Terms and Conditions of Service - Marijke Timmers

Terms and Conditions of Service

It's important to me that we develop a trusting relationship. To protect us both, the following Terms and Conditions apply to all services offered by Marijke Timmers The Marketing Collective and affiliates of our programmes.​

1.1 In these Terms and Conditions:
(a) “Agreement” means any order or engagement letter relating to the Services, and these Terms and Conditions.
(b) “We” or “Us” means Marijke Timmers trading as Modern Marketing Solutions and her successors and assigns.
(c) “You” means the person, firm, company or entity buying Services from us.
(d) “Services” means all Services we will supply to you under an engagement letter, proposal, order or invoice relating to marketing advice and includes website downloads and membership in The Marketing Collective.

2.1 Price plus tax: You will pay the price indicated on the invoice, order form or other similar document issued by us (“Price”), together with the amount of any Goods and Services Tax or any other tax which may be payable in respect of the supply of Services or otherwise under these Terms and Conditions.
2.2 Quotation: Any quotation we have made for the supply of consulting Services constitutes an invitation to treat and not a binding offer. All quotations lapse after 30 days but We reserve the right to change or withdraw any quotation without notice at any time.
2.3 Change of Rates: We reserve the right to change any previously notified hourly rate for consulting work on 60 days’ written notice to you.
2.4 No deductions: All payments by you will be full, free and clear of any deduction, withholding, set-off, counterclaim or other claim.
2.5 Cancellation - Consulting: We are entitled to cancel this Agreement on 14 days’ written notice if you are in breach of your obligations. If cancellation occurs after we have started to perform the Services we reserve the right to invoice you for Services that have already been performed where:
(a) the amount of any Price paid is not enough to compensate us for that work; or
(b) you have not paid any of the Price.
2.6 Cancellation – The Marketing Collective Programme Subscriptions: Marketing Collective programme subscriptions are for a minimum of three months, and are on-going after this term. Direct Debit payments will continue until you notify The Marketing Collective by cancelling your membership via your Account in the customer portal. After the third payment, you may cancel your subscription at any time or remain in The Marketing Collective for as long as you need.  Once cancelled, your account and access to the customer portal will remain available until your next payment anniversary - this is because payments are made in advance and we want you to get all the value you pay for. We reserve the right to suspend or cancel your membership if you breach the warranties set out in clause 6.2 but you remain liable for payment of the Price for the rest of the Term.
​2.7 Cancellation - Private Clients: Private Client coaching agreements are for a minimum of six months, and are on-going after this term. You may not cancel your subscription for one-on-one coaching within the first five months of this membership. Cancellation after the initial five months will be subject to 30 days written notice, unless a new private coaching solution has been purchased (and new terms agreed to for that offering).

3.1 The Marketing Collective Programme Subscriptions: Marketing Collective programme subscriptions are for a minimum of three months, and are on-going after this term. Direct Debit payments will continue until you notify The Marketing Collective by cancelling your membership via your Account in the customer portal. Payments are made in advance by direct debit.
3.2 Payment in advance: In order to confirm an engagement for consulting Services we may require you to pay a deposit.
3.3 Payment: You will pay your account on the due date set out in your invoice. We reserve the right not to progress our work with you, or accept you into a programme, until the account has been paid in full.
3.4 Website payments: Payments you make via our website are processed by Stripe and its global affiliates (“Stripe”).
3.5 If you pay by credit card you agree to indemnify us against any default by your credit card company to make payment to us in full.
3.6 Expenses: Agreed out of pocket expenses will be invoiced in advance and We reserve the right not to progress the associated Services until we receive these payments.
3.7 Acceleration: Notwithstanding any agreed credit period, full payment for all unpaid Services will become due immediately upon:
(a) You or any guarantor becoming insolvent or bankrupt;
(b) The commencement of any act or proceeding in which your or any guarantor’s insolvency is involved; or
(c) You or any guarantor resolving to wind up or being ordered to be wound up or having a receiver, liquidator of official manager appointed in respect of all or any of your assets; or
(d) You or any guarantor ceasing to trade.

