Terms of Trade

Last updated: 13 March 2025

Terms and Conditions

1. Engagement and Term

1.1In these Terms, when we say you or your, we mean both you and any entity you are authorised to represent (such as your employer). When we say we, us, or our, we mean AKG Tech Ltd (NZCN 9263453). We and you are each a Party to these Terms, and together, the Parties.

1.2These Terms form our contract with you, and sets out our obligations as a service provider and your obligations as a customer. You cannot use our Services unless you agree to these Terms. Some capitalised words in these Terms have defined meanings, and each time that word is used in these Terms it has the same meaning. You can find a list of the defined words and their meaning at the end of these Terms.

1.3These Terms apply from the Commencement Date until the date that is the earlier of:

  • (a)the date set out in the Statement of Work;
  • (b)the date the Services are completed (as reasonably determined by us); or
  • (c)the date on which these Terms are terminated,

(Term)

1.4For questions about these Terms, or to get in touch with us, please email: aki@akgtech.co.nz

1.5These Terms were last updated on 13.03.2025.

2. Supply of Goods and Services

2.1In consideration of your payment of the Fees, we will provide the Goods and Services (as applicable) in accordance with these Terms, whether ourselves or through our Personnel.

2.2If these Terms express a time within which the Goods and Services (as applicable) are to be supplied, we will use reasonable endeavours to provide the Goods and Services (as applicable) by such time, but you agree that such time is an estimate only.

2.3Third Party Products or Services: Where you engage third parties to operate alongside our Services (for example, any third-party software systems or hardware), those third parties are independent of us and you are responsible for (meaning we will not be liable for) the goods or services that they provide, unless we expressly agree otherwise under a Statement of Work.

2.4All variations to the Goods or Services must be agreed in writing between the Parties and will be priced in accordance with any schedule of rates provided by us, or otherwise as reasonably agreed between the Parties. If we consider that any instructions or directions from you constitute a variation to the nature of the Goods or the scope of the Services or our obligations under these Terms, then we will not be obliged to comply with such instructions or directions unless agreed in accordance with this clause.

2.5Notwithstanding clause 2.4, you agree that we may vary the Goods, Services or the Fees at any time, by providing written notice to you. If you do not agree to any amendment made to the Goods, Services or Fees, you may terminate these Terms within 30 days' of being notified of such variation, in which case, the proposed variation will not come into effect and clause 10.4 will apply.

2.6If we are responsible for delivering the Goods to you, we will use reasonable endeavours to deliver the Goods by the time agreed between the Parties, and risk in the Goods will pass to you once we have delivered the Goods to the agreed delivery location. You will be responsible for the costs of delivery.

2.7If you are responsible for collecting the Goods from us, you must collect the Goods by the time agreed between the Parties, and risk in the Goods will pass to you once you have collected the Goods from the agreed collection location. You will be responsible for the costs of collection.

2.8Title in the Goods will only pass to you on the date that you pay the relevant Fees in full in accordance with these Terms.

2.9Where Goods are supplied to you without payment in full, you:

  • (a)are a bailee of the Goods until title in them passes to you;
  • (b)irrevocably appoint us to be your attorney to do all acts and things necessary to ensure our retention of title to the Goods, including the registration of any security interest in our favour with respect to the Goods; and
  • (c)must not allow any other person to have or acquire any security interest in the Goods without our prior written consent.

2.10Where we supply you with Goods from third parties, these may come with warranties against defects from those third parties (which we will pass on to you), but we provide no other warranty in respect of such Goods unless otherwise set out in each Statement of Work.

3. Your Obligations

3.1You agree to (and to the extent applicable, ensure that your Personnel agree to):

  • (a)comply with these Terms, all applicable Laws, and our reasonable requests;
  • (b)provide us (and our Personnel) with access to any premises specified in a Statement of Work (and its facilities) and any other premises as is reasonably necessary for us to provide our Goods and Services, free from harm or risk to health or safety at the times and on the dates reasonably requested by us or as agreed between the Parties;
  • (c)provide us (and our Personnel) with access to your Systems as necessary for us to provide the Services;
  • (d)provide us with all documentation, information, instructions, cooperation and access reasonably necessary to enable us to provide our Goods and Services; and
  • (e)not (or not attempt to) disclose, or provide access to, our Goods and Services to third parties without our prior written consent.

