NICOLETONI SERVICES AGREEMENT
The terms and conditions on this page, and any linked or referenced terms or policies, including NicoleToni’s privacy policy (together this Agreement), form the terms and conditions for all products and services you purchase through Nicole Watt, trading as NicoleToni (NicoleToni).
1 Binding Agreement
1.1 This is a binding legal agreement between you and NicoleToni. By ordering, accessing, using or purchasing NicoleToni’s Services or Deliverables you agree to this Agreement.
1.2 This Agreement may be updated from time to time without notice. You agree that it is your responsibility to read and understand the terms and conditions that are current at the time.
2 Term
2.1 This Agreement begins on the date that NicoleToni sends you a Booking Confirmation, and continues until the date of delivery of all the Services and Deliverables and payment of all amounts owing unless terminated earlier in accordance with this Agreement.
3 Services and Delivery
3.1 You may request Services from NicoleToni by any method currently approved by NicoleToni. NicoleToni may refuse your request for Services for any reason and has no obligation to provide any reason for refusal. If NicoleToni accepts your request, NicoleToni will send you a Booking Confirmation and invoice.
3.2 NicoleToni agrees to provide the Services and Deliverables set out in the Booking Confirmation and paid for by you.
3.3 NicoleToni will commence performance of the Services on proof of payment of the Fees, unless agreed otherwise in writing in advance.
3.4 NicoleToni will deliver the Deliverables by the delivery date specified in the Booking Confirmation and after receiving full cleared payment of the Fees, unless agreed otherwise in writing in advance. You agree that delivery timeframes may be extended at NicoleToni’s sole discretion if, in NicoleToni’s sole opinion, you do not provide full and timely information, decisions and responses, the scope of the project is larger than initially anticipated, or if you are in default of any payment requirements under this Agreement.
3.5 Where NicoleToni has agreed in writing in advance to extend credit to you, you must make payment in accordance with the requirements on the invoice.
4 Obligations
4.1 NicoleToni agrees to provide the Services using reasonable care, skill and diligence, and in accordance with applicable laws.
4.2 You must promptly make decisions and approvals and provide NicoleToni will all information reasonably required to provide the Services.
4.3 You agree that you are solely responsible for ensuring the accuracy, reliability and completeness of all information provided to NicoleToni. You agree to promptly notify NicoleToni of any changes to the information provided.
4.4 You acknowledge that NicoleToni relies on the information that you provide, and does not perform any due diligence, property research, checks, inspections or investigations.
4.5 You agree that you are solely responsible for ensuring that nothing in the Deliverables is incorrect, misleading, deceptive, incomplete, capable of giving a false impression, or otherwise in contravention of any relevant standard or law.
5 Fees and Payment
5.1 You must pay the Fees for the Services within one working day of receiving a Booking Confirmation, unless agreed otherwise in writing in advance. You must make payment via the method specified by NicoleToni in the invoice. All payments are non-refundable.
5.2 The Fees are inclusive of GST unless stated otherwise.
5.3 NicoleToni may charge interest on overdue amounts. Interest will be calculated from the due date until the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by NicoleToni’s primary trading bank (or if this rate is not available, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus two percent per annum.
5.4 You agree that NicoleToni may charge additional amounts if any changes are required to the Services or Deliverables and these changes are directly or indirectly the result of your failure to comply with your obligations under this Agreement.
5.5 NicoleToni will invoice you promptly in relation to any additional amounts owing, and you agree to promptly pay all invoices in accordance with the payment terms set out in that invoice.
5.6 You agree to pay all NicoleToni’s costs of and incidental to collecting any amount owed by you or enforcing NicoleToni’s rights, powers or remedies under this Agreement.
6 Warranties
6.1 NicoleToni warrants that the Services will materially conform to the current advertised description of the Services.
6.2 You warrant that all information provided to NicoleToni is true, correct, complete, and reliable and does not contravene any relevant standard or law.
7 Exclusions
7.1 You agree and represent that you are acquiring the Services solely for the purposes of trade. You agree that to the maximum extent permissible by law, the Consumer Guarantees Act 1993 does not apply to this Agreement or the Services.
7.2 You agree that is it fair and reasonable that the parties are bound by this Agreement.
7.3 To the maximum extent permitted by law, NicoleToni’s warranties are limited to those set out in this Agreement. Any implied condition or warranty (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) is excluded.
7.4 This Agreement is non-exclusive, and NicoleToni may provide Services to other people and entities, including those in competition with you.
8 Limitation of Liability
8.1 You agree that your sole remedy for any breach of warranty is re-performance of the Services at NicoleToni’s cost so that the Services satisfy the warranty.
