Terms of Trade
Unless we agree otherwise in writing, these Terms of Trade apply each time You use GKC to provide Services. The details relating to the Services will be agreed separately in the Service Details as defined below. By agreeing the details relating to the Services, You agree to be bound by these Terms of Trade.
1.1 Meaning: In the Agreement, the following terms have the stated meaning:
Agreement: these Terms of Trade (comprising clauses 1 to 10) and any Service Details.
Confidential Information: the Agreement and any information that is obtained from the other party in the course of, or in connection with, the Agreement, but does not include information that is public knowledge. Intellectual Property owned by GKC is GKC’s Confidential Information. Your Data is Your Confidential Information.
Fees: the fees set out in any Service Details.
Force Majeure: an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care.
GKC: GKC Limited
Intellectual Property Rights: includes copyright and all rights conferred under statute, common law or equity relating to inventions (including patents), registered or unregistered trade marks and designs, circuit layouts, data and databases, Confidential Information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a corresponding meaning, and includes any modification, enhancement or derivative work of Intellectual Property.
Products: proprietary or third party software, SaaS solutions, and other products, including any related documentation.
Services: the services to be performed by GKC under any Service Details, including the provision of deliverables and other outputs described in any Service Details and the reselling of Products.
Service Details: a statement of work, purchase order, quote, service agreement, managed service agreement, or other document (including an exchange of emails) agreed in writing by us for the supply of Services, and which sets out (amongst other things) the detailed description of the Services to be provided and Fees.
Sales Tax: goods and services tax, value added tax, sales tax or equivalent tax payable under any applicable law.
We, us, or our: You and GKC.
Year: a 12-month period from the date the first Service Details is agreed or an anniversary of that date.
You: the person procuring the Services.
Your Data: any data, document or other information that is not public knowledge, that is made available by You relating to Your operations and Your customers, and which, by its nature, would reasonably be considered to be commercially sensitive.
a No term of the Agreement is to be read against a party because the term was first proposed or drafted by that party.
b Clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement.
c The singular includes the plural and vice versa.
d Including and similar words do not imply any limit.
e The Agreement and any dispute connected with it are governed by New Zealand law and the Courts of New Zealand have non-exclusive jurisdiction for any proceeding relating to it.
f Unless stated otherwise in any Service Details by reference to the relevant clause in these Terms of Trade, if there is any conflict between a Service Details and these Terms of Trade, these Terms of Trade prevail.
2.1 GKC: GKC will provide the Services:
a in accordance with the relevant Service Details and all applicable laws;
b exercising reasonable care, skill and diligence; and
c using skilled, experienced and qualified staff.
a If requested by GKC (and regardless of anything to the contrary in any Service Details), Your request for the resale or making available of Products must be accompanied by a purchase order that satisfies the requirements of the third-party vendor of the Products.
c Despite anything to the contrary in the Agreement, ownership, and Your access to and use, of a Product is governed by the third-party licence or other terms, and the Agreement does not apply to the Product. To avoid doubt, GKC has no liability to You relating to any Product, including your access to and use of the Product.
2.3 You: You will:
a promptly make decisions (including providing approvals) and provide GKC with all information reasonably required by GKC to provide the Services;
b use skilled, experienced and qualified staff;
c use all Services (including deliverables and other outputs) for lawful purposes and in a manner that complies with all applicable laws and the Agreement; and
d back up Your Data in accordance with standard industry practice.
3.1 Fees: You must pay the Fees, plus Sales Tax (if any), to GKC for providing the Services, in accordance with any payment terms set out in any Service Details.
3.2 Estimates: Where GKC provides an estimate, this is provided for budget purposes only. While GKC will use reasonable efforts to provide the Services (including, to avoid doubt, any Product) within the estimate, the Fees GKC bills will be the actual time and costs incurred by GKC or the actual Product price. GKC will advise you in advance if GKC cannot provide the Services within the estimate.
3.3 Expenses: At the same time as You pay the Fees, you will also pay GKC any expenses which You have agreed in advance to pay.
3.4 Payment: Where the Service Details do not set out payment terms, then the following payment terms will apply.
a. You must pay the Fees, plus Sales Tax (If any), monthly in arrears. The payment of Sales Tax is subject to GKC supplying You with a valid tax invoice.
b. GKC’s invoice is due and payable by the 20th of the month following the date of invoice. All amounts must be paid
electronically in cleared funds without any set off or deduction.