3.2You agree to pay our additional costs reasonably incurred as a result of you failing to comply with this clause 3.

4. Statements of Work

4.1During the Term, you may request us to supply our Goods and Services by notifying us in writing or by any other process we specify (Supply Request).

4.2We may, in our discretion, accept or reject a Supply Request. If we accept the Supply Request, we will provide you with a formal Statement of Work, and once the Statement of Work is agreed by both Parties in writing it will be binding in accordance with these Terms and the Statement of Work.

4.3Each Statement of Work is subject to, and will be governed by, these Terms and any other conditions expressly set out in the Statement of Work. To the extent of any ambiguity or discrepancy between a Statement of Work and these Terms, these Terms will prevail.

5. Fees and Payment

5.1In consideration for us providing the Goods and Services (as applicable), you agree to pay all amounts due under these Terms in accordance with the Payment Terms.

5.2If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion, and without prejudice to any of our rights or remedies under these Terms or at Law):

  • (a)after a period of 5 Business Days from the relevant due date, cease supplying our Goods and Services, and recover, as a debt due and immediately payable from you, our reasonable additional costs of doing so (including all recovery costs);
  • (b)charge interest at a rate equal to the Reserve Bank of New Zealand's cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date in accordance with the Payment Terms; and/or
  • (c)enter any premises where the unpaid Goods are stored or held, for the purpose of retrieving and taking possession of those Goods, and you agree to provide any access, items and consents required to enable us to do so.

5.3When applicable, Goods and Services Tax (under the Goods and Services Tax Act 1985) (GST) payable will be clearly shown on our invoices. You agree to pay us an amount equivalent to the GST imposed on these charges.

6. Intellectual Property

6.1As between the Parties:

  • (a)we own all Intellectual Property Rights in Our Materials;
  • (b)you own all Intellectual Property Rights in Your Materials; and
  • (c)nothing in these Terms constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.

6.2As between the Parties, ownership of all Intellectual Property Rights in any New Materials will vest:

  • (a)where the New Materials are Deliverables that we have developed for you pursuant to a Statement of Work, in you after payment by you in full of the Fees relevant to those New Materials; and
  • (b)in all other cases, in us upon creation, and to the extent that ownership of such Intellectual Property Rights does not automatically vest in us, you hereby assign all such Intellectual Property Rights to us and agree to do all other things necessary to assure our title in such rights.

6.3We grant you a non-exclusive, revocable, royalty-free, worldwide, non-sublicensable and non-transferable right and licence, for the duration of the Term, to use Our Materials that we provide to you solely for your use and enjoyment of our Goods and Services, as contemplated by these Terms.

6.4You grant us a non-exclusive, irrevocable, royalty-free, worldwide, non-sublicensable (other than to our related companies, as that term is defined in the Companies Act 1993) and non-transferable right and licence to use Your Materials that you provide to us solely for the purpose of performing of our obligations or exercising our rights under these Terms.

6.5If you (if you are an individual) or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with these Terms, you agree to (and will procure that your Personnel) consent to our use or infringement of those Moral Rights.

Your Data

6.6We do not own any of Your Data, but when you provide us with Your Data, you grant us the right to access, analyse, back-up, copy, store, transmit and otherwise use Your Data during the Term (and for a reasonable period of time afterwards). We may use Your Data (or disclose it to third party service providers) to:

  • (a)supply the Services to you and your Personnel (for example, to enable you and your Personnel to access and use the Services), and otherwise perform our obligations under these Terms;
  • (b)diagnose problems with the Services;
  • (c)improve and develop the Services; or
  • (d)perform analytics for the purpose of remedying bugs or issues with the Services.

6.7You acknowledge and agree that because of the nature of the internet, the processing and transmission of Your Data by us may occur over various networks, and may be transferred unencrypted.

6.8You are responsible for (meaning we are not liable for):

  • (a)the integrity of Your Data on your Systems;
  • (b)where Your Data includes Personal Information, ensuring that you have the right to collect and disclose such Personal Information to us in accordance with the Privacy Act 2020 and other applicable Laws relating to privacy; and
  • (c)unless otherwise agreed in a Statement of Work, backing up Your Data.