8.2 The maximum aggregate liability of NicoleToni under or in connection with this Agreement, whether in contract, tort (including negligence), beach of statutory duty or otherwise, will not exceed the Fees paid or payable by you under this Agreement for the Services in question.
8.3 NicoleToni is not liable for any loss of profit, data, savings, business, revenue, goodwill, fines, or any direct, indirect, consequential, exemplary, punitive, incidental or special losses or damages of any kind.
8.4 Nothing in this Agreement limits a party’s liability for fraud or wilful misconduct.
8.5 Neither party will be responsible, liable or held to be in breach of this Agreement for any failure to perform its obligations to the extent that that failure is directly caused by an act or omission of the other party, including the failure of the other party to perform its obligations or comply with this Agreement, or negligence or misconduct by the other party.
8.6 Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of any act or omission by the other party in connection with this Agreement.
9 Confidentiality
9.1 The parties agree that they will keep the other party’s Confidential Information confidential, and will not without prior written consent:
a) use or disclose the Confidential Information for any purpose other than for the reason it was provided; or
b) otherwise copy or reproduce any of the Confidential Information in any way,
except to the extent required by law, or that the information becomes generally known to the public other than by a breach of this clause.
9.2 The parties acknowledge that they do not own or acquire any intellectual property rights in the Confidential Information owned or provided by the other party.
10 Intellectual Property
10.1 The parties agree that all Intellectual Property that exists prior to the commencement of this Agreement remains vested in the party that owned it prior to this Agreement.
10.2 You agree that all new Intellectual Property created, developed or arising in connection with or during the term of this Agreement will absolutely and exclusively vest with NicoleToni immediately on creation without the requirement for any specific step or action. Notwithstanding this, you must do any thing and sign any document required by NicoleToni to give effect to this clause.
10.3 NicoleToni licences you to use the Deliverables in the form they are provided for the purposes for which they are provided. You agree not to do or omit to do anything that might impair NicoleToni’s rights to or the value of the Intellectual Property.
11 Indemnity
11.1 You agree that you indemnify, and will keep indemnified and hold harmless, NicoleToni from any and all:
a) loss, liability, damages, claims, fees, costs, fines, compensation or other expenses; and
b) direct, indirect, incidental, special or consequential losses or damages of any third party,
arising directly or indirectly out of this Agreement or use of the Services or Deliverables.
12 Dispute Resolution
12.1 If a dispute arises, the parties agree to meet in good faith to discuss and resolve the dispute between themselves.
12.2 If the dispute is unable to be resolved through discussion within 14 days, or any other reasonable timeframe agreed by the parties, either party may notify the other party in writing that they wish to attend mediation. The parties will agree on a mediator, or if Agreement cannot be reached within seven days then a mediator will be appointed by the Resolution Institute. Unless the parties agree otherwise, each party will pay their own costs and the costs of the mediation will be shared equally.
12.3 If the parties are unable to resolve the dispute through mediation, the parties may agree to arbitration with a single arbitrator. In that event:
a) the parties will agree on an arbitrator, or if Agreement cannot be reached within seven days then an arbitrator will be appointed by the Resolution Institute;
b) unless the arbitrator determines otherwise, each party will pay their own costs and the costs of the arbitration will be shared equally;
c) the arbitration will be held in Auckland, and the arbitrator will determine the most simple and expeditious procedure for the arbitration;
d) the arbitrator may determine the dispute without a hearing, unless either party gives notice requiring one; and
e) the Second Schedule to the Arbitration Act 1996 will not apply.
12.4 The parties agree that the existence of any dispute, the information relating to or disclosed in the process of resolving that dispute, and the outcome of the dispute including any award is confidential and may only be disclosed:
a) to an advisor who is bound by confidentiality obligations and is assisting a party to resolve the dispute; or
b) as required by law.
12.5 Nothing in this clause affects either party’s right to seek urgent or interlocutory or injunctive relief.
13 Termination
13.1 NicoleToni may terminate this Agreement by giving 24 hours written notice if you fail to make full payment of any amount by the due date. You may only terminate this Agreement by 48 hours written notice on full payment of all amounts owing.
13.2 NicoleToni may immediately terminate this Agreement on written notice if the Client commits any serious or material breach of this Agreement.
13.3 On termination or expiry of this Agreement this clause, clauses 4.4, 4.5, 6, 7, 8, 9, 10, 11 and all other clauses intended to survive will remain in full force and effect.
14 General
14.1 This Agreement represents the entire Agreement between the parties and replaces any prior Agreements, discussions, representations or understandings.