3.5 Overdue amounts: GKC may charge interest on overdue amounts, provided it notifies You of this in advance of charging that interest. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by GKC’s primary trading bank as at the due date plus 2% per annum.
a On or around the anniversary of the Agreement’s start, GKC may adjust any standard service rate or recurring Fee once each Year by an amount not exceeding the then current rate or Fee, plus 5%. Any rate or Fee adjusted under this clause is deemed to be the rate or Fee set out in the Agreement.
b Where the cost of a Product is charged in a particular currency but GKC has priced the Fee in another currency, if on the
payment date GKC would suffer loss caused by an exchange rate fluctuation, GKC may adjust the Fee so that the amount
received by GKC is the same as it would have received if the Fee was paid on the date that the Fee proposal was submitted to
You. That adjusted Fee is deemed to be the Fee set out in the Service Details.
4.1 Security: Each of us agrees that, unless it has the prior written consent of the other party, it will:
a keep confidential at all times the Confidential Information of the other party; and
b only disclose Confidential Information to staff or professional advisors on a need to know basis and will ensure the staff and advisor is aware of, and complies with, clause 4.1a.
4.2 Disclosure: The obligations of confidentiality in clause 4.1 do not apply to any disclosure:
a for the purpose of performing the Agreement, or exercising a party’s rights, under the Agreement;
b required by law; or
c of Confidential Information which:
i is publicly available through no fault of the recipient of the Confidential Information or its personnel; or
ii was rightfully received from a third party without restriction and without breach of any obligation of confidentiality
4.3 Return of information: Except to the extent that a party has ongoing rights to use Confidential Information, a party must, at
the request of the other party following the expiry or termination of the Agreement, promptly return to the other party or destroy all Confidential Information of the other party in the recipient party’s possession or control.
5. INTELLECTUAL PROPERTY
5.1 The following Intellectual Property remains the property of the current owner, regardless of its use in the Services:
a Intellectual Property that existed prior to the date of the Agreement; and
b Intellectual Property that was developed independently of the Agreement, which includes the following for the listed party.
You: Your Data.
GKC: All existing processes, methodologies, templates, diagrams, code, scripts, modelling, measurements, and software used to provide the Services.
5.2 Know-how: To the extent not owned by GKC, You grant GKC a royalty-free, transferable, irrevocable and perpetual licence to use for GKC’s own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by GKC in the provision of the Services.
5.3 Ownership going forward:
a Subject to the remainder of this clause 5 except to the extent new Intellectual Property incorporates Your look and feel or branding (with this look and feel or branding being owned by You), all new Intellectual Property created or developed by GKC in providing the Services, is owned by GKC on creation.
b GKC grants You a non-transferable and fully paid licence to use GKC Intellectual Property provided as part of the Services within New Zealand for Your internal business purposes for the longer of term of the Agreement or the period set out in the relevant Service Details.
6.1 General: GKC warrants:
a the Services will be provided by suitably skilled, experienced and qualified staff;
b that the Services will, at the time they are provided, materially conform to any requirement set out in the Service Details; and
c any further warranty set out in a Service Details.
6.2 Breach of warranty: If the Services do not meet a warranty, at Your request and at GKC’s cost, GKC must reperform the Services so that they meet that warranty. GKC’s obligation under this clause 6.2 is Your sole remedy against GKC for breach of warranty.
a The warranties in clause 6.1 do not apply to Products.
b GKC will not be in breach of warranty to the extent that the breach arose from:
i Your breach of the Agreement;
ii use of Your Data;
iii modification of the Services by a person other than GKC.
c To the maximum extent permitted by law, GKC’s warranties are limited to those stated in clause 6.1. Any implied condition or warranty (including any warranty under applicable law (including, in the case of New Zealand, Part 3 of the New Zealand
Contract and Commercial Law Act 2017)) is excluded.
d You agree and represent that You are acquiring the Services for the purposes of trade. We agree that:
i to the maximum extent permissible by law, any applicable consumer law (including, in the case of New Zealand, the New Zealand Consumer Guarantees Act 1993) does not apply to the supply of the Services or the Agreement; and
ii it is fair and reasonable that the parties are bound by the Agreement, including this clause 6.3d.
7.1 Maximum liability: The maximum aggregate liability of GKC under or in connection with the Agreement in any Year, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed the Fees (excluding any Fee paid for Products procured on your behalf as part of the Services) paid by You to GKC under the Agreement in that Year.
