Terms and conditions

Our terms of use are below.

Optimi Limited (“we”, “our” or “us”) undertakes work helping not-for-profits and businesses to utilise their digital tools in more optimised and human centric ways.

Thanks for choosing to work with us. We look forward to partnering with you to optimise your digital tools. 

Before we can get started, it is important to agree to certain contractual terms setting out the arrangements between you and us. Our Optimi Limited Terms and Conditions (“T&Cs’’) below set out the terms and conditions for your engagement with us. 

Please ensure that you read these T&Cs before signing the Optimi Limited Scope of Work. 

 

Optimi Limited Terms and Conditions  

Definitions and Interpretation  

In these T&Cs, unless the context indicates otherwise: 

“Business Day” means any day other than a Saturday, Sunday or a statutory public holiday in Wellington, New Zealand. 

“Commencement Date’’ means the Commencement Date specified in the Scope of Work.

“Confidential Information’’ means any and all information relating to the Scope of Work and any and all information of whatever nature directly or indirectly concerning the activities, business, finances, software, know-how, data (technical or non-technical), trade secrets, projects and forecasts, and information relating to systems or processes, marketing information, Your Data and any other information and/or Intellectual Property, relating to or owned by a party or which is obtained directly or indirectly by on party from the other party under or in connection with the Scope of Work, in each case whether such information is oral, written or embodied in any other physical or electronic form.

“End Date’’ means the end date specified in the Scope of Work. 

“Expenses” means all out of pocket expenses (including travel and accommodation expenses) incurred by us in connection with the provision of Services. 

“Force Majeure Event” means an event or occurrence which is beyond a party’s reasonable control (including, without limitation, acts of God or the public enemy, flood, earthquake, storm, cyclone, tornado, hurricane, lightning, fire, explosion, epidemic, pandemic, war, embargoes, riot or civil disturbances), and which the affected party could not have taken reasonable measures to prevent.

“GST” means goods and services tax chargeable, or to which a person may be liable, under the Goods and Services Tax Act 1985. 

“Intellectual Property” means any patent, design, trade mark, copyright, know-how, trade secret, confidential information and any other proprietary right or form of intellectual property (whether protectable by registration or not) in respect of any technology, concept, idea, data, documentation, written material, program or other software (including, without limitation, in source and object codes), specification, formula, drawing, program, design, system, process, business name, trade name, trade mark, service mark, logo, mark, style or other matter or thing, existing or conceived, used, developed or produced by any person or used in relation to such technologies which is not already available in the public domain.

“Personal Information” means information about an identifiable individual, or an individual whose identity can be reasonably ascertained, from that information. 

“Privacy Law” means any applicable legislation or regulation (including the Privacy Act 2020) which affects privacy or any Personal Information (including the collection, storage, handling, use or processing of Personal Information), including any codes of conduct, administrative decisions, directives or orders made or issued under such legislation.

“Scope of Work’’ means the Optimi Limited Scope of Work agreed between you and us for the provision of the Services. 

“Services” means the services set out in the Scope of Work. 

“Services Charges” means the fees and charges for the provision of the Services as set out in the Scope of Work. 

“Your Data” means your information and data (in any form) supplied by you (or any of your personnel or representatives) to us in connection with the Services.

Term 

Each Scope of Work shall commence on the Commencement Date and shall continue until the End Date (“Term”).

Services

We agree to perform the Services set out in the agreed Scope of Work. Unless we agree otherwise with you, we will commence providing the Services on the Commencement Date and cease providing the Services on the End Date. 

Each Scope of Work incorporates these T&Cs.  

Variations to the Services 

If you wish to change or add to any of the Services, please write a request to us with details of the proposed changes or additions. We will advise whether we can make your proposed changes or additions within [fourteen (14) Business Days] of your request. Proposed changes or additions to the Services will likely involve a change to the Services Charges set out in the Scope of Work. We will let you know what the change to the Services Charges (and any other changes or requirements in order for us to agree the proposed change) will be and ask for your written agreement to the new Scope of Work and new Services Charges and other changes and requirements before proceeding. 

What we agree to do

In carrying out the Services, we will:

  • act in a professional manner, including by taking reasonable steps to ensure any employees, subcontractors, agents or service providers engaged by us act in a courteous, prompt and professional manner;

  • exercise the degree of skill and diligence that would reasonably and ordinarily be expected from a reasonable and experienced service provider performing similar services to the Services; 

  • use our reasonable efforts to perform the Services within the agreed timeframes;

  • act in accordance with your reasonable directions;

  • exercise reasonable care and skill in the handling of records belonging to you or your customers;

  • supply all equipment, materials and other resources (if any) which are necessary to ensure performance of the Services;

  • comply at all times with all relevant laws and regulations in respect to the provision of the Services; and

  • submit invoices to you in accordance with the Scope of Work and these T&Cs.  