14.2 Changes to this Agreement must be made in writing, must clearly state that it is intended to be a variation, and be signed or electronically agreed to by NicoleToni.
14.3 This Agreement is personal to you and may not be assigned, novated, subcontracted or transferred without the prior written consent of NicoleToni.
14.4 Any failure by NicoleToni to exercise any right or remedy will not constitute a waiver of that right or remedy.
14.5 Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party promptly notifies the other party and uses their best efforts to overcome the Force Majeure and perform their obligations to the extent possible.
14.6 If any provision of this Agreement is or become illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the fault. If modification is not possible then the provision will be treated as being severed from the Agreement without affecting the legality, enforceability or validity of any of the remaining provisions.
14.7 This Agreement is governed by and construed in accordance with the laws of New Zealand and the parties submit to the jurisdiction of the New Zealand courts.
15 Definitions
15.1 In this Agreement:
a) Booking Confirmation means an electronic or hard copy communication to you from NicoleToni confirming NicoleToni’s acceptance of your request for Services;
b) Confidential Information includes all information that is not in the public domain and that is developed, created or acquired by either party during the term of this Agreement, including the subject matter and terms of this Agreement, the Intellectual Property, information concerning NicoleToni’s business, trade secrets, data, clients, customers, finances, processes, strategies, methods and any other information of any kind relating to NicoleToni’s organisation, operations, method, style and philosophy for the operation of it business or those of its clients, customers and suppliers;
c) Deliverables means the finished product to be developed, produced, created, delivered or provided by or on behalf of NicoleToni as specified in the Booking Confirmation;
d) Fees means the amount payable for the Services set out in the Booking Confirmation or invoice;
e) Force Majeure means an event that is beyond the reasonable control of a party, including acts of God but excluding any event to the extent that it could have been anticipated or avoided by a party taking reasonable steps or reasonable care;
f) Intellectual Property includes all intellectual property rights and interests (including common law rights and interests), and all associated goodwill rights, which NicoleToni owns, holds, uses or develops in connection with its business or otherwise, whether registered or unregistered, including information, trade names, trademarks, service marks, copyrights, designs, patents, logos, colour schemes, décor, signage, branding, style, methods, systems, formats, processes, data, drawings, improvements, know how, expertise, experience, trade secrets, discoveries, concepts, ideas, documents and technology, and also includes the work, deliverables and any other outputs provided by you or otherwise, to which intellectual property rights attach; and
g) Services means the real estate advertising copy services set out in the Booking Confirmation and as described in NicoleToni’s advertising material from time to time.
16 Construction
16.1 In the construction of this Agreement:
a) includes means including without limitation to the generality of the surrounding words;
b) headings are used as a matter of convenience and will not affect the interpretation of this Agreement;
c) words in singular include the plural and vice versa;
d) a reference to a party includes that party’s agents, personnel and permitted assigns;
e) a person includes an individual, body corporate, company, trust, government department, association of persons and any other entity; and
f) in the case of any conflict between the body of the Agreement and any relevant policies, directives or other documentation, the body of this Agreement will prevail unless expressly stated otherwise.
NICOLETONI WEBSITE TERMS OF USE
This website is provided by Nicole Watt, trading as NicoleToni (NicoleToni, we, us, our). These terms of use apply to the entire contents of the website, any web feeds produced by the website and any feedback, submissions, orders, or other communications through the website. These terms of use incorporate NicoleToni’s privacy policy and any other policies or documents referenced in the terms.
1 Binding Agreement
1.1 By viewing or using NicoleToni’s website you agree to these terms of use. If you disagree with any part of these terms of use you must immediately stop viewing and using the website.
1.2 These terms of use may be updated from time to time without notice, and any changes will take effect immediately. You agree that it is your responsibility to read and understand the terms and conditions that are current at the time you use NicoleToni’s website.
2 Website Access
2.1 NicoleToni makes no warranty or representation, express or implied, as to continuity of service. We may change, restrict access to, terminate or suspend all or any part of the website, including content and services, at any time without notice or liability.
3 Website Use
3.1 You must not act in any way, or use or introduce anything that;
a) causes, or may cause, damage or interference to the website or impairment of the availability or accessibility of the website;
b) is or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
c) in any way does or may damage, compromise or interfere with any underlying, linked or related system or process.
3.2 You must not use this website to copy, store, host, transmit, send, use, publish or distribute any material which consists of, or is linked to, any spyware, virus, worm, trojan horse, keystroke logger, time bomb, rootkit or other similar or malicious software or feature.
3.3 You must not conduct any systematic or automated data collection activities including scraping, data mining, data extraction, data harvesting, use of a robot or spider, automaton or any other data gathering, extraction or monitoring method on or in relation to this website without NicoleToni’s express prior written consent.
