General Trading Terms and Conditions

Version Number: 2024.02 - Valid from: 01 February 2024

Introduction

These Terms & Conditions apply to all services provided to you under the Customer Agreement. They form part of the Customer Agreement between you and Accumul8 Limited (trading as acceler8 Teams, acceler8r Consulting, and System User Bridge). 

1. Accumul8 Limited (Accumul8) Responsibilities

1.1 Services: We will provide the services to you:

a. According to any specifications and the Support Policy.

b. By any time agreed in writing or otherwise within a reasonable time.

c. Using reasonable care and skill.

d. Using qualified and experienced personnel.

1.2 Faults: If a fault is identified in the services, we will:

a. Promptly investigate the cause of the fault.

b. Use our best efforts to meet restoration times.

c. Take necessary action to minimize the impact and prevent recurrence.

You may need to pay our standard charges if:

a. We work outside agreed hours or business hours.

b. We find there is no fault.

c. The fault was caused by you.

d. The fault is due to lack of protection like MFA, antivirus, or anti-malware.

e. We assist with a fault not related to our services.

1.3 Suspension or Restriction of Services:

We may suspend all or part of a service if:

a. Regular or urgent maintenance is required.

b. Compliance with government, emergency services, or other authorities' instructions.

c. A Force Majeure Event affects the service.

d. Non-payment of invoices for 30 business days without resolution.

2. Customer Responsibilities

2.1 Cooperation: You will provide reasonable cooperation to enable us or our agents to install, repair, replace, and maintain our services.

2.2 Customer Equipment: Unless agreed otherwise in writing, you are responsible for your equipment and must ensure it is:

a. Technically compatible with our services and not harmful.

b. Connected and used according to relevant instructions, standards, or laws.

We may be unable to provide services if these requirements are not met.

2.3 Use of Services: You will:

a. Follow our and manufacturers' reasonable directions.

b. Adhere to specific policies and terms described in the Product Specifications.

c. Implement processes to limit the impact of viruses, worms, or other destructive media.

2.4 Abuse and Fraud: You will use the services for lawful purposes only and will not:

a. Use the services for fraudulent or destructive purposes.

b. Cause interference with the use of our services.

2.5 Responsibility for Others: You are responsible for your staff and customers who use the services, ensuring they also meet these obligations.

3. Confidentiality

Both parties must:

a. Maintain all confidential information in strict confidence.

b. Ensure secure storage of confidential information.

c. Prevent wrongful disclosure of any confidential information.

d. Only disclose confidential information to approved employees or officers who need it.

e. Use confidential information solely for approved purposes.

f. Notify the other party if legally required to disclose confidential information and assist in protecting its confidentiality.

4. Charges and Credits

4.1 Our Fees: Fees will be charged as set out in the relevant Customer Agreement, unless otherwise agreed. You will pay all charges related to the services, plus any applicable taxes.

4.2 Commencement of Fees: We may begin invoicing for the services as agreed in the Customer Agreement. Recurring fees that are fixed may be billed one month in advance, otherwise, fees are normally billed in arrears.

4.3 Payment: You must pay all undisputed fees by the due date, without set-off or deduction. Payment may be made by cash, direct credit, or as otherwise agreed. Recurring fees are non-refundable. We may request payment in advance for managed services, hardware, or project work and withhold them until payment is made.

4.4 Disputed Fees: If you dispute a fee in good faith, you may withhold payment if you:

a. Pay all undisputed fees by the due date.

b. Provide a written explanation of the reasons for the dispute within 60 days of receiving the invoice.

c. Cooperate to resolve the disputed fee.

If the dispute relates to billing errors, we may credit or debit the net difference of any overcharge or undercharge. Disputes greater than 90 days after the invoice will not be accepted.

4.5 Late Payment: We may take steps to recover overdue payments or protect ourselves from additional costs. These steps may include:

a. Charging interest on unpaid fees 10 days after the due date.

b. Withholding services if fees remain overdue for more than 10 days.

c. Suspending all support services if fees remain overdue for more than 20 days.

d. Suspending all services if fees remain overdue for more than 30 days.

4.6 Credit Approval: You may need to pay a deposit or provide a guarantee for future charges. If you exceed any credit limit, we may restrict or suspend services without notice, but you remain liable for all fees and any unpaid interest.

4.7 Changes to Fees: We may change the fees if:

a. We agree to change the services at your request.

b. Our costs to provide services increase due to third-party actions, with at least one month's notice.

c. We decide to change the cost of services, with at least one month's notice.

4.8 Estimates and Quotes: All prices stated in the Customer Agreement are correct unless stated as estimates. Estimates do not foresee every circumstance, and we will notify you if an estimate will be exceeded. Quotes are valid for 30 days unless stated otherwise and may be varied or withdrawn before acceptance.

5. Transition Out Services

5.1 Our Obligations: Upon your request and at your expense, we will:

a. Provide cooperation, assistance, advice, explanations, and information for the orderly cessation of services.

b. Follow reasonable directions to ensure completion and transition of services.

5.2 Scope: Transition out services may include:

a. Developing or modifying a continuity and transition plan.

b. Continuing to provide services for a reasonable period up to six months following termination.

c. Providing necessary documentation, data formats, and records.

