1. Agreement
These Terms of Service (Terms) form a legally binding agreement between you (you, your, or Client) and Wana Stay 2025 Limited (NZBN 9429053225986), trading as APEX AI (we, us, our, or APEX AI). By signing an Order Form, accepting a written quote or proposal, or otherwise instructing us to commence the Services, you agree to be bound by these Terms.
These Terms apply to business clients only. The Services are not offered to consumers, and the Consumer Guarantees Act 1993 does not apply to the extent permitted by law (see clause 13).
If there is any conflict between these Terms and an Order Form, the Order Form prevails for that engagement.
2. Definitions
In these Terms:
• Client Data means any data, content, contact list, database, lead record, customer record, message template, image, audio, video, branding asset or other material provided by Client to APEX AI, or made accessible to APEX AI on Client’s behalf, for the purposes of delivering the Services.
• Confidential Information has the meaning given in clause 10.
• End Recipient means an individual whose contact details are contained in Client Data and who may receive SMS or other electronic messages as part of a Campaign.
• Fees means all setup fees, subscription fees, retainer fees, per-message or per-lead fees, performance fees, success fees, commissions and other amounts payable by Client to APEX AI under an Order Form.
• Order Form means a written or electronic document (including any proposal, quote, statement of work, service order or online sign-up flow) executed or accepted by Client that describes the Services, deliverables, term and Fees for a particular engagement.
• Services means the SMS automation, voice automation, electronic automation, lead-reactivation, campaign management, analytics, and related agency services described in an Order Form, together with any other services we agree in writing to provide.
• SMS Laws means the Unsolicited Electronic Messages Act 2007 (NZ) and any equivalent law in any other jurisdiction in which a Campaign is sent, and the Privacy Act 2020 (NZ) and any equivalent privacy law in such a jurisdiction.
3. The Services
APEX AI is an automation agency. Our Services typically involve:
• Taking Client Data (including customer and lead databases supplied by the Client) and using it to design and run SMS-based automation campaigns aimed at re-engaging dormant leads and converting them into sales for the Client (each, a Campaign);
• Drafting message copy and conversation flows (which may use artificial intelligence or large language model technology) for review and approval by Client;
• Configuring third-party SMS, CRM, automation and AI platforms on Client’s behalf, including obtaining required sub-accounts and number provisioning;
• Sending SMS messages on Client’s behalf, handling replies (including through AI-assisted automations), routing qualified leads to Client, and reporting on results;
• Such other agency, consulting or implementation services as set out in an Order Form.
We will use reasonable care, skill and professional judgement in providing the Services. We do not, however, guarantee any particular result, response rate, conversion rate, return on investment or volume of sales. The Client acknowledges that outcomes depend heavily on factors outside our control, including the quality and recency of Client Data, the Client’s offers, the Client’s sales follow-through, and the behaviour of End Recipients.
4. Fees and payment
4.1 Fee models
Fees for each engagement are set out in the applicable Order Form. Fees may take any one or more of the following forms (or such other form as the parties agree):
• Setup fee — a one-off fee for onboarding, configuration and Campaign build, payable on signature of the Order Form.
• Subscription / retainer — a recurring monthly (or other agreed period) fee for ongoing Services, payable in advance.
• Per-message or per-lead fees — usage-based fees calculated on the volume of messages sent, leads contacted or other metric specified in the Order Form, payable in arrears.
• Performance / commission fees — fees calculated as a percentage of, or fixed amount per, qualifying outcome (e.g. a confirmed sale, booked appointment, or conversion event) attributed to a Campaign. The Order Form will define the qualifying outcome, the attribution window, the source of truth for reporting, and the dispute process.
4.2 GST and other taxes
All Fees are stated exclusive of GST and any other applicable taxes, duties or levies, which the Client must pay in addition.
4.3 Invoicing and payment terms
We will invoice Client in accordance with the Order Form. Unless an Order Form says otherwise, invoices are payable within 7 days of the invoice date by direct credit or other method we notify in writing.
4.4 Late payment
Without limiting any other right we have, if Client fails to pay an invoice by its due date:
• We may charge default interest on the overdue amount at 2% above the Reserve Bank of New Zealand official cash rate, calculated daily;
• We may suspend the Services (including pausing live Campaigns) on notice to Client, and we will not be liable for any loss arising from that suspension; and
• Client must reimburse us for all reasonable costs (including legal costs on a solicitor-client basis and debt-collection costs) we incur in recovering the overdue amount.