What you agree to do

In order to assist and facilitate our provision of the Services, you agree to:

  • provide us with access to your information and systems reasonably necessary to provide our Services;

  • provide us with help we reasonably ask for to assist us in the provision of the Services;

  • use reasonable skill, care and diligence in your dealings with us; and

  • comply at all times with the law.

Service Delays 

As soon as we become aware of any matter that may cause failure to comply with any timeframes set out in the Scope of Work, we will promptly inform you in writing (“Delay Notice’’).  The Delay Notice must include:

  • details of the matter that may cause us to fail to comply with the relevant timeframes;

  • the steps which we will take to minimise the delay;

  • recommendations to minimise any adverse effects that may result from the delay; and

  • the extension (if any) that we request for meeting the relevant obligation (and all dependent obligations).

Within ten (10) Business Days of receiving the Delay Notice, you will notify us whether you agree to the extension of time referred to in the Delay Notice.  

You acknowledge that: 

  • if you do not notify us whether you agree to the extension of time referred to in the Delay Notice, the timeframes for our Services in the Scope of Work may be impacted; and 

  • where we are unable to perform Services on or by the agreed date for any reason outside our reasonable control as a result of any act or omission by you, or you request that Services be rescheduled (for any reason), we shall not be considered in breach of the Scope of Work as a consequence of such matters, and we shall not be under any obligation to reschedule, and any rescheduling shall be at our sole discretion (acting reasonably). 

Our Training Materials

If we provide any training materials to you in connection with the provision of the Services (including but not limited to hard copy training materials or by way of access to a website owned or managed by us), these remain our property (including any Intellectual Property) and are provided to you on the basis that they are solely for your use, for internal purposes. 

Our training materials are not to be shared with third parties, nor are they intended to be relied upon by third parties. You agree not to share any training materials with any third party without our prior written permission. 

Our engagement with you does not grant any rights to you to use or reproduce our training materials for commercial purposes. 

Anonymized Information 

Anonymized Information: You hereby grant us a perpetual, non-exclusive, royalty-free and irrevocable license to derive anonymous statistical and usage data (but not Your Data) (Anonymous Data) from your use of our Services and any deliverables. Such Anonymous Data cannot be used to identify you, and can be used for the purposes of combining or incorporating such Anonymous Data with or into other similar data and information obtained from other customers or users, or to enable us to improve, sell, and otherwise promote our products and services. 

Intellectual Property

Background IP: All Intellectual Property rights connected with our Services that exist before we start providing the Services and any modifications, enhancements or developments to these rights (“Background IP”) are and will remain owned by us.

Project IP: All Intellectual Property rights created or developed as a result of our engagement with you or provision of the Services (“Project IP’’) will be owned by us.

Intellectual Property in Your Data: You retain title to, and all Intellectual Property rights in, Your Data. You grant us a non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate Your Data for any purpose in connection with the exercise of our rights and performance of our obligations under the Scope of Work. 

Feedback: If you provide us with ideas, comments or suggestions relating to our Services or any deliverables (“Feedback”), we own all Intellectual Property Rights in that Feedback, and anything created as a result of that Feedback (including new material, enhancements, modifications or derivative works). 

A party will only use the other party’s Intellectual Property in accordance with the Scope of Work, unless prior written consent has been otherwise obtained from the other party.

Diagnose Phase Report: We may prepare a report at the Diagnose Phase of our Services as described in the Scope of Work (‘’Report’’).  You agree that: 

  • we grant you and any third party authorised by you, a perpetual, non-transferable and non-exclusive licence to use Background IP and Project IP contained in that Report for the purpose of implementing any recommendations in the Report, but not for any other purpose; 

  • we can use your logos and trademarks on any Report, but solely for the purposes of providing the Services to you; and

  • we may use the same or substantially similar report formats with other clients including any Reports we may have worked up especially for you.  In doing so, we will not use any of Your Data that has gone into those reports (which will always remain yours). 

Optimise and Ongoing Support Phase: If we provide Services in the Optimise and Ongoing Support Phase, we grant you a perpetual, royalty-free, non-transferable and non-exclusive licence to use any Background IP and Project IP incorporated in any deliverable we provide to you in the course of providing the Services during the Optimise and Ongoing Support Phase, for internal business purposes only to operate and maintain such deliverables. Such Intellectual Property not to be commercialised or published by you.