5.3 Fees: Transition out services are subject to reasonable additional charges.

6. Property Rights

6.1 Intellectual Property: We own or are licensed to use the copyright in any software, manuals, or other works provided to you.

6.2 Title to Software, Equipment, and Numbers: We or our suppliers retain title and all property rights to software, equipment, or services provided. You do not acquire any ownership rights and may not sell, license, or provide these to others without permission.

6.3 Changes to Addresses, Numbers, or Codes: We may change any electronic address, number, or code allocated to you with at least one month's notice if necessary.

6.4 Software License: We grant you a non-exclusive, non-transferable license to use software provided with the services for your internal business use and according to licensing requirements. We may suspend your use of any software if you fail to comply with licensing requirements.

6.5 Upgrades: We may provide software upgrades or new versions at our discretion. We may require you to migrate to a new version of the services.

6.6 Restrictions: You are not granted the right to:

a. Use software or services for third parties or time share activities.

b. Access source code, reverse engineer, decompile, modify, or copy software.

c. Modify services or combine them with non-Accumul8 goods or services without consent.

6.7 Indemnity by Us: We indemnify you against direct losses, damages, liabilities, claims, and expenses arising from:

a. Injury or death caused by our negligence.

b. Fraudulent or willful misconduct by us.

c. Third-party claims of intellectual property infringement, provided we defend and settle the claim at our expense.

6.8 Indemnity by You: You indemnify us against losses, damages, liabilities, claims, and expenses arising from:

a. Acts or omissions by you or your representatives.

b. Injury or death caused by your negligence.

c. Fraudulent or willful misconduct by you.

d. Third-party claims related to unauthorized use or modification of services.

6.9 Notification of Infringement: You will notify us of any suspected infringement of our intellectual property rights. We will:

a. Procure your right to continue using the services.

b. Replace or modify the services to prevent infringement.

7. Termination

7.1 Termination by Default: Either party may terminate the Customer Agreement immediately by written notice if:

a. The other party is insolvent.

b. Representations or warranties are proven false.

c. The other party commits a material breach and fails to rectify it within 10 business days.

7.2 Termination by You: You may terminate a service immediately by written notice if we:

a. Register a Severity One for a service for 3 or more consecutive months.

b. Register a Severity One for 3 months in any 6-month period.

c. Register a Severity Two for a service for 6 or more consecutive months.

7.3 Termination at Any Time: Customer Agreements may be terminated:

a. By you on 3 months' written notice.

b. By us on 3 months' written notice after the service term.

c. If notice under clause 7.1 results in termination of the last remaining Customer Agreement.

7.4 Termination Charges: If you cease using our services before the end of the service term, you will be deemed to have terminated and we may claim termination charges as a genuine pre-estimate of our loss.

7.5 Return of Software/Hardware: Upon termination or expiry of the Customer Agreement, you will return any software/hardware provided by us. If you fail to do so within 10 business days, we may charge you a rental fee or enter your premises to recover the items at your expense.

7.6 Security of Interest: We have a security interest in any goods provided until you have paid for them in full. Any agreement to purchase goods constitutes a security agreement under the Personal Property Securities Act 1999.

7.7 Continuing Rights and Responsibilities: Termination does not affect any rights and responsibilities intended to continue or come into force after the Customer Agreement ends.

8. Liability

8.1 Warranties Excluded: All warranties, representations, or conditions relating to services (whether express, implied, or statutory) are excluded to the fullest extent permitted by law.

8.2 Exclusions and Limitations: Neither party will be liable for indirect or consequential losses, including loss of data, business, revenue, profit, goodwill, or savings. Our maximum liability is limited to the total fees for the affected services in the 3 months preceding the cause of action, but not more than 20% of the total fees for the affected services in any 12-month period.

8.3 Transmission Over Our Network: You will indemnify us against all losses, liabilities, damages, and expenses resulting from illegal use or third-party claims arising from information transmitted over our network by you or your agents.

8.4 Force Majeure: Neither party will be liable for failure or delay in complying with any obligation due to a Force Majeure Event. The affected party must promptly notify the other party and use best efforts to mitigate the effects and resume performance as soon as practicable.

9. Dispute Resolution

Disputes will be resolved through good faith discussions, referral to senior management, and if necessary, mediation by an independent mediator. If mediation fails, disputes may be referred to arbitration in accordance with the Arbitration Act 1996.

10. General

10.1 Safety and Security: Each party will meet the other's safety and security requirements when on their premises and comply with all applicable laws, including the Health and Safety at Work Act 2015.

10.2 Password for Online Access: You will keep access codes confidential and ensure they are used only for your business purposes.

10.3 Your Information: We may collect and use your information to provide services, administer the agreement, and comply with legal obligations. Information may be shared with employees, related companies, suppliers, contractors, credit reference, and debt collection agencies.

10.4 Benefit to Our Suppliers and Related Companies: The limitations and exclusions of liability and confidentiality obligations extend to our related companies and suppliers.