7.2 Unrecoverable loss: GKC shall have no liability under or in connection with the Agreement for:
a loss of profit, revenue, data, savings, business, revenue, and/or goodwill; and/or
b indirect, consequential or incidental loss or damage.
7.3 Unlimited liability: Clauses 7.1 and 7.2 do not apply to limit GKC’s liability for:
a personal injury or death;
b fraud or wilful misconduct; or
c breach of clause 4.
7.4 No liability for the other’s failure: Neither of us will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent the failure is directly caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its staff.
7.5 Mitigation: Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.
7.6 Time bar: You may not make any claim against GKC under or in connection with the Agreement unless the claim is notified to GKC (including setting out the grounds on which the claim is made) within 12 months after the relevant event giving rise to the liability occurred.
8.1 No fault termination: Except to the extent set out in a Service Details, either party may terminate the Agreement on no less than one month’s prior notice to the other party.
8.2 Other termination rights: Each of us may, by notice to the other party, immediately terminate the Agreement if the other party:
a breaches any material provision of the Agreement and the breach is not:
i remedied within 14 days of the receipt of the notice from the first party requiring it to remedy the breach; or
ii capable of being remedied;
b becomes, or threatens to become, insolvent, bankrupt or the subject of any similar action or administration, or ceases to continue business or trading for any reason.
8.3 Partial termination: Where one of us has a right to terminate the Agreement it may, instead of terminating the Agreement in full terminate an affected Service Details and any Service Details that the terminating party considers to be associated with that affected Service Details. Clauses 8.4 and 8.5 apply, with all necessary changes, to a partial termination.
8.4 Consequences of termination:
a Termination of the Agreement does not affect each party’s rights and obligations accrued before the termination date.
b You must pay for Services provided before the termination date. For recurring Fees, this may require a pro-rated invoice to be submitted by GKC with the pro-rated Fees paid by You.
8.5 Obligations continuing: Clauses which, by their nature are intended to survive termination, including clauses4, 5, 7, 8.4 and 8.5, continue in force.
a Good faith negotiations: Before taking any court action, a party must use best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
b Obligations continue: Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.
c Right to seek relief: This clause 9 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.
10 GENERAL PROVISIONS
10.1 Non-solicitation: From the Agreement’s start to a date that is 12 months after its termination date, You must not solicit, employ, engage the services of, or entice any member of GKC’s personnel (whether an employee or contractor) to terminate their position, employment or relationship with GKC. If You breach this clause, You must pay GKC a fee of 15% of the individual’s annual remuneration as the time of the breach to cover the cost of replacing the relevant individual.
10.2 Force Majeure: Neither of us 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:
a immediately notifies the other party and provides full information about the Force Majeure;
b uses best efforts to overcome the Force Majeure; and
c continues to perform its obligations as far as practicable.
10.3 Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
10.4 Independent contractor: GKC is Your independent contractor. No other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
10.5 Notices: A notice given by a party under the Agreement must be delivered via email to an email address notified by the other party for this purpose.
10.6 Severability: Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.
a Except as set out in clauses 3.6 and 10.7b, any variation to the Agreement (including, to avoid doubt, any Service Details) must be in writing and signed by both parties.
b By giving at least one month's notice, GKC may change these Terms of Trade. The changed Terms of Trade will take effect at the end of that notice period. If You do not want to be bound by those new Terms, you may terminate the Agreement by notice to GKC, provided that notice is given to GKC prior to the changed Terms of Trade taking effect.
10.8 Entire Agreement: The Agreement sets out everything agreed by the parties relating to the Services and supersedes and cancels anything discussed, exchanged or agreed prior to the Agreement’s start.
10.9 Subcontracting and assignment: Neither party may assign, subcontract or transfer any right or obligation under the Agreement without the prior written approval of the other (not to be unreasonably withheld). The first party remains liable for its obligations under the Agreement despite any approved assignment, subcontracting, or transfer.
10.10 Counterparts: Any Service Details may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing and sending (including by email) a counterpart copy to the other party.
Appendix – Product Terms
AppDynamics - On-premises licence: https://legal.appdynamics.com/OnPremise_EULA.pdf
Gemini Data - https://support.geminidata.com/learn/tag/eula/
Elasticsearch - https://www.elastic.co/eula
Cribl - https://cribl.io/license
Terms are effective 1 February 2021