GENERAL TERMS AND CONDITIONS OF TRADE
NIKA CONSULTING GROUP LIMITED
- 1.1 In these Terms and any Order between you and us, unless the context indicates otherwise:
“Commencement Date” means the date we anticipate commencing the Services as specified in your Order;
“Confidential Information” means any information relating to the business of either party, including customers, know-how or trade secrets, whether of a technical or business nature;
“days” means any day of the week other than Saturday, Sunday, a public holiday in Auckland, New Zealand, or that period falling on 24 December through to 5 January;
“Deliverables” are the deliverables to be provided to you related to or associated with the Services;
“Force Majeure Event” means any event or circumstance beyond our reasonable control and includes, but is not limited to any event or circumstance occasioned by, or in consequence of, any act of God, strikes, lockouts, other industrial disturbances, wars, terrorism, blockades, insurrections, riots, epidemics, pandemics or other infectious diseases, shortage of labour or civil disturbances, the order, direction, or requirement of any court, government, or local authority;
“GST” means goods and services tax as defined in the Goods and Services Tax Act 1985;
“Intellectual Property Rights” includes copyright, and all rights conferred under statute, common law or equity in relation to inventions (including patents), 3D models, videos, photographs and other content we create, trade marks, designs, domain names, rights in databases, data, software, code confidential information, trade secrets, tooling design, know-how, specifications, websites, and all other proprietary rights;
“Order” means an order submitted by you to us for the purchase of Services, whether by email, via our website, in person, or by telephone, or as specified as the Contract Details in any Services Agreement signed by you and acknowledging these Terms;
“Price” means the total amount payable by you either as a monthly subscription fee or the total amount payable by you for the Services as determined in accordance with clause 3;
“Services” means any services supplied or provided by us to you and includes any Deliverables;
“Subscription Period” means the monthly period selected by you in return for the Subscription Services but no less than the Minimum Term required at clause 4.2;
“Subscription Service” means our subscription services where you pay a monthly fee in return for Services during the Subscription Period specified in your Order;
“Terms” means these Terms and Conditions of Trade;
“we”, “us”, “our” means Nika Consulting Group Limited (company number 7080633) and “Supplier” has a corresponding meaning; and
“you” and “your” means the person(s) or entity(ies) to whom we provide Services and “Customer” has a corresponding meaning.
- 2.1 These Terms apply and are incorporated into any agreement for the supply of Services by us to you. All other terms and conditions are expressly excluded unless otherwise agreed in writing. If there is any conflict between an Order and these Terms, these Terms prevail.
- 2.2 Our agents, employees, contractors and representatives have no authority to make any oral representations, statements, warranties, conditions or agreements that conflict with these Terms.
- 2.3 By submitting an Order, you are deemed to have accepted these Terms. We will treat any person holding themselves out as your agent, employee, contractor or representative as authorised by you to submit an Order.
- 2.4 A binding contract is deemed to be formed between us and when we counter sign your Order in writing and notify you with a copy of the fully executed Order by email or in person, or otherwise by accepting your Order by email, in person, telephone, or otherwise acting on your Order.
- 2.5 If you are more than one legal person or entity, then your liability is joint and several.
- 2.6 We may terminate this and/or any other agreement between us immediately if you do not make payment of any amounts due to us on or before the due date for payment, indicate that you will not pay any sums by the due date, fail to comply with your obligations under these Terms, or suffer an insolvency event.
- 3.1 Unless otherwise agreed by us, the price of the Services will be specified on acceptance of your Order. Where no Price is specified, the Price will be the current price at which we sell or supply such Services at the time of the Order, plus all costs, expenses and disbursements incurred by us. The Price is exclusive of GST unless specifically stated otherwise. You will pay all applicable GST in addition to the Price. We reserve the right to alter the Price because of circumstances beyond our control (including fluctuations in international monetary exchange rates, shipping rates, shortages, duties and tariffs, and other events).
- 3.2 The method and cost of delivery (if and where applicable) will vary according to the delivery method chosen by you.
- 3.3 Unless we agree otherwise, you must pay all costs associated with delivery, including carriage and freight, in addition to the Price.
- 3.4 If we provide you with a quote for the Services, the quotation shall be valid for 20 days from the date the quote was provided to you. However, we reserve the right to alter the quotation if exceptional circumstances arise beyond our control.
