated on a daily basis.
10.4. All amounts payable under this Agreement are exclusive of GST which will be payable by you at the rate prevailing at the applicable tax point.
11. What happens if you wish to change or cancel an Activity?
11.1. Subject to Sections 11.2 and 11.3:
(a) special mailing or personalised coupons: where you cancel any Activity involving the foregoing and you give us less than 4 weeks’ notice prior to the Live Date, we may charge you a cancellation fee equal to 100% of the total Fees;
(b) solo mailing: where you cancel an Activity involving the foregoing and: (i) you give us less than 8 weeks’ notice prior to the Delivery Date, we may charge you a cancellation fee equal to 100% of the Fees; or (ii) you give us more than 8 weeks’ notice prior to the Delivery Date, we may charge you a cancellation fee equal to 50% of the Fees; and in either case you will also reimburse us for any printing and posting costs, and any additional amounts resulting from the cancellation of the Activity, which are incurred by us
(c) retail media or retail activities: where you cancel or request a change to an Activity involving the foregoing and you give us less than 4 weeks’ notice prior to the Live Date, we may charge you a cancellation/change fee equal to 100% of the Fees. We will use reasonable endeavours to accommodate change requests that are notified to us at least 2 weeks’ prior to the Live Date however, no change requests will be considered after this time.
(d) online and technological media: where you cancel or request a change to an Activity involving the foregoing and you give us less than 4 weeks’ notice prior to the Live Date, we may charge you a cancellation/change fee equal to 100% of the Fees. We will use reasonable endeavours to accommodate change requests that are notified to us at least 3 weeks’ prior to the Live Date however, no change requests will be considered by us after this time.
11.2. No cancellation fees will be payable by you where an Activity is rejected by Foodstuffs after the Booking Date or the date you confirm you wish to proceed with the Booking Form (usually via a return email) as appropriate, due to trading disagreements with you or the relevant product has been delisted by Foodstuffs after the Booking Date. You acknowledge that variation and cancellation fees are reasonably necessary in order to protect our legitimate interests and are a genuine pre-estimate of the loss Foodstuffs will suffer as a result of the change or cancellation.
11.3. To cancel an Activity, you must email the relevant sales planner using the contact details in the Booking Form.
12. What will each of us be liable for under this Agreement?
12.1. You will indemnify:
(a) dunnhumby and Foodstuffs (and each Foodstuffs Group member) for all losses and damages suffered or incurred by dunnhumby, Foodstuffs and/or any member of the Foodstuffs Group arising out of or in connection with any claim that the use or publication of Your Creative:
(i) breaches any law, licence conditions or any Code;
(ii) breaches any of the warranties and representations in clause 9.1; or
(iii) infringes a third party's Intellectual Property Rights; and
(b) Foodstuffs (and each Foodstuffs Group Member) for all losses and damages suffered or incurred by Foodstuffs and/or any member of the Foodstuffs Group as a result of a breach by you of any of your obligations under this Agreement.
12.2. Nothing in this Agreement will limit: (a) either your or our liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation; or any other liability which cannot be limited under applicable law; or (b) your obligation to pay the Fees when due; or (c) your liability arising under Sections 1.3, 6, 9 or 12.1 (a); or (d) your rights under the Code and the Grocery Act.
12.3. Subject to Sections 12.2, 12.4 and 12.5, neither your nor our liability under or in relation to this Agreement whether in contract, tort (including negligence) or for breach of statutory duty or in any other way will exceed the Fees paid or payable under this Agreement.
12.4. Subject to Section 12.1, neither you nor we will be liable in contract, tort (including negligence) or for breach of statutory duty or in any other way for any indirect or consequential loss or for any loss of revenues, profits, contracts, business, goodwill, reputation or any failure to realise anticipated savings.
12.5. Subject to Section 12.1, we will not be liable for any breach, delay, error or failure under this Agreement to the extent it arises from any event beyond our reasonable control or from your act or omission or failure to comply with any obligation.
12.6. The Services interoperate with a range of third party service features. We do not make any warranty or representation about any third party services or features, including in relation to their availability, functionality or fitness for purpose. Without limiting the foregoing, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, we may cease to make available that feature to you. To avoid doubt, if we exercise our right to cease the availability of a third party feature, you are not entitled to any refund, discount or other compensation. Your use of third party services or features may be subject to that third party's terms, and we may not be able (and are not liable for failing) to provide you with a Service that relies on or interoperates with a third party service or feature if you do not accept, or you breach, the terms applicable to that third party service or feature.
13. What are the confidentiality obligations?
13.1. Each of us undertakes to keep secret and not to use or share with any other person (except professional advisors or as may be required by law or any competent authority) any confidential information concerning the other’s business or affairs or that of the other’s group except that we may share your confidential information, including details of this Agreement, with other Foodstuffs Group members, dunnhumby and dunnhumby Limited. Each of us will use reasonable endeavours to prevent the disclosure of any confidential information concerning such matters, including only disclosing it to employees and officers on a “need to know” basis and procuring that officers and employees comply with the obligations of confidentiality set out in this Agreement. Our confidential information includes pricing information, product or feature roadmaps, data generated by or in the course of providing Services, and the existence and terms of this Agreement. Confidential information concerning dunnhumby’s or dunnhumby Limited’s business, affairs, products or services is deemed to be our confidential information for the purposes of this clause.
13.2. Each of us agrees that any request or direction of any legal or regulatory authority to disclose any confidential information of the other will be, where reasonably practicable, notified promptly before compliance to the other who will be given a reasonable opportunity to resist.
14. Is there any other legal stuff?
14.1. Any notice given under or in connection with this Agreement must be in writing and served to the other’s address set out in the Booking Form, unless agreed otherwise by us. All notices sent will be deemed to be delivered 48 hours after they are properly sent.
14.2. This Agreement is the entire understanding between us concerning its subject matter and supersedes all prior agreements and understandings between us. You acknowledge that you have not relied on any statement or promise we have given or which has been made on our behalf which is not set out in this Agreement.
14.3. Subject to clause 14.4, no variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.4. If any provision of this Agreement is held to be invalid, the remaining provisions will remain in full force and effect.
14.5. Neither of us can assign this Agreement without the other’s written consent. We may subcontract any of our obligations under this Agreement.
14.6. Subject to clause 14.8, a person who is not a party to this Agreement has no right to enforce any term of it.
14.7. For the purposes of the Contract and Commercial Law Act 2017, this Agreement is entered into for the benefit of each member of the Foodstuffs Group. Clauses 5, 6, 8, 9 and 13 are also entered into for the benefit of dunnhumby and dunnhumby Limited and either of them may enforce those clauses directly against you.
14.8. This Agreement is governed by New Zealand law and subject to the exclusive jurisdiction of New Zealand courts.
Last updated: August 2024