Terms of Service

These Terms of Service ("Terms") form a legally binding agreement between Optimyze Ltd ("Optimyze", "we", "us") and the entity or person ("Client", "you") accessing or using Optimyze's managed IT services, website, and related offerings ("Services").

By signing a service agreement, submitting an order, or using our Services, you confirm that you have read, understood, and agree to be bound by these Terms and our Privacy Policy. If you are entering into this agreement on behalf of an organisation, you represent that you have authority to bind that organisation.

These Terms are governed by the laws of New Zealand, including the Contract and Commercial Law Act 2017, the Fair Trading Act 1986, and (where applicable) the Consumer Guarantees Act 1993.

Optimyze provides managed IT services including, but not limited to: managed secure IT, cloud services, cyber security, IT helpdesk support, network management, IT consultancy, communications, and artificial intelligence solutions. The specific services, service levels and pricing applicable to your engagement are set out in a separate Service Order or Master Services Agreement ("MSA").

Where there is any inconsistency between these Terms and an MSA or Service Order, the MSA or Service Order prevails to the extent of the inconsistency.

We reserve the right to modify, suspend or discontinue any aspect of our Services with reasonable notice, except where an emergency requires immediate action to protect the security or integrity of systems.

Where we provide you with credentials, access tokens or login details to portals, dashboards or client systems:

• You are responsible for keeping credentials confidential and for all activity conducted under your account.
• You must notify us immediately at support@optimyze.co.nz or +64 9 281 4142 if you suspect unauthorised access.
• You must not share credentials with unauthorised persons or use another person's credentials without permission.

As a Client, you agree to:

• Provide accurate and complete information necessary for us to deliver the Services.
• Maintain appropriate software licensing for all applications used within your environment.
• Cooperate with our engineers and grant reasonable access to systems, premises (where applicable), and documentation.
• Promptly notify us of any changes to your environment that may affect service delivery.
• Use the Services in accordance with our Acceptable Use Policy.
• Maintain adequate backups of data critical to your business, unless backup services are explicitly included in your service agreement.
• Ensure your authorised users comply with these Terms and applicable law.

Fees for our Services are set out in your Service Order or MSA. Unless otherwise agreed:

• Recurring managed service fees are invoiced monthly in advance.
• Ad hoc work, hardware, software licences, and out-of-scope services are invoiced on completion or delivery.
• Payment terms are 14 days from invoice date unless stated otherwise.
• All fees are in New Zealand Dollars (NZD) and are exclusive of GST unless stated otherwise. GST at the prevailing rate will be added to invoices where applicable.
• Late payments may incur interest at 2% per month on overdue amounts. We reserve the right to suspend Services for accounts more than 30 days overdue after providing written notice.
• We reserve the right to review pricing annually with 30 days' written notice.

All intellectual property in our tools, methodologies, platforms, documentation, and proprietary software ("Optimyze IP") remains the sole property of Optimyze or our licensors. Nothing in these Terms transfers ownership of Optimyze IP to you.

You retain ownership of your data, systems, and pre-existing intellectual property. You grant us a limited licence to access and process your data solely to the extent necessary to deliver the Services.

Any custom work, configurations, scripts or deliverables created specifically for you under a Services engagement are governed by the intellectual property provisions in your MSA. In the absence of such provisions, ownership vests in Optimyze, with a perpetual licence granted to you for internal business use.

Each party agrees to keep confidential the other party's Confidential Information (meaning non-public information that is reasonably understood to be confidential) and to use it only for the purposes of performing or receiving the Services. This obligation survives termination of the agreement for a period of 3 years.

Exceptions apply where information: (a) is or becomes publicly known through no breach of this agreement; (b) is received from a third party without restriction; (c) was independently developed; or (d) is required to be disclosed by law or a court order (in which case the disclosing party will give reasonable prior notice where permitted).

Optimyze warrants that it will deliver the Services with reasonable care and skill, using qualified personnel, consistent with industry standards for managed IT services in New Zealand.

To the maximum extent permitted by law:

• Our Services are provided to business clients. Where the Consumer Guarantees Act 1993 applies, the parties agree that the Services are acquired for business purposes and accordingly the Consumer Guarantees Act is excluded to the fullest extent permitted by section 43 of that Act.
• We do not warrant that the Services will be uninterrupted, error-free, or that all cyber threats will be detected or prevented. No security solution can guarantee 100% protection.
• Third-party products, software and platforms integrated into our Services are provided subject to the relevant vendor's terms and warranties.

To the maximum extent permitted by applicable New Zealand law:

• Optimyze's total aggregate liability to you under or in connection with these Terms (whether in contract, tort including negligence, statute, or otherwise) is limited to the total fees actually paid by you to Optimyze under the applicable Service Order or MSA giving rise to the claim ("Project Cost"). Under no circumstances shall our liability exceed the Project Cost, regardless of the nature or number of claims.
• Optimyze is not liable for any loss or damage arising from or related to the services beyond the Project Cost, including but not limited to: loss of profits, loss of revenue, loss of business opportunity, loss or corruption of data, business interruption, wasted expenditure, third-party claims, or regulatory fines — whether characterised as direct, indirect, incidental, special, consequential or punitive — even if Optimyze has been advised of the possibility of such losses and even where such losses arise directly from a failure in the services provided.
• Nothing in these Terms limits liability for death or personal injury caused by negligence, fraud, or any liability that cannot be excluded or limited under New Zealand law.

You agree to indemnify, defend and hold harmless Optimyze and its directors, employees and contractors from and against any claims, damages, losses, costs (including legal costs) arising out of or relating to: (a) your breach of these Terms; (b) your use of the Services in violation of applicable law; or (c) any claim by a third party arising from content or data you provide to us.

These Terms apply for the duration of any active Service Order or MSA. Either party may terminate for:

• Convenience: as set out in your MSA or Service Order (typically 30–90 days' written notice).
• Material breach: if the other party fails to remedy a material breach within 14 days of written notice.
• Insolvency: immediately, if the other party enters receivership, liquidation, or a voluntary administration process.

On termination, you must pay all outstanding fees. We will provide reasonable assistance in transitioning your services, as agreed, and return or securely delete your data in accordance with our data retention policy.

Neither party is liable for any failure or delay in performing its obligations caused by circumstances beyond its reasonable control, including natural disasters, acts of government, internet outages, or third-party infrastructure failures. The affected party must notify the other promptly and use reasonable endeavours to mitigate the impact.

In the event of a dispute arising out of or in connection with these Terms, the parties agree to:

1. First attempt to resolve the matter through good-faith negotiation between senior representatives within 14 days of written notice.
2. If unresolved, refer the dispute to mediation under the AMINZ Mediation Rules (or a mediator agreed by both parties).
3. If mediation fails, either party may pursue the matter in the courts of New Zealand.

These Terms are governed by the laws of New Zealand. The parties submit to the non-exclusive jurisdiction of the courts of New Zealand, specifically the Auckland District Court or High Court as appropriate.

• Entire agreement: These Terms, together with any MSA and Service Order, constitute the entire agreement between the parties regarding the Services and supersede all prior representations or agreements.
• Severability: If any provision is held to be invalid or unenforceable, the remaining provisions continue in full force.
• Waiver: Failure to enforce any provision is not a waiver of future enforcement rights.
• Assignment: You may not assign your rights or obligations without our prior written consent. We may assign our rights to a successor entity without your consent.
• Notices: Legal notices must be in writing and sent to legal@optimyze.co.nz or our registered address.

For questions about these Terms:
Optimyze Ltd
Email: hello@optimyze.co.nz
Phone: +64 9 281 4142