4.1 Default interest: Failure by you to make payment in full of any amount payable pursuant to this Agreement on the due date constitutes a default. Without prejudice to any other rights or remedies available to us, simple interest at our bank’s current overdraft rate will be payable upon demand and from the due date until payment. We also reserve the right to apply a reasonable administration fee to your debt. You acknowledge that we are entitled to begin debt recovery action for all payments that remain overdue for at least seven days.
4.2 Legal costs: You will indemnify us against all loss, costs and expenses, including legal costs on a solicitor/client basis, which we may suffer or incur as a result of any failure by you to make due and punctual payment.

5.1 Time: We undertake to use reasonable endeavours to deliver the Services within the time specified by us but dates we give for performance will be indicative only. No date specified by you will be binding on us without our written agreement.
5.2 Use of reports: Any reports or material prepared or procured by us as part of the Services are to be used only by you.
5.3 Services to be supplied: You acknowledge and agree that the Services are limited to those set out in the proposal, engagement letter, invoice, quote or other similar document issued by us.
5.4 The Marketing Collective Subscription Programmes: Your subscription may include access to scheduled events. If you cannot attend an event the relevant content will be made available to you as a website download for a limited time. This does not include Live Coaching calls.
5.5 Declining Services: We reserve the right to decline any request for work or instructions that We consider is contrary to Our professional standards or that in our view may be harmful to your or our reputations. If you object to us declining any work under this clause We have the right to terminate this Agreement with immediate effect.
5.6 Copyright:
(a) Unless otherwise agreed, we will retain intellectual property rights in all original work we have prepared on your behalf as part of the Services. You will have the right to use the original work for the purpose for which it was intended. You will not have the right to modify the work or use it for any other purposes without our written agreement.
(b) We retain intellectual property in all existing materials, toolkits, templates, methods and techniques (‘Material”) we share with you as part of the Services. You acknowledge that the Material is only licensed to you for your use and you are not permitted to share it with third parties.

6.7 Portfolio: You are that we may use the examples of the work we have prepared on your behalf for the purposes of marketing our services and our business (unless specifically advised confidential).

6.1 Consulting Services:
(a) You will provide us with any relevant information required to enable us to perform the Services.
(b) Where information provided by you is incorrect and we are required to undertake additional work we reserve the right to charge for such additional work
6.2 The Marketing Collective Subscription Programmes: You warrant and confirm that:
(a) You are a small to medium sized business;
(b) You will comply with our membership rules including those of the private Facebook Group;
(c) Access and login details are restricted to the individual who has been registered and may not be shared with third parties.
6.3 Website Downloads: You warrant that you are a small to medium sized business.
6.4 Third Party Rights: You warrant that:
(a) you own any material you provide to us, free of any claims or encumbrances and are entitled to provide that material to us; and
(b) any material you provide to us is yours and does not violate any existing intellectual property rights including, without limitation, copyright, trade mark, or any other proprietary or contractual rights.

7.1 We warrant that:
(a) We have the right to enter into this Agreement;
(b) We will perform the Services to a reasonable standard of care and skill;
(c) We will perform the Services in accordance with relevant laws.

8.1 Limitation of liability:
(a) Claims: We will have no liability for unsatisfactory Services unless you notify us in writing of your claim within 7 days after performance of the Services;
(b) We will have the option, exercisable at our discretion, to replace or give credit for any services in respect of which any claim is made or proven or to refund a portion of the price paid for the Services, thereby fully discharging all our legal liability;
(c) If either party is liable for direct losses arising from a breach of this Agreement or for negligence, the liable party’s obligation to pay damages or losses is limited to the Price paid for Services under this Agreement in the 3 months immediately prior to the event to which the liability relates. This limitation does not apply to any loss or damage caused by fraud, wilful breach or wilful damage;
(d) We are not liable for any loss caused by you, or any loss that results from your failure to take reasonable steps to avoid or minimise your loss. This includes loss caused by you providing us with incorrect information or by your delay leading to our Services becoming obsolete du to matters outside our control;
(e) Notwithstanding any other provision of this agreement, neither party will be liable for indirect, special, consequential or similar damages or losses, including but not limited to loss of profit or revenues or other financial or economic losses of any kind and whether or not the other party has been advised of the potential for such damages.
8.2 Indemnity: You will be liable for, and will indemnify us against, any and all liability, loss, damages, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by us, whether direct or consequential (including without limitation any economic loss or other loss of profits, business or goodwill), arising out of any dispute or contractual, tortious or other claim or proceeding brought against us arising from any third party claim that our work infringes a third party’s intellectual property rights.
8.3 Specific exclusion: Our Services include advice and training that you and your personnel are best placed to implement in your organisation. For this reason We cannot guarantee that any particular changes we recommend will result in quantifiable improvements to your business.
8.4 Business purposes: If you hold yourself out as acquiring the Services for business purposes, you acknowledge that the provisions of the Consumer Guarantees Act 1993 will not apply and are expressly excluded.