Services Charges

Services Charges and Expenses: In consideration of the provision of the Services by us, you shall pay us the Services Charges and Expenses. 

GST: Unless otherwise described, all amounts referred to in the Scope of Work (including but not limited to Services Charges, fees and expenses) do not include GST. 

Invoicing and Payment 

Services Charges: We will issue you with GST invoices in the manner set out in the Scope of Work.  Each invoice shall include details of the Services supplied to you. 

Payment: Subject to a dispute being raised under the Scope of Work, you agree to pay the amount in each invoice in the manner specified in the Scope of Work within fourteen (14) days after receiving the invoice. 

Disputed Invoices: If you dispute the accuracy of any invoice, you shall within ten (10) Business Days after receipt of the invoice, give written notice of that fact to us. That notice shall state the basis of the dispute and give relevant supporting details. You shall pay the undisputed portion of the invoice and may withhold payment of the portion disputed.  If the parties do not resolve the dispute within ten (10) Business Days of the date of the notice, the dispute shall be determined in accordance with the ‘Disputes’ provision of these T&Cs.

Deposits: You acknowledge and agree that any deposit paid by you to us for the Services is non-refundable. 

Fee Estimates: If we provide estimates to cover reasonable expenses in our Scope of Work and we approach exceeding our estimates, we will notify you and seek prior approval before exceeding this estimate. 

Service Delays: If work is paused or significantly delayed for reasons beyond our control, we will invoice for work to date. 

Non Payment

We will be entitled to charge interest at 2% per month on any amounts which remain unpaid after their due date. We may suspend the provision of the Services until payment has been made in full (including interest).  In addition, you will be liable for any debt collection costs, legal costs, and any other expenses which may be incurred by us in enforcing payment of overdue invoices.

Amendments 

We have sole discretion to update and/or amend these T&Cs from time to time.  In the event we update and/or amend these T&Cs during the Term, we will promptly advise you of any changes by notice in writing to you.  If you continue your instructions or engagement with us fourteen (14) days after such notice, then this shall constitute your acceptance of the changes.

Ending the Scope of Work

Either party may end the Scope of Work by written notice to the other party if the other party:

  • doesn’t comply with the terms of the Scope of Work, or breaches or fails to properly perform any of its material obligations under the Scope of Work, and the non-compliance is not remedied by the breaching party within seven (7) Business Days upon written notice from the other party that it is in breach of the Scope of Work; or

  • commits an act of bankruptcy or makes any assignment or composition with its creditors, becomes liable to be placed in liquidation, cannot pay its debts when they fall due or is deemed not to be able to pay them in accordance with Section 287 of the Companies Act 1993, has a liquidator appointed or its Board or shareholders propose or pass a resolution to appoint a liquidator, or has a receiver manager or statutory manager appointed.

You may end the Scope of Work at any time on [90 days’ written notice to us].

On the end or expiry of the Scope of Work: 

  • each party shall immediately provide to the other party, all Confidential Information, data or other information (including Your Data) belonging to the other party that it holds; and 

  • you shall, within ten (10) Business Days of the end or expiry of the Scope of Work, pay for all Services (or part thereof) performed or provided in accordance with the Scope of Work prior to the end or expiry date of the Scope of Work.

The parties will still be liable for anything they did or failed to do before the Scope of Work ended, and for Services Charges accrued to the end of the Scope of Work. 

Confidentiality

Neither party shall (and shall procure that its employees, contractors and subcontractors do not), without the prior agreement of the other party, at any time, directly or indirectly: 

  • use, disclose, publish or permit the disclosure or publication of Confidential Information of the other party obtained in connection with the Scope of Work; 

  • use Confidential Information other than for the purpose for which it was provided, except,

  • to the extent disclosure is required by law or legally binding order of a court; 

  • to the extent disclosure is necessary for that party to perform its obligations or enforce its rights under the Scope of Work; 

  • information which is publicly available without any cause attributable to the disclosing party; or

  • to the extent the party who owns the Confidential Information has given its prior written consent to such disclosure.

Your Data: Subject to any term to the contrary in the Scope of Work, we agree:

  • we will not use any of Your Data for our own purposes or for any purposes other than those contemplated by the Scope of Work or our Privacy Policy;

  • in connection with our access to and dealings with you, comply with all laws, including Privacy Law; and

  • use our reasonable endeavours to ensure that all Your Data in our possession or control of from time to time is kept secure.