3.4 You must have NicoleToni’s prior written consent to establish a link to our website.
3.5 If you communicate with NicoleToni through this website or send us emails you are communicating with us electronically, and you consent to receive communications from us electronically.
4 Privacy
4.1 Your privacy is important to NicoleToni. NicoleToni’s privacy policy forms part of these terms of use, and it is your responsibility to read and understand it before accessing or using our website, products or services. [Privacy Policy]
5 Intellectual Property
5.1 NicoleToni owns all proprietary and intellectual property rights in all information contained within NicoleToni’s website and any underlying system, including design, text, graphics, icons, images, logos, photographs, sound recordings, data, look and feel, and other content.
5.2 NicoleToni’s services, products and website are subject to copyright and other intellectual property rights, and you have limited rights to use them. Republication, redistribution or unauthorised use of any content in our services, products or this website is prohibited. This includes the sample advertisements on NicoleToni’s website. These advertisements are provided solely as an example of our work and do not constitute any kind of information or advice regarding your property, they are not tailored to the specific details of your property, and cannot be used by you.
6 Limitation of Liability
6.1 NicoleToni provides this website and all contents on an as is basis with no warranty of any kind. NicoleToni makes no guarantee of the accuracy, completeness or reliability of the website or any content. Your access and use of this website and any information or other content is solely at your own risk.
6.2 To the maximum extent permitted by law, NicoleToni has no liability or responsibility to you or any other person for any losses or damages arising directly or indirectly in connection with this website, these terms of use, or your use of, inability to use or reliance on our website, underlying systems and any information or other content.
6.3 NicoleToni’s website may contain advertisements for or hyperlinks to websites operated by third parties. These links are provided for convenience only, and any link to other websites does not imply any endorsement, approval or recommendation of, or responsibility for, those websites or their contents, operations, products or operators. Third party websites are not under the operation or control of NicoleToni, and we are not responsible for the contents of any linked website or any hyperlink contained in a linked website. Your use of hyperlinks is solely at your own risk.
6.4 NicoleToni is not liable or responsible for problems you may have in using third party websites where that third party is a service provider for NicoleToni, including making payment through an online billing platform.
6.5 NicoleToni is not liable or responsible for any exposure to viruses or other forms of interference which may damage your computer system or expose you to fraud when you access or use this website. To avoid doubt, you are responsible for ensuring the process by which you access and use the website and our products and services protects you from this.
6.6 NicoleToni does not make any representation or warranty that the website is appropriate or available for use in all countries or that the content satisfies the laws of all countries. You are responsible for ensuring that your access to and use of the website is not illegal or prohibited, and for your own compliance with applicable local laws.
6.7 To the extent NicoleToni’s liability cannot be excluded by law, our maximum total liability to you is limited to and must not exceed an aggregate of one hundred New Zealand Dollars (NZD$100).
6.8 You indemnify NicoleToni against all losses, damages, claims, costs or expenses we suffer or incur as a direct or indirect result of your failure to comply with these terms of use.
7 General
7.1 These terms of use, including all policies incorporated by reference within the terms of use, represent the entire agreement between the parties regarding your access and use of the website, and replace any prior agreements, discussions, representations or understandings.
7.2 Any failure by NicoleToni to exercise any right or remedy will not constitute a waiver of that right or remedy.
7.3 If any provision of these terms of use is or become illegal, unenforceable or invalid, the relevant provision is deemed to be modified to the extent required to remedy the fault. If modification is not possible then the provision will be treated as being severed from these terms of use without affecting the legality, enforceability or validity of any of the remaining provisions.
7.4 These terms of use are governed by and construed in accordance with the laws of New Zealand and the parties submit to the jurisdiction of the New Zealand courts.
7.5 In the construction of these terms of use:
a) includes means including without limitation to the generality of the surrounding words;
b) headings are used as a matter of convenience and will not affect the interpretation of these terms of use;
c) words in singular include the plural and vice versa;
d) a reference to a party includes that party’s agents, personnel and permitted assigns;
e) a person includes an individual, body corporate, company, trust, government department, association of persons and any other entity; and
f) in the case of any conflict between the body of these terms of use and any relevant policies, directives or other documentation, the body of these terms of use will prevail unless expressly stated otherwise.
g) Services means the copy writing services set out in the Booking Confirmation and as described in NicoleToni’s advertising material from time to time.
NICOLETONI PRIVACY POLICY
Personal information is information about an identifiable individual, not a company. This policy sets out how Nicole Watt, trading as NicoleToni (NicoleToni, we, us, our) collects, uses, discloses and protects your personal information.