SUBSCRIPTION PACKAGES, DEPOSIT AND PAYMENT TERMS
- 4.1 Subject to clause 4.2 and unless otherwise specified on your Order, we require 50% of the Price (Deposit) to be paid on all Orders immediately on acceptance of your Order or as by the due date we specify to you. We will not commence Services or begin work on your behalf until such time as we receive the Deposit which is non-refundable. The balance of the Price is payable by you on completion of the Services, or if applicable, on completion of any Deliverables to the address specified by you in your Order (if applicable) or as directed by us as the preferred method of delivery. The method of payment will be as directed by us or as indicated on our invoice.
- 4.2 If your Order is to subscribe to our Subscription Services , we require monthly payments from you by direct debit in advance on the same day each month for a minimum term of four months (“Minimum Term”).
- 4.3 If you default on any payment (time being strictly of the essence), the monthly payments corresponding to the remainder of the Subscription Period will immediately become due and payable.
- 4.4 If you default on any monthly payment, we may freeze your access to the Services until payment is made.
- 4.5 Where applicable you must specify an approved delivery method or specify that you will collect the any Deliverables from us personally, on the Order. If we later agree to change the method of delivery at your request, further charges may apply.
- 4.6 Where applicable you must specify an approved delivery method or specify that you will collect the any Deliverables from us personally, on the Order. If we later agree to change the method of delivery at your request, further charges may apply.
- 4.7 Without prejudice to our other rights and remedies under these Terms or at law, if you fail to make payment of any amount due to us, we may refuse to supply the Services and/or charge interest on the amount owing at the rate of 10% per annum from the due date for payment until payment is received in full.
- 4.8 You must pay any expenses, disbursements and legal costs that we incur enforcing any rights contained in these Terms, including our reasonable solicitors’ fees or debt collection agency fees.
- 5.1 We will perform the Services at, the place, and by the method, specified by you in the Order. You must specify the exact location for delivery in the Order.
- 5.2 We will use our reasonable endeavours to supply the Services by the delivery date specified, however, we will not be liable for any costs, losses, damages or claims relating to any failure or delay in supply, and you will not be able to terminate this agreement or any Order due to any failure or delay in supply. If we are unable to supply the Services as agreed solely due to any action or inaction of yours then we will be entitled to charge a reasonable fee for re-supplying the Services at a later time and date.
- 5.3 Unless we agree otherwise, risk in the Deliverables will pass from us to you when the Deliverables are delivered in accordance with the Order. Deliverables will be deemed to be delivered when they are given to a carrier, courier, or other bailee for purposes of transmission to you or when the Deliverables are available for collection.
- 5.4 We reserve the right to remove or change any method of delivering our Services in your Order from time to time, and either replace them with new improved delivery methods. This will be specific to the nature and context of our Services within the software, telecommunications and hosting solutions and we will provide you with not less than 20 days’ notice of any changes.
- 5.5 If at any time during the performance of our Services, we consider that there is a necessary variation or change required to complete the Services, that is outside of the nature and scope of the Services specified in your Order due to a Force Majeure Event, a change in your instructions to us, an extension, delay or reduction in the scope of the Services (Variation), we are entitled to charge our reasonable costs for such Variations as approved by you in writing. We will endeavour to notify you with not less than 5 days’ notice of any Variations required to complete your Services.
- 6.1 Before we commence Services, you will provide to us, in a timely manner and at your cost:
- (a) any documents, information or other materials, including (but not limited to) content, logo, and photos that we may reasonably require to perform our obligations. You will ensure that the documents, information or materials are complete and accurate in all material respects.
- (b) if applicable, access to your premises and to other facilities as we reasonably require in order to perform our obligations under these Terms.
- 6.2 Where our Services include accessing any existing accounts across multiple social media platforms (“Existing Accounts”) to incorporate such content and/or data into any Deliverables we provide to you, you warrant and undertake:
- (a) You are the legal owner of your Existing Accounts that you provide to us, and their contents, data and Intellectual Property in or relating to the contents and data related to that Existing Accounts; and
- (b) you authorise us to access and use such Existing Accounts as provided by you to us for the Services. In providing the details of your Existing Accounts.
- 7.1 You can terminate your Subscription Service at any time by giving us 20 days’ notice in writing prior to the expiration of your Subscription Period.
- 7.2 You can cancel an Order within 5 days of the Commencement Date without incurring any Prices payable to us on the basis that we have not commenced any Services on your behalf, in which case we reserve the right to recover our reasonable costs incurred by us in relation to that part of the Services we have already performed.
- 7.3 If you wish to cancel an Order for Subscription Service after 5 days of the Commencement Date but before 20 days after the Commencement Date, then you will be required to pay 60% of the Price payable during that Subscription Period. You may not cancel an Order for a Subscription Service after 20 days after the Commencement Date, unless we agree otherwise.