Security breach: If either party becomes aware of or suspects that any unauthorised person has obtained, attempted to obtain, or may obtain access to any Confidential Information or data of the other party, that party shall immediately notify the other party and the parties shall work together to take such steps as are available to them to identify the unauthorised person and mitigate the effects of such unauthorised access.

Privacy

The parties agree to comply with the requirements of Privacy Law in relation to the Services provided pursuant to the Scope of Work, and the parties will use and disclose Personal Information obtained in the course of providing the Services only for the purposes of the Scope of Work or otherwise in accordance with Privacy Law. 


You warrant on a continuing basis that you have obtained and will obtain all legally required consents and permissions from relevant parties (including data subjects) for the use, processing and transfer of Personal Information as described in these T&Cs or the Scope of Work.

Branding: The parties agree not to publish, display or otherwise use the name, brand, logo (or any similar name, brand or logo) of the other party without the agreement of the other party; or do anything that causes harm or damage to the other party’s reputation or brand.  

Liability

Consequential Loss: In no circumstances will either party, its employees or agents be liable, whether in contract, equity, tort (including negligence, breach of statuary duty or otherwise) or any other theory of liability, for any direct or indirect: loss of profits, loss of revenue, loss of corruption of data, loss of anticipated savings; or for any indirect, special or consequential loss whatsoever. 

Cap on Liability: To the extent permitted by law, our (including our employees, subcontractors and agents under or in connection with the Scope of Work) total aggregate liability to you will be limited to the total Services Charges received by us under the Scope of Work.

Subcontractors

We are free to engage service providers and otherwise sub-contract any part of the Services, but in that case we will remain responsible to you for the performance of the Services.

Relationship: We are engaged by you as an independent contractor and our relationship with you is not one of employment, agency or partnership. 


Poaching

During the term of the Scope of Work and for a period of six (6) months after its expiry or termination, you may not solicit for employment, directly or indirectly through a related or associated company, or otherwise engage or employ any person who is or was engaged or contracted by us for the purposes of delivering the Services, unless written approval has been obtained from us. 

Disputes

Dispute Notice and meeting:  A party may, at any time while there is a genuine dispute relating in any way to the Scope of Work (“Dispute”), give written notice (“Dispute Notice”) to the other party specifying the subject matter of the Dispute and requiring that the representative of each party meet, within ten (10) Business Days after delivery of the Dispute Notice, to attempt to resolve the Dispute. The representatives will make all reasonable attempts to resolve the dispute at the dispute resolution meeting. 

Mediation:  If the representatives fail to resolve the Dispute within ten (10) Business Days of the Dispute Notice, or if either party fails or refuses to attend the Dispute Resolution Meeting, the parties will immediately be deemed to have submitted the Dispute to mediation in New Zealand by a single mediator agreed upon in writing by the parties or (if the parties are unable to agree on a mediator within five Business Days after the submission to mediation) nominated by the President for the time being of the New Zealand Law Society.  

Legal Proceedings:  Neither party may issue legal proceedings (except for urgent injunctive relief) unless the parties have first attempted to resolve the Dispute through meeting and mediation under these T&Cs. 

Notices 

Any notice given under the Scope of Work will be deemed to be validly given if personally delivered, posted, or emailed to the relevant address set out in the Scope of Work.  Any notice given pursuant to the Scope of Work will be deemed to be validly given:

  • in the case of electronic mail, upon receipt by the receiving party;

  • in the case of posting, on the fifth (5) day following the date of posting,

provided that any notice posted or sent by electronic mail either after 5pm on a Business Day or on a day that is not a Business Day will be deemed to have been received on the next Business Day.

No assignment  

You may not assign or transfer (or purport to assign or transfer) your interest in the Scope of Work without our prior written consent (which consent shall not be unreasonably withheld).

Further assurances 

Each party shall do all things (including executing all documents) necessary to implement and to carry out its obligations under the Scope of Work.

Waiver 

No exercise or failure to exercise or delay in exercising any right or remedy by a party will constitute a waiver by that party of that or any other right or remedy available to it.

Force Majeure

A party shall not be liable for any failure or delay in performance of any obligations under the Scope of Work (other than payment obligations) to the extent such failure or delay is due to a Force Majeure Event.  No such failure or delay will be considered a default under the Scope of Work. 

Survival

Termination or expiry of the Scope of Work shall not terminate any provisions of the Scope of Work which by their nature should survive termination.

Governing Law

The Scope of Work is governed by and construed in accordance with the law of New Zealand.  The parties irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New Zealand for the purpose of hearing and determining any disputes or proceedings arising out of or in connection with the Scope of Work.