10.5 Supply by Our Related Companies: Services may be provided by us or any of our related companies.

10.6 Subcontracting: We may subcontract responsibilities but remain liable for their performance.

10.7 Consumer Guarantees Act: The provisions of the Consumer Guarantees Act 1993 do not apply to services provided under this agreement.

10.8 Notices: Notices must be in writing and sent to the specified address. Notices by post are assumed delivered in 5 business days; notices by email are assumed delivered upon receipt of confirmation.

10.9 Changes to the Agreement: Variations to the agreement must be requested by your designated representative and agreed in writing.

10.10 Changes to These Terms and Conditions: These terms and conditions may change without notice. Amendments will be posted on our website.

10.11 Independent Contractor: We provide services as an independent contractor. The agreement does not create a partnership, employer/employee, principal/agent, or joint venture relationship.

10.12 Governing Law: The agreement is governed by New Zealand law, and both parties submit to the jurisdiction of NZ courts.

10.13 Invalidity: If any provision is invalid or unenforceable, it will be deemed deleted, and the remaining provisions will continue in full force and effect.

10.14 Entire Agreement: These Terms and Conditions supersede all prior agreements and constitute the entire understanding between the parties.

Definitions and Interpretation

"Customer Agreement" Our agreement to provide services to you, including key details of   our relationship, represented by any of the following documents:

- Your Customer Agreement

- Service Agreements & Service Level Agreements

- Statements of Work

- Proposals

- Related Product Specifications

- Our Support Policy

- Accepted Quote

- Signed Contract

- Application Form

- Terms and Conditions

"Billing Cycle" The period from the 25th of one month to the 24th of the next month.

"Business Days" Monday to Friday, excluding national public holidays and the   provincial anniversary day applicable to us.

"Business Hours" 8:00 am to 5:30 pm on Business Days.

"Commencement Date" The date on which the Customer Agreement is signed by both parties.

"Confidential Information" Any information related to the other party or its related companies,   or their business, provided before or during the Customer Agreement,   including copies and derived materials.

"Customer," "you," or "your" The customer identified in the Agreement.

"Due Date" The date specified on the invoice, or if no date is specified, 30   days from the date of the invoice.

"Extraordinary Circumstances" Situations beyond our reasonable control affecting service   provision.

"Fault" A defect or issue in a service that causes an interruption.

"Fees" All charges related to the services, plus any applicable taxes.

"Force Majeure Event" An event beyond reasonable control, including:

- Natural disasters (acts of God)

- Strikes by third-party employees

- Government actions or omissions

- Accidents, explosions, or failures of public utilities

- Sabotage, hacking, riots, civil disturbances, epidemics, or wars

- Undetectable computer viruses or worms

- Third-party network infrastructure failures

It does not include:

- Events avoidable with reasonable care at reasonable cost

- Lack of funds or inability to pay

- Strikes or work stoppages by our employees unless part of an   industry-wide campaign.

"Insolvent" A party is considered insolvent if:

- They are unable to pay debts or are bankrupt.

- They make an arrangement with creditors.

- They go into receivership or have a trustee appointed.

- A resolution is passed or proceedings started for winding up.

- They attempt to assign obligations under the Customer Agreement   improperly.

“Accumul8," "we," "us," or "our" Accumul8 Limited, trading as acceler8 Teams, acceler8r Consulting,   and System User Bridge (or any other related companies)

"Move, Add, or Change" Any addition, removal, or change to users, applications, or   services.

"Our Network" All network connections and computer equipment used by us to provide   services to you.

"Party" Refers to either us or you, or both as the context requires.

"Product Specification" Any product or service specification, including any incorporated   documents.

"Related Company" Any company connected to us as defined in the Companies Act 1993.

"Representative" Any officer, employee, agent, contractor, or subcontractor of a   party.

"Restoration Time" The standard time taken to resolve a service problem as per our   Service Level Agreement.

"Services" All products and services we agree to provide you under any Customer   Agreement.

"Service Commencement Date" The date we start providing a service, as specified in the Customer   Agreement.

"Service Levels" The targets we aim to achieve for service performance, unless   otherwise stated in the Customer Agreement.

"Service Agreement" Any agreement signed by us and you regarding specific services.

"Service Problem" A fault with any service provided by Accumul8.

"Service Term" The initial term defined in each Customer Agreement.

"Severity Level" The severity of incidents based on business impact and urgency.

"Severity One" An incident causing a severe interruption to the business, requiring   immediate attention.

"Severity Two" An incident impeding business functionality but not critically, with   a temporary workaround available.

"Statement of Work" A detailed description of work to be performed, signed by us and   you.

"Support Policy" The Accumul8 support policy available on our website.

"Termination Charges" Fees payable if you terminate services early, as defined in the   Customer Agreement.

"Terms & Conditions" These terms and conditions applicable to all services we provide   under the Customer Agreement.

"Third-Party Materials" Materials, equipment, services, or software provided by someone   other than us.

In these Terms and Conditions, unless the context otherwise requires:

- Headings are for convenience and do not affect interpretation.

- The singular includes the plural and vice versa.

- All references to currency are to New Zealand dollars and exclude   taxes.

- References to statutes include amendments and replacements.

- "Includes" or "including" does not imply any  limitation.

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