4.5 Third-party costs
Some Services require third-party platforms (for example, SMS gateways, CRM platforms, AI providers and hosting). The Order Form will specify whether such costs are: (a) included in the Fees; (b) on-charged to Client at cost; or (c) paid directly by Client to the third party. Where Client pays a third party directly, Client is responsible for maintaining the relevant account in good standing.
4.6 Fee changes
We may change our Fees on at least 7 days’ written notice, taking effect from the start of the next billing period after the notice period ends. If Client does not accept the change, Client may terminate the relevant Order Form by giving written notice before the change takes effect; otherwise the new Fees apply.
5. Client obligations
Client must:
• Provide accurate, current and complete information needed for us to deliver the Services, including Client Data, business details, branding, and the offers to be promoted;
• Hold all rights, consents and authorisations necessary for APEX AI to use Client Data to deliver the Services, including (without limitation) consent from each End Recipient to receive commercial electronic messages from Client in compliance with SMS Laws;
• Promptly review and approve message copy, conversation flows and other deliverables we submit for approval, and take responsibility for the content of Campaigns once approved;
• Promptly forward to us any unsubscribe, opt-out or privacy request received directly by Client that relates to a Campaign, and not contact (or instruct any third party to contact) any End Recipient who has opted out;
• Comply with all applicable laws and any reasonable directions we give to maintain the integrity of the Services and our sub-processors’ platforms;
• Pay all Fees on time and in cleared funds.
6. SMS, privacy and consent
The parties acknowledge the following critical compliance points:
• Consent is the Client’s responsibility. Client warrants that every End Recipient in any Client Data supplied to APEX AI has given valid consent (express or, where permitted, inferred) to receive commercial electronic messages from Client, in accordance with the Unsolicited Electronic Messages Act 2007 and any other applicable law. Client must be able to produce evidence of that consent on request.
• Identification and unsubscribe. Every commercial SMS we send on the Client’s behalf will identify the Client as the sender (or, where Client requires, will identify APEX AI as acting on Client’s behalf) and will include a functional unsubscribe instruction (such as replying STOP). Client must not request that we send messages without an unsubscribe instruction.
• Opt-outs are permanent. Once an End Recipient opts out (whether via reply STOP, contact with Client, or otherwise), we will suppress that number across all Campaigns we run for Client. Client must not re-add an opted-out number to a Campaign.
• Privacy. Each party will comply with the Privacy Act 2020 and any other applicable privacy law in relation to personal information processed under these Terms. Our handling of personal information is described in our Privacy Policy available at https://apexai.co.nz/privacy-policy. When we process personal information contained in Client Data, we do so on Client’s behalf and in accordance with Client’s instructions and the Order Form.
• Prohibited content. Client must not instruct us to send (and we may refuse to send) messages that are unlawful, misleading, deceptive, harassing, defamatory, discriminatory, scam-like, or relate to PROHIBITED CATEGORIES, e.g. illegal goods, adult content, multi-level marketing without disclosure. We may refuse, suspend or remove any content at our sole discretion if we reasonably believe it breaches this clause.
7. Acceptable use
Client must not, and must not permit any third party to:
• Use the Services to send unsolicited messages, spam, or content that violates SMS Laws or any other applicable law;
• Upload or transmit any material that infringes third-party intellectual property rights, contains malware, or breaches any duty of confidence;
• Reverse-engineer, decompile, or attempt to obtain the source code of any software, AI model or system used to deliver the Services, except to the extent expressly permitted by law;
• Resell, sublicense, or make the Services available to any third party without our prior written consent (other than to End Recipients in the ordinary course of a Campaign);
• Use the Services to compete with APEX AI or to build a competing product.
8. Intellectual property
8.1 Our IP
As between the parties, APEX AI owns all intellectual property rights in the Services, the methodologies, workflows, prompt structures, AI configurations, templates, code, automations and reporting dashboards we develop or use to deliver the Services, including any improvements made during an engagement (APEX IP).
Subject to payment of all Fees due, we grant Client a non-exclusive, non-transferable, royalty-free licence to use APEX IP solely as required to receive and use the Services during the term of the relevant Order Form.