6.9We may create anonymised statistical data from Your Data and usage of the Services (for example, through aggregation). Once anonymised, we own that data and may use it for our own purposes, such as to provide and improve the Services, to develop new services or product offerings, to identify business trends, and for other uses we communicate to you. This may include making such anonymised data publicly available, provided it is not compiled using a sample size small enough to make underlying portions of Your Data identifiable.

6.10You acknowledge and agree that if you do not provide Your Data to us, it may impact your ability to receive the Services.

6.11This clause 6 will survive termination or expiry of these Terms.

7. Confidential Information

7.1Subject to clause 7.2, each Party must (and must ensure that its Personnel do) keep confidential, and not use or permit any unauthorised use of, confidential information provided by the other Party.

7.2Clause 7.1 does not apply where the disclosure is required by Law or the disclosure is to a professional adviser in order to obtain advice in relation to matters arising in connection with these Terms and provided that the disclosing Party ensures the adviser complies with the terms of clause 7.1.

7.3This clause 7 will survive the termination of these Terms.

8. Consumer Law

8.1Certain legislation, including the Consumer Guarantees Act 1993 and Fair Trading Act 1986, and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the supply of the Services by us to you which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights at Law, nothing in these Terms excludes those Consumer Law Rights.

8.2If you are a business, you agree and represent that you are acquiring the Services for the purposes of trade. The Parties agree that:

  • (a)to the maximum extent permitted by law, the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the New Zealand Fair Trading Act 1986 do not apply to the supply of the Services or these Terms; and
  • (b)it is fair and reasonable that the Parties are bound by these Terms, including this clause.

8.3This clause 8 will survive the termination or expiry of these Terms.

9. Liability

9.1Despite clause 9.2, to the maximum extent permitted by Law, you indemnify us from and against any Liability that we may suffer, incur or otherwise become liable for, arising from or in connection with:

  • (a)any official investigation or inquiry into you, your Personnel or your operations, by a regulatory authority under powers granted to it by Law (including without limitation, any legal costs we incur as a result, or any actual economic loss we suffer if our business is publicly associated with such an investigation or inquiry); and
  • (b)any Personal Information provided by you to us in breach of the Privacy Act 2020 or other applicable Laws relating to privacy.

9.2Despite anything to the contrary, to the maximum extent permitted by Law:

  • (a)neither Party will be liable for Consequential Loss;
  • (b)a Party's liability for any Liability under these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
  • (c)our Liability is limited (at our discretion) to:
  • (i)replacing the Goods or the supply of equivalent Goods, or the payment of the cost of replacing the Goods or of supplying equivalent Goods;
  • (ii)repairing the Goods, or the payment of the cost of having the Goods repaired; or
  • (iii)supplying the Services again or paying the cost of having the Services supplied again; and
  • (d)our aggregate liability for any Liability arising from or in connection with these Terms will be limited to the Fees paid by you to us in respect of the supply of the relevant Goods and Services to which the Liability relates.

9.3This clause 9 will survive the termination or expiry of these Terms.

10. Term and Termination

10.1These Terms will operate for the Term.

10.2Either Party may terminate these Terms at any time by giving 30 days' notice in writing to the other Party.

10.3These Terms will terminate immediately upon written notice by a Party (Non-Defaulting Party) if:

  • (a)the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 Business Days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
  • (b)the Defaulting Party goes bankrupt, insolvent or is otherwise unable to pay its debts as they fall due.

10.4Upon expiry or termination of these Terms:

  • (a)you are to pay for all Goods and Services supplied prior to termination, including Goods and Services which have been supplied and have not yet been invoiced to you, and all other amounts due and payable under these Terms;
  • (b)you agree to grant us such rights of access to any premises where the Goods are located to allow us (or our Personnel) to recover or repossess any Goods which we retain title to;
  • (c)by us pursuant to clause 10.3, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees); and
  • (d)we may retain your documents and information (including copies) to the extent required by Law or pursuant to any information technology back-up procedure, provided that we handle your information in accordance with clause 7.

10.5Unless otherwise agreed between the Parties, if these Terms are terminated:

  • (a)by us, then any current Statement of Work will also terminate on the date of termination and we will immediately cease supplying our Goods and Services; or
  • (b)by you, then any outstanding Statements of Work will continue in accordance with the terms of the Statement of Work (and these Terms) until such time as the Statement of Work is complete or the Statement of Work is otherwise terminated in accordance with its terms.