- 7.4 If you wish to cancel an Order for Services (other than a Subscription Service) after 5 days of the Commencement Date but before 20 days after the Commencement Date, then you will be required to pay 60% of the Price payable by you. You may not cancel an Order after 20 days after the Commencement Date, unless we agree otherwise.
- 7.5 To cancel an Order you must notify us immediately by email in writing to email@example.com.
- 7.6 If you have not fulfilled your Obligations as required under this Agreement, within 12 months of the Commencement Date specified on your Order, then we may at our discretion, terminate your Order with immediate effect by giving notice to you.
- 8.1 Except in the proper course of performing its duties under these Terms, neither party may disclose the other party’s Confidential Information to any person without that party’s prior written approval. Each party shall ensure that its employees, contractors, officers and agents do not use the other party’s Confidential Information for any purpose that is not related to these Terms without written permission from the other party. Nothing in this clause prohibits disclosure of information which:
- (a) is in the public domain otherwise than as a result of a breach of confidence; or
- (b) is required to be disclosed by law or any government or governmental body, authority or agency having authority over a party to these Terms.
- 9.1 You confirm that all data, images, materials, content and information you supply to us in relation the Services:
- (a) Are complete and accurate and not likely to mislead or deceive or cause damage to the reputation of any person or company;
- (b) Will not cause us, in the course of providing the Services or otherwise fulfilling our obligations under these Terms to infringe upon any person’s Intellectual Property including, but not limited to, any copyright or patent, registered design, or trademark and you agree to indemnify us against any action taken by a third party against us in respect of any such infringement; and
- (c) Are not offensive, harmful, upsetting, unlawful, or otherwise objectionable which may include (without limitation) a breach of law.
- 10.1 Each party agrees that all Intellectual Property rights owned by either party and existing prior to the date of your Order will remain the exclusive property of that party.
- 10.2 Unless otherwise agreed in writing between you and us (including our Services Agreement) or an Order and subject to clause 10.1, all Intellectual Property Rights that are developed, commissioned or created in relation to the same (including all rights in the Deliverables and all materials, information and reports produced by us for you whether fully or partially completed) will be owned by us as such rights arise.
- 10.3 If we agree specifically in your Order (or our Services Agreement), to assign you the proprietary rights and interest in the Intellectual Property Rights that are developed, commissioned or created by us for you, then we agree to assign to you the proprietary rights and interest in the Intellectual Property Rights that are developed, commissioned or created by us for you.
- 10.4 Subject to a breach of these Terms by you, we grant you a personal, non-exclusive, non-transferable, revocable license to use our Intellectual Property during the Term (if specified by us in your Order).
WARRANTY AND LIABILITY
- 11.1 Nothing in these Terms will restrict, negate, modify or limit any of your rights under the Consumer Guarantees Act 1993 or the Fair Trading Act 1986 where you are not acquiring the Services for the purpose of a business or in trade.
- 11.2 To the extent that our liability is not otherwise limited or excluded, and to the maximum extent permitted by law, our aggregate liability to you whether in tort, contract, at law (including for a misrepresentation) or otherwise for any loss damage or injury in relation to the Services is limited to the Price actually paid by you. In such case we may, at our option, elect to:
- (a) provide a refund; or
- (b) re-perform the Services.
- 11.3 Despite anything else contained in these Terms and to the maximum extent permitted by law:
- (a) to the extent that you have approved any Deliverables prior to delivery, then you will be deemed to have accepted such Deliverables if delivered to a corresponding quality;
- (b) we will not be responsible or liable for any acts or omissions of any third parties including (without limitation) any third parties we may engage for payments made by you via our website;
- (c) Unless otherwise agreed in writing in an Order, any claim relating to the Services or returns must be made within 10 days of supply of the Services and must be accompanied by a copy of our invoice. We may make a deduction to cover handling charges;
- (d) the parties agree and acknowledge that if the Services supplied by us and acquired by you are supplied or acquired in trade within the meaning of the Fair Trading Act 1986, that sections 9, 12A, and 13 of the Fair Trading Act 1986 will not apply to the agreement between us, and that it is fair and reasonable to exclude their application;
- (e) the parties agree and acknowledge that if they are both in trade, and that the Services supplied by us and acquired by you are supplied or acquired in trade, that the provisions of the Consumer Guarantees Act 1993 will not apply to the agreement between us, and that it is fair and reasonable to exclude their application;
- (f) the parties agree and acknowledge that the provisions of Part 3 of the Contract and Commercial Law Act 2017 will not apply;
- (g) to the fullest extent permissible by law, all warranties, conditions or other terms implied by law are excluded unless these Terms expressly provide or the parties agree otherwise in writing; and
- (h) for the purposes of this clause you acknowledge that you had a reasonable opportunity to review these Terms, discuss them with us, and receive advice from your legal advisor, if you wished to do so.