8.2 Client IP
Client owns all intellectual property rights in Client Data and in Client’s branding, offers, products and services (Client IP). Client grants APEX AI a non-exclusive, royalty-free, worldwide licence to use Client IP solely for the purpose of delivering the Services for Client.
8.3 Aggregated data
We may collect and use aggregated, anonymised data derived from delivery of the Services (for example, average response rates by industry) for the purpose of operating, improving and benchmarking our Services. We will not include any data that identifies, or could reasonably be used to identify, Client or any End Recipient.
9. Term and termination
9.1 Term
These Terms apply from the date Client first accepts them (or first instructs us to commence the Services) and continue until terminated. Each Order Form has its own term as set out in that Order Form.
9.2 Termination for convenience
Either party may terminate an Order Form for convenience on at least 30 days’ written notice to the other party, unless the Order Form specifies a minimum term, in which case termination for convenience takes effect at the end of that minimum term (or as otherwise provided in the Order Form).
9.3 Termination for cause
Either party may terminate these Terms or any Order Form immediately by written notice if the other party:
• Commits a material breach and fails to remedy it within fourteen (14) days after receiving written notice requiring remedy;
• Becomes insolvent, has a receiver, liquidator or statutory manager appointed, enters into a compromise with its creditors, or ceases to carry on business; or
• Engages in conduct that we reasonably consider may bring APEX AI, our other clients or our sub-processors into disrepute or expose us to legal risk.
9.4 Consequences of termination
On termination of an Order Form:
• Client must pay all Fees accrued up to the date of termination, including any fees for work performed but not yet invoiced, and any non-refundable setup fees;
• Subject to receiving payment of all outstanding Fees, we will provide a final report and (on Client’s reasonable written request within thirty (30) days of termination) a copy or export of Client Data;
• Within 30 days of termination, we will delete or de-identify Client Data from our systems, except where we are required by law to retain it or where it is reasonable to keep aggregated, anonymised data and suppression lists (records of opt-outs) for ongoing compliance;
• Clauses that by their nature should survive termination (including clauses 8, 10, 11, 12, 13, 14, 15 and 16) survive.
10. Confidentiality
Confidential Information means any information disclosed by one party (Discloser) to the other (Recipient) that is marked confidential, or that a reasonable person would understand to be confidential given its nature and the circumstances of disclosure. It includes Client Data, APEX IP, Client IP, pricing, business plans, customer lists, and personal information.
The Recipient must:
• Use Confidential Information only to perform its obligations or exercise its rights under these Terms;
• Keep Confidential Information secure and not disclose it to any third party except to its personnel, contractors and professional advisors who need to know it for those purposes and who are bound by equivalent confidentiality obligations;
• Not use Confidential Information for any other purpose.
Confidential Information does not include information that is or becomes publicly available without breach of these Terms, that the Recipient already lawfully held without restriction, that is independently developed without reference to the Discloser’s information, or that the Recipient is required to disclose by law (in which case the Recipient must, where lawful, notify the Discloser first).
11. Warranties and disclaimers
11.1 Mutual warranties
Each party warrants that: (a) it has full power and authority to enter into these Terms; (b) entering into and performing these Terms will not breach any contract or law that applies to it; and (c) it will comply with all laws applicable to its performance of these Terms.
11.2 No guarantee of results
Without limiting clause 3, we do not warrant or guarantee any particular sales, leads, response rates, conversion rates, deliverability rates or return on investment from any Campaign. AI-generated content may be inaccurate, incomplete or inappropriate for context; Client is responsible for approving content before it is sent.
11.3 Exclusion of implied terms
To the maximum extent permitted by law, all conditions, warranties and other terms implied by statute, common law or otherwise (including the Consumer Guarantees Act 1993 and the implied terms in the Contract and Commercial Law Act 2017) are excluded. Client confirms it is acquiring the Services for the purposes of a business, and that sections 9, 12A and 13 of the Fair Trading Act 1986 do not apply.
12. Liability
12.1 Exclusion of indirect loss
To the maximum extent permitted by law, neither party is liable to the other for any indirect, special, consequential or punitive loss, or for any loss of profits, revenue, goodwill, business opportunity, data, anticipated savings or reputation, however caused (whether under contract, tort (including negligence), statute, equity or otherwise), even if that party knew or should have known of the possibility of such loss.