9.1 If any dispute/difference arises between the parties then we will, acting in good faith, endeavour to resolve that dispute by negotiation. If the dispute/difference is not resolved within seven (7) working days of the party alleging the dispute/difference having given written notice of it to the other party, then the dispute/difference will be referred to mediation conducted in accordance with Resolution Institute Rules. If the parties cannot agree on the appointment of a Mediator then a Mediator shall be appointed by the President for the time being of the New Zealand Law Society. The mediation will be conducted not later than twenty (20) working days after the notice of dispute/difference was first given. If mediation fails, or a party elects to opt out of the mediation process, then the dispute/difference may be submitted by a party to the jurisdiction of the appropriate Court of New Zealand. No party may issue any legal proceedings (other than for urgent interlocutory relief) in respect of such dispute/difference, unless that party has first taken all reasonable steps to comply with this clause.

10.1 Where stated in your order or engagement letter, the person identified as Guarantor under this Agreement guarantees that you will perform Your obligations under this agreement, including the payment of all moneys on the due dates. The Guarantor agrees to indemnify us against all losses that we may suffer under this Agreement as a result of your acts or omissions.

11.1 Events outside our control: If any cause beyond our reasonable control including but not limited to order of a government or other authority, strike, lockout, labour dispute, delays in transit, difficulty in procuring components or equipment, embargo, accident, emergency, natural event interfere with our performance of any of our obligations under these Terms and Conditions then we may at our sole discretion suspend our performance of any such obligation or cancel any contract for the purchase of Services and we will not be liable to you in any respect.
11.2 Waiver: These Terms and Conditions remain in force notwithstanding any neglect, forbearance or delay in enforcement. We will not be deemed to have waived any condition unless such waiver will be in writing and such waiver will only apply to the particular transaction to which it refers.
11.3 Severability: If any clause or provision of these Terms and Conditions will be held illegal or unenforceable by any judgment of any Court or Tribunal having competent jurisdiction, such clause will not apply to this Agreement. The remaining provisions of this Agreement will remain in full force and effect as if the clause or provision held to be illegal or unenforceable had not been included.

11.4 Privacy Policy: Any personal information collected by us in connection with this Agreement will only be used or disclosed for the purposes of ensuring performance of this Agreement and any future like arrangement or arrangements. This may include disclosure within our organisation and to other parties involved in performing the Services. We agree to comply with relevant privacy laws in respect of any personal information collected in connection with the provision of the Services and any future like arrangement or arrangements. Because we use Stripe to process payments, you consent to and understand that your personal information may be sent to Stripe and may be transferred, processed and stored outside of New Zealand. Because online training will be delivered using Zoom you consent to and understand that your personal information may be sent to Zoom Video Communications Inc and may be transferred, processed and stored outside of New Zealand.

11.5 Electronic Communications: You consent to receive commercial electronic messages from us. If you wish to opt out of receiving these messages tell us in writing and we will remove you from the mailing list.
11.6 Confidentiality: Each party must keep confidential during the term and after termination of this Agreement the existence and terms of this Agreement and all information of a confidential or sensitive nature supplied by the other party to this Agreement except to the extent that disclosure is required by law or where such information is or becomes available in the public domain without breach by a party of its confidentiality obligations under this Agreement. A party may disclose such information to its legal and other advisers, bankers and other persons who are subject to an obligation of confidentiality.