- 11.4 We do not warrant that the Services and Deliverables will:
- (a) be completely free of defect or error (commonly referred to as ‘bugs’); or
- (b) be completely secure; or
- (c) work on all devices, screen resolutions, internet browsers and operating systems.
- 11.5 To the maximum extent permitted by law, we will not be liable for any indirect or consequential loss and loss of profits, whether suffered or incurred by you or another person or entity and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Services provided by us to you.
- 12.1 These Terms constitute the sole understanding of the parties in relation to its subject matter. They supersede all prior understandings, written or oral, which will be of no further force or effect. No alteration or variation or waiver of these Terms is binding unless we authorise it in writing. To the extent permitted by law, we may alter or change these Terms by notice to you.
- 12.2 You must not assign, subcontract or transfer any part of your rights or obligations under these Terms (including undergoing an effective change in your management or control) without our prior written consent. We may assign any rights or obligations without your approval as well as subcontract any obligations to third parties.
- 12.3 If any dispute arises between the parties arising out of or in connection with these Terms, or the Services performed, including any question about its existence, validity or termination, the party claiming a dispute must give notice in writing to the other party describing the nature of the dispute and the remedy sought. The parties must first seek to resolve such dispute by meeting and using good faith, reasonable endeavours to resolve the dispute.
- 12.4 If the dispute remains unresolved 20 days after notice has been given, the dispute must be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the New Zealand Dispute Resolution Centre.
- 12.5 Notice may be given personally, posted or transmitted by email or facsimile to the intended recipient at their last known address or email address or facsimile number.
- 12.6 A waiver of any provision of these Terms will not serve as a waiver of any other provision.
- 12.7 We will not be liable for any delay or failure in the performance of any of the obligations imposed by these Terms, to the extent that the failure is due to a Force Majeure Event.
- 12.8 These Terms are to be construed and governed by the laws of New Zealand and the exclusive jurisdiction of the courts of New Zealand.
- 12.9 If any provision in these Terms is held to be invalid, void or illegal or unenforceable, the validity existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
NIKA CONSULTING GROUP LIMITED
In these Terms, the following words have the following meanings:
Our IP: means intellectual property owned or licensed by Us relating to Our Website, Products or Services, including the text, graphics, logos, icons, the software and any other material underlying or forming part of this Website or Our Products or Services and includes any rights to that intellectual property, including any copyright, trade or service mark, trade or business name, logos and any other distinctive brand features, design, patent, semiconductor or circuit layout right, computer code (including source, library, object, and executable code), inventions and logical sequences, in all cases whether registered or unregistered and anywhere in the world.
Services: means any services, features or functionalities provided to You by Us including via this Website.
Website: means this website.
We, Us and Our: means Nika Consulting Group Limited (company number 7080633).
You: means the person or organisation using the Website, including you as an individual, company, business or any other entity and Your has a corresponding meaning.
ACCESS AND USE OF THE WEBSITE
You agree to access and use the Website and any Products and Services in accordance with these Terms and all applicable laws.
We grant You the right to access and use the Products and Services via the Website. This right is non-exclusive, non-transferable, and subject to these Terms (which may be amended from time to time) and all other terms and conditions are expressly excluded unless otherwise agreed in writing.
You may temporarily download one copy of the Website content for personal, non-commercial transitory viewing only.
You may not:
- archive, copy, reproduce, distribute, modify, display, publish, licence, create adaptations or derivative works from, offer for sale or use (except as expressly authorised under these Terms) any of the Website content;
- circumvent, remove, alter, disable, deactivate or otherwise interfere with any security-related features of the Website;
- use any automated tools or mechanisms including any robot, spider or scraper to access the Website or insert any code or manipulate the Website;
- reverse engineer, disassemble or decompile any software or software processes in relation to the Website;
- use the Website content for any commercial purpose, or for any public display (commercial or non-commercial);
- remove any copyright or other proprietary notices on the Website;
- install any viruses, worms, malware or other harmful or destructive software or thing that may impair the
- functionality of the Website or the ability of others to access and use the Website, Products or Services.
Under these Terms, We may:
- edit or remove any content, features or functionality of the Website; and
- monitor Your use of the Website.
If You breach these Terms, We may:
- suspend or terminate Your use of the Website; and/or
- take legal action against You.
