Set out below are the terms of our agreement with you that will apply to all Services provided by Kaitiaki Studios Limited (“Kaitiaki”), unless agreed otherwise.

DEFINITIONS

"Confirmation of Order" means the total price for the Services quoted to You by Kaitiaki, including all deposits required to be paid prior to the Services being provided by Kaitiaki;

"Initial Consultation" means a review of your Order and initial discussion about the scope of your Order, which is provided free of charge to You by Kaitiaki and forms the basis of the Confirmation of Order.

“Design IP” means all (present or future) Intellectual Property Rights created, coming into existence as a result of, for the purpose of, or in connection with, the provision of the Services or these Terms (including all Intellectual Property Rights developed by Kaitiaki in undertaking the Services);

“Existing IP” means the Intellectual Property Rights of either party that are owned by or licensed to that party prior to the date the Services are provided;

“GST” means goods and services tax as defined in the Goods and Services Tax Act 1985;

“Intellectual Property Rights” means all intellectual property rights including patents, copyright, registered and unregistered designs, trade marks (both registered and unregistered), logos, business and trade names, processes, inventions, and know-how;

“Order” means an order submitted by You to Kaitiaki via telephone, email or Website for the purchase of Services;

"Price" means the total amount payable by You for the Services including all delivery costs (including freight and carriage by any means) and any other fess, surcharges or other changes payable by You;

“Services” means any and all services provided to You by Kaitiaki and includes any products supplied by Kaitiaki to You in connection with the Services;

"Terms" means these Terms of Services as amended from time to time;

"Website" means the website www.kaitiakistudios.co.nz;

"You" and "Your" means the person or entity names as the customer on the Order.

INITIAL CONSULTATION

1.1 On receipt of your Order, Kaitiaki will contact You by the method specified by You in the Order and provide You with a complimentary Initial Consultation.

1.2 Following the Initial Consultation and prior to Kaitiaki commencing the Services, Kaitiaki will provide You with a Confirmation of Order by the method specified by You in the Initial Consultation.

1.3 If You accept the Confirmation of Order (in accordance with the Acceptance provisions below) You are deemed to have accepted these Term unless otherwise provided in these Terms.

 ACCEPTANCE

2.1 All Services supplied by Kaitiaki will be governed by these Terms which may be updated or amended from time to time by posting the amended Terms on the Website. The amended Terms will be effective immediately and will apply to all Services provided to You by Kaitiaki after the date the amended Terms are posted.

2.2 Kaitiaki will not commence the supply of any Services until Kaitiaki has received the following:

(a) a Confirmation of Order acknowledging Your acceptance of these Terms; and

(b) payment of any deposits required to be paid by You to Kaitiaki as specified in the Confirmation of Order.

2.3 By accepting the Confirmation of Order provided to You by Kaitiaki, You are deemed to have accepted these Terms without amendment. Once this occurs, You may not cancel or reverse your order unless provided in these Terms or with the consent of Kaitiaki.

2.4 These Terms constitute the sole understanding between the parties, and supersede all prior understandings, written or oral, which will be of no further or effect.

PRICE

3.1 Unless otherwise agreed by Kaitiaki, the Price of the Services will be as specified in the Confirmation of Order. The Price is in New Zealand dollars and is exclusive of GST unless specifically stated otherwise. You will pay all applicable GST in addition to the Price.

3.2 If after the date of acceptance, You advise Kaitiaki that You would like to change one or more of the designs outlined in your Confirmation of Order, Kaitiaki reserve the right to:

(a) decline to make the change(s); or

(b) amend the Price to reflect the new design(s) and if necessary require an additional deposit or payment from You.

3.3 If the change in specification results in a Price decease, Kaitiaki are not obliged to refund You the difference between the Price quoted in the Confirmation of Order.

3.4 Any fee estimates or quotations for the Services provided to You by Kaitiaki in the Confirmation of Order are an estimate only and are not provided as a fixed fee.

PAYMENT

4.1 You must select an approved method of payment when submitting an Order.

4.2 Kaitiaki reserves the right to require that payment be made in full, in advance for any Services, or prior to the release of any products provided by Kaitiaki.

4.3 All Services quoted over $2,000 requires a deposit to be paid to Kaitiaki (subject to Kaitiaki's discretion). All deposits required to be paid by You to Kaitiaki, will be specified in the Confirmation of Order.

4.4 You shall pay each invoice without deduction on or before the due date as specified in Kaitiaki’s invoice. If no date is specified on the invoice, then You must pay the invoice before or on the 20th day of the month following the month of the invoice.

4.5 Kaitiaki reserves the right to charge You for any bank charges associated with processing your payment (e.g. foreign exchange charges, dishonoured cheques or automatic payments etc…).

4.6 Kaitiaki reserve the right at any time to:

(a) request a further payment towards the Price; and

(b) terminate this and/or any other agreement with You if You do not make payment of any amounts due to Kaitiaki 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.

4.7 Payment of the invoiced amount is made only when the funds have cleared through the banking system into Kaitiaki’s nominated bank account.

OVERDUE ACCOUNTS

5.1 In the event You fail to pay any amount owing under these Terms by the due date for payment, Kaitiaki may do any one or more of the following:

(a) suspend the Services or delivery of the products supplied by Kaitiaki to You in connection with the Services until payment has been made in full to Kaitiaki;

(b) charge You default interest on the outstanding amount at a rate equivalent to the Kaitiaki’s bank’s overdraft interest rate plus 2.5% per month or part month from the due date for payment until payment is made to Kaitiaki in full;

(c) withhold the products supplied by Kaitiaki to You in connection with the Services;

(d) sell the products to a bone-fide third party in which case Kaitiaki will refund You the lesser of:

- Your deposit as specified in the Confirmation Order; or

- 50% of the Price that the products are sold to a third party;

to cover Kaitiaki's costs and expenses as a result of such action together with any transportation and storage charges.