NicoleToni complies with the New Zealand Privacy Act 1993 (the Act) when dealing with your personal information. This policy does not limit or exclude any of your rights under the Act. If you want further information on the Act and your rights under it, see www.privacy.org.nz.
1 Policy
1.1 By using NicoleToni’s website, social media platforms, services or products you agree to this privacy policy.
1.2 This policy may be updated from time to time without notice. You agree that it is your responsibility to read and understand the terms and conditions that are current at the time you use NicoleToni’s website, communicate with NicoleToni or purchase products and services.
2 Collecting Information
2.1 NicoleToni requires your personal information only in limited circumstances, including when you request services, products or communications from us. You may decide not to provide your personal information to NicoleToni, however that may mean that we are unable to communicate with you or provide you with certain services.
2.2 Wherever possible, NicoleToni will collect personal information directly from you. However, we may also collect information from third party sources where you have authorised this or the information in publicly available.
2.3 The kinds of information NicoleToni might collect include your:
a) name, address and contact information;
b) computer or network information; and
c) interactions with us and our website.
2.4 NicoleToni may collect personal information for a variety of reasons, including in order to:
a) provide services and products to you;
b) contact you;
c) market our services and products to you, including electronically;
d) understand our client base better, including by conducting research and statistical analysis;
e) invoice you and collect money that you owe us;
f) protect and enforce our legal rights and interests; and
g) for any other purpose authorised by you or the Act.
2.5 NicoleToni will not rent or sell your information to third parties. We will use your information for the primary purpose for which it is collected and for such other secondary purposes that are related to the primary purpose of collection.
3 Third Party Websites
3.1 NicoleToni uses an online billing platform, Stripe Inc. For information about their privacy policy and how they handle your information see www.stripe.com.
3.2 NicoleToni uses Constant Contact for business promotion, marketing and email purposes. For information about their privacy policy and how they handle your information see https://www.endurance.com/privacy/privacy
3.3 NicoleToni’s website may contain links to third party websites that are not operated or controlled by us. We are not responsible for the privacy or security practices of those third party websites and the sites are not covered by this privacy policy. Third party websites should have their own privacy and security policies and we encourage you to read them.
3.4 NicoleToni’s website includes social media features, such as a link to Instagram or the Facebook like button. These features interface with third party websites, and your interactions with these features are governed by the privacy policy of those third parties. It is your responsibility to read and understand those privacy policies before using any social media features on our website.
3.5 NicoleToni may use automated data collection technology to collect and store information about your use of our website, including analytics software, sessions or cookies. By using our website you consent to our use of cookies and the storing and accessing of cookies or other information on your device. If we activate cookies we will give you the option to disable them. If you disable cookies it may limit your access to some of our website’s content and features.
4 Protecting Information
4.1 NicoleToni takes reasonable steps to keep your personal information safe from loss, disclosure, destruction, alternation, unauthorised activity or other misuse, including by storing it securing and limiting access to people who need to access it.
4.2 NicoleToni stores personal information as long as required to perform the services or for legal reasons (eg: tax, audit, litigation). After this, we securely destroy it by erasing digital files and destroying hard copies.
4.3 We will only disclose your personal information:
a) for the purposes for which you have provided or we have collected it;
b) if you have authorised us to do so;
c) if we believe it is reasonably necessary to enforce or protect our legal rights; or
d) if we are authorised, required or permitted to do so by law, including to assist any law enforcement or government agency to perform their functions.
5 Accessing and Correcting Personal Information
5.1 Under the Act, you have the right to ask for a copy of personal information that NicoleToni holds about you, and to ask for it to be corrected if you think it is wrong. There are some exceptions to this right set out in the Act.
5.2 If you’d like to ask for a copy of your personal information, or to have it corrected, please email NicoleToni at the contact email address posted on our website. We will need you to verify your identity and specify what your request is about. We may charge you a fee to cover the costs of dealing with your request.
6 Personal Information about Others
6.1 In the course of using NicoleToni’s services, we may also collect information from you about someone else. If you provide NicoleToni with personal information about someone else you must ensure that you are authorised to disclose that information to us and that, without us taking any further steps required by applicable privacy or data protection laws, NicoleToni may collect, use and disclose that information for the purposes described in this policy. This means that you must take reasonable steps to ensure the individual concerned is aware of and consents to the various matters detailed in this policy, and understands their rights under the Act.
7 Sharing Information via the Internet
7.1 NicoleToni takes reasonable steps to maintain secure internet connections, however if you provide us with personal information over the internet it is at your own risk.