We may terminate access to the Website at any time without notice. Our No Warranty/Disclaimers and Limitation of Liability will survive such termination.
Unless expressly provided for in these Terms (or separately agreed between us in writing), Your use of this Website or Our Products or Services do not transfer the ownership or grant any right or title in or to any of Our IP to You or any third party. You agree and acknowledge that:
You agree and acknowledge that:
- We retain all right, title and interest in and to the Our IP and You agree to not attack, dispute or contest the validity, or the ownership, of Our IP; and
- no ownership rights in any of Our IP are vested or created by the limited rights of use granted to You under these Terms and that all use of Our IP under these Terms, continues for Our benefit.
PRIVACY AND COMMUNICATION
To the maximum extent permitted by law, We expressly disclaim and exclude all representations, warranties, conditions and guarantees, including (without limitation) in respect of quality, merchantability, fitness for purpose, condition, description, manufacture, design or performance whether express, implied by common law, law merchant, trade usage, custom or otherwise or statutory in relation to the Website.
You acknowledge and agree that:
- Your use of the Website is at Your sole risk;
- The Website are provided “as is” and “with all faults”; and
- the Website may not be secure, timely, uninterrupted, error-free or otherwise reliable;
- We may cease to make available any of the Website content;
- the transmission of information via the internet is not secure and We cannot guarantee the security of Your data in transmission to or from our Website; and
- any payment made by you via our Website, is made via our third party provider and you will be redirected to that party’s site for that purpose and subject to its terms and conditions.
Our Website may contain links to other websites of which We do not have control, may not be secure and are not governed by these Terms or Our policies. Any link to other websites is not an endorsement of those websites by Us and We are not responsible for the content, accuracy, security and/or availability on those websites.
You agree to indemnify us against all liabilities, costs (including full costs between solicitor and client), losses, claims, expenses and demands incurred by Us which arise from or in connection with your access or use of the Website, including but not limited to any breach by You of warranties under these Terms, and from any third party claims arising out of or incidental to Your use of this Website.
LIMITATION OF LIABILITY
Despite anything else contained in these Terms, any liability to You by Us in respect of anything arising from or concerning these Terms, the Website, whether arising in tort (including negligence), contract, breach of statutory duty, equity or otherwise arising from any relationship with You (“Our liability”) is excluded to the fullest extent permitted by law. To the extent that Our liability cannot be excluded by law, or to the extent that the exclusion of Our liability would render these Terms unenforceable, You agree that the maximum amount that You are entitled to claim against Us (in total) and the maximum amount that We (in total) are liable to You for is one New Zealand dollar or the next largest amount that would be needed to render these Terms (including these exclusion and limitation provisions) enforceable for Our benefit. Despite anything else contained in these Terms, You agree that We are not liable to You (or to anyone else) for any failure or delay in the performance of Our obligations under these Terms to the extent that the failure or delay is caused, directly or indirectly, by an event outside Our reasonable control.
Severability: If any part or provision of these Terms are held to be invalid, illegal or unenforceable that part or provision will be deemed deleted from these Terms and the remainder of these Terms will continue to apply.
Relationship: These Terms do not create any relationship of partnership, agency, employment or joint venture between You and Us.
No waiver: Any failure or delay by either You or Us in exercising (or in partially exercising) any right, power or remedy arising from a breach of these Terms (“Right”) does not operate as a waiver of that Right unless that waiver is provided in writing and signed by the party granting the waiver. The existence of any Right of Ours expressly set out in these Terms, or the exercise of such, does not limit or prejudice any other rights, powers or remedies available to Us in contract, at law or in equity, including any rights, powers or remedies that would be available to Us if the right, power, or remedy was not set out in these Terms.
Assignment: You may not assign or transfer Your Rights or obligations under these Terms without Our prior written consent. We may assign, transfer or novate any of Our rights and obligations under these Terms without Your consent.
NZ law: These Terms shall be interpreted in accordance with, and governed by, the laws of New Zealand. Your Use of this Website, and any other matter arising from these Terms are subject to the laws of New Zealand. You agree that any dispute arising from or relating to these Terms is governed by the non-exclusive jurisdiction of the courts of New Zealand.
Entire Agreement: Unless We otherwise agree in writing, these Terms constitute the entire agreement between Us and You in relation to their subject matter.
Your Rights: The Website’s contents has not been prepared by taking into account the particular situation or needs of any individual users.
Contact: If You have any questions or concerns in relation to the website, related services or terms and conditions, please contact us via the “Contact Us” link provided on the Website.