10.6Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.

10.7This clause 10 will survive the termination or expiry of these Terms.

11. General

11.1Amendment: Subject to clauses 2.4 and 2.5, these Terms may only be amended by written instrument executed by the Parties.

11.2Assignment: Subject to clauses 11.3 and 11.10, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

11.3Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.

11.4Disputes: A Party may not commence court proceedings relating to any dispute arising from, or in connection with, these Terms (Dispute) without first meeting a representative of the other Party within 10 Business Days of notifying that other Party of the Dispute. If the Parties cannot resolve the Dispute at that meeting, either Party may refer the Dispute to mediation administered by the New Zealand Disputes Resolution Centre.

11.5Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event, provided that the Party seeking to rely on the benefit of this clause:

  • (a)as soon as reasonably practical, notifies the other Party in writing details of the Force Majeure Event, and the extent to which it is unable to perform its obligations; and
  • (b)uses reasonable endeavours to minimise the duration and adverse consequences of the Force Majeure Event.

Where the Force Majeure Event prevents a Party from performing a material obligation under these Terms for a period in excess of 60 days, then the other Party may by notice terminate these Terms, which will be effective immediately, unless otherwise stated in the notice. This clause will not apply to a Party's obligation to pay any amount that is due and payable to the other Party under these Terms.

11.6Governing Law: These Terms are governed by the laws of New Zealand. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New Zealand and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

11.7Notices: Any notice given under these Terms must be in writing addressed to the addresses set out in these Terms, or the relevant address last notified by the recipient to the Parties in accordance with this clause. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

11.8Publicity: Despite clause 7, with your prior written consent, you agree that we may advertise or publicise the broad nature of our supply of our Goods and Services to you, including on our website or in our promotional material.

11.9Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

11.10Subcontracting: We may subcontract the supply of any part of our Goods and Services without your prior written consent. We agree that any subcontracting does not discharge us from any liability under these Terms and that we are liable for the acts and omissions of our subcontractor.

12. Definitions

In these Terms, unless the context otherwise requires, capitalised terms have the meanings given to them in a Statement of Work, and:

Business Day means a day on which banks are open for general banking business in Mt. Albert, New Zealand, excluding Saturdays, Sundays and public holidays.

Commencement Date means the date you accept our Statement of Work for the Goods and/or Services.

Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us the Fees will not constitute “Consequential Loss”.

Deliverables means any materials, goods, items or other deliverables we have agreed to provide to you, as set out in each Statement of Work.

Fees means the fees set out in each Statement of Work, as adjusted in accordance with these Terms.

Force Majeure Event means any event or circumstance which is beyond a Party's reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

Goods means the goods to be supplied as set out in the Statement of Work, as adjusted in accordance with these Terms.

Intellectual Property Rights or Intellectual Property means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, designs, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or confidential information, circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.

Law means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with these Terms or the supply of our Goods and Services.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to these Terms or otherwise.

Moral Rights has the meaning given in the Copyright Act 1994 and includes any similar rights in any jurisdiction in the world.

New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with these Terms or the supply of our Goods and Services, whether before or after the date of these Terms and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and Your Materials.

Our Materials means all Intellectual Property which is owned by or licensed to us and any improvements, modifications or enhancements of such Intellectual Property, but excludes New Materials and Your Materials.

Personal Information means any information or opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a tangible form or not.

Personnel means in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

Services means the services set out in each Statement of Work, as adjusted in accordance with these Terms.

Statement of Work means a statement of work, invoice, or quote for the supply of our Goods and Services.

Systems means all hardware, software, networks, telecommunications and other information technology systems used by a Party from time to time.

Your Data means the information or data supplied by you and your Personnel when receiving the Services, or stored or generated by your use of the Services, including any Personal Information collected, used, disclosed, stored or otherwise handled in connection with the Services. Your Data does not include any data or information that is generated as a result of your usage of the Services that is a back-end or internal output or an output otherwise generally not available to users of the Services.

Your Materials means all Intellectual Property owned or licensed by you or your Personnel before the Commencement Date (which is not connected to these Terms) and/or developed by or on behalf of you or your Personnel independently of these Terms and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and New Materials.