TIME AND DELIVERY

6.1 Kaitiaki shall deliver the products supplied by Kaitiaki in connection with the Services by the method specified by You in the Order. You must specify the exact location for the delivery in the Order.

6.2 Any timeframes set out in the Order or advised by Kaitiaki are an estimate only.

6.3 Kaitiaki will endeavour to complete the Services and delivery of any products in connection with the Services by the date advised in the Order. Kaitiaki must promptly notify You in writing where Kaitiaki becomes aware that there may be a delay in completing the Services by the date advised in the Order and will advise You of the estimated new date of delivery.

6.4 Unless expressly set out in these Terms, and to the extent permitted by the law, Kaitiaki excludes all other warranties or conditions relating to the Services.

6.5 Title to and ownership of any products supplied by Kaitiaki to You in connection with the Services shall remain with Kaitiaki until all monies owing by You to Kaitiaki have been paid in full.

6.6 Without prejudice to any of the rights or remedies available to Kaitiaki, risk in the products supplied by Kaitiaki to You in connection with the Services shall pass to You upon Kaitiaki delivering the products or You collecting the products.

YOUR OBLIGATIONS

7.1 You will provide in a timely manner to Kaitiaki:

(a) any documents, information or other materials as Kaitiaki may reasonably require for the performance of Kaitiaki’s obligations, and ensure that the documents, information or materials are complete and accurate in all material respects; and

(b) any references that Kaitiaki may require in order to assess Your legal status and financial position.

PRIVACY AND CONFIDENTIALITY

8.1 When completing an Order, You may be asked to provide personal information (i.e. name, address, email etc..). Kaitiaki agrees not to disclose your personal information unless permitted to do so by law.

8.2 You agree that we may use any information we have about you relating to your creditworthiness for lawful purposes.

8.3 You agree and consent to Kaitiaki collecting or obtaining your personal information (as defined in the Privacy Act 1993) from any person (including any collection agency) and to use that information for any purposes in connection with Kaitiaki's business, including for credit assessment or debt collection purposes to sending emails or other types of electronic messages that promote Kaitiaki's Services to you.

INTELLECTUAL PROPERTY RIGHTS

9.1 Nothing in these Terms changes the ownership of a party’s existing Intellectual Property.

9.2 If required, You grant to Kaitiaki a non-exclusive, royalty-free, non-transferable, irrevocable licence to use Your Existing IP as is relevant to the Services, solely for the purpose of Kaitiaki performing the Services or providing the products in connection with the Services in accordance with these Terms.

9.3 You acknowledge and agree that all Design IP created or devised by Kaitiaki, or its employees, contractors, agents or officers, in connection with the provision of the Services or providing the products in connection with the Services, shall be owned by and shall vest in Kaitiaki as and when created. To the extent You become the owner of any Design IP, You hereby assign and transfer absolutely, and shall procure the assignment of, all rights, title and interest in and to the Design IP to Kaitiaki.

9.4 Kaitiaki grants to You a non-exclusive, non-transferable licence to:

(a) use the Design IP for the purpose of utilising the Services or products for Your ordinary business purposes;

(b) lease, transfer, sell or otherwise dispose of the Services or products for Your ordinary business purposes; or

(c) to undertake repairs or refurbishments of the Design IP for maintenance purposes.

9.5 Subject to clause 9.4, You shall have no right to reproduce or copy the Design IP unless agreed in writing by Kaitiaki and must not to allow any third party to reproduce or copy the Design IP.

LIABILITY

10.1 To the extent permitted by law, in no event will Kaitiaki be liable to You under or in connection with these Terms and/or the supply of products in connection with the Services (whether in contract, tort or otherwise) for consequential loses or damages, indirect loss or any economic loss or loss of profits.

10.2 You acknowledge that Kaitiaki are not liable for any error, non-performance or breach of any of their obligations to You under these Terms as a direct or indirect result due to a cause outside of Kaitiaki's control, or on the basis of erroneous or faulty materials.

10.3 To the extend that Kaitiaki's liability is not otherwise limited or excluded, and to the fullest extent permitted by law, Kaitiaki's aggregate liability to You whether in tort, contract or otherwise for any loss, damage or injury in relation to the Services or supply of products in connection with the Services Kaitiaki supply to You is limited to the Price paid to You for the Services in respect of which the claim or claims are made.

10.4 To the fullest extent permitted by law:

(a) all warranties, conditions or other terms implied by law are excluded;

(b) You agree not to make and waive any right to make any claim against Kaitiaki under sections 9, 12A and 13 of the Fair Trading Act 1986 and You agree this is fair and reasonable; and

(c) You acknowledge that if You acquire Services and products from Kaitiaki for a business purpose, then provisions of the Consumer Guarantees Act 1993 shall not apply.

MISCELLANEOUS

11.1 No waiver of any provision of these Terms will serve as a waiver of any other provision of these Terms and we will not have waived or be deemed to have waived any provision of these Terms unless such waiver is in writing and executed by us.

11.2 If any provision in these Terms will be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.

11.3 These Terms will be deemed to be made in New Zealand and will be construed and governed by the laws of New Zealand. The parties submit to the exclusive jurisdiction of the courts of New Zealand.

11.4 These Terms shall be subject to and must be interpreted in accordance with the laws of New Zealand. The parties submit to the non-exclusive jurisdiction of the New Zealand courts.