12.2 Cap on liability
Subject to clause 12.3, each party’s total aggregate liability to the other arising out of or in connection with these Terms or any Order Form, however caused (whether under contract, tort (including negligence), statute, equity or otherwise), is limited to the total Fees paid by Client to APEX AI under the relevant Order Form during the three (3) month period immediately preceding the first event giving rise to the liability.
12.3 Carve-outs
Nothing in these Terms excludes or limits a party’s liability for: (a) fraud or wilful misconduct; (b) breach of clause 10 (Confidentiality); (c) breach of clause 13 (Indemnity); (d) infringement of the other party’s intellectual property rights; or (e) any liability that cannot be excluded or limited by law.
13. Client indemnity
Client indemnifies and holds harmless APEX AI, its directors, officers, employees, contractors and sub-processors from and against any and all loss, damage, cost, expense (including legal costs on a solicitor-client basis), penalty, fine, claim or liability of any kind arising out of or in connection with:
• Any breach by Client of these Terms or any Order Form, including any breach of the warranties or obligations in clauses 5, 6 or 7;
• Any Client Data, message content, offer, product or service of Client, including any claim that any of them is unlawful, misleading, deceptive, defamatory, infringes a third-party right, or has caused harm to any End Recipient;
• Any claim that an End Recipient did not give valid consent to receive commercial electronic messages from Client, or any breach by Client of the Unsolicited Electronic Messages Act 2007, the Privacy Act 2020, the Fair Trading Act 1986 or any equivalent law in any other jurisdiction; and
• Any unauthorised access to, or use of, Client’s account or credentials, except to the extent caused by APEX AI’s negligence or wilful misconduct.
We will: notify Client promptly of any claim covered by this indemnity; allow Client to control the defense and settlement (provided any settlement that admits liability or imposes obligations on us requires our prior written consent, not to be unreasonably withheld); and provide reasonable cooperation at Client’s cost.
14. Force majeure
Neither party is liable for failure or delay in performing its obligations (other than an obligation to pay money) where the failure or delay is caused by an event beyond its reasonable control, including acts of God, natural disasters, epidemics or pandemics, war, terrorism, civil disturbance, government action, failure of internet or telecommunications infrastructure, failure of any third-party platform we use to deliver the Services (Force Majeure Event). The affected party must promptly notify the other and use reasonable efforts to mitigate the impact. If a Force Majeure Event continues for more than thirty (30) consecutive days, either party may terminate the affected Order Form on written notice.
15. Dispute resolution
If a dispute arises between the parties in connection with these Terms or any Order Form:
• The party raising the dispute must give written notice to the other party describing the dispute and the relief sought;
• Senior representatives of each party (with authority to settle) must meet within ten (10) working days of the notice and negotiate in good faith to resolve the dispute;
• If the dispute is not resolved within twenty (20) working days of the notice, either party may refer the dispute to mediation administered by NZ Dispute Resolution Centre or AMINZ], with the mediator’s fees shared equally; and
• Either party may seek urgent interlocutory relief at any time.
16. Governing law and jurisdiction
These Terms and any Order Form are governed by, and must be construed in accordance with, the laws of New Zealand. The parties submit to the exclusive jurisdiction of the courts of New Zealand.
17. General
17.1 Changes to the Terms
We may amend these Terms from time to time. The current version is available at https://apexai.co.nz/terms. We will advise our Client when we have made any material changes to our terms. The updated Terms take effect on the date stated in the notice. If Client does not accept the change, Client may terminate the relevant Order Form by written notice given before the effective date.
17.2 Notices
Notices under these Terms must be in writing and sent to: (a) APEX AI at [email protected] (with a copy to sent to Sidekick, Spencer House Mall, 31 Dunmore Street, Wanaka, 9305 NZ); and (b) Client at the email address recorded on the most recent Order Form. A notice is taken to be received when sent (if by email and the sender does not receive a bounce-back) or three (3) working days after posting (if by registered mail).
17.3 Assignment
Client must not assign or transfer any right or obligation under these Terms without our prior written consent. We may assign or novate these Terms to a related body corporate or to a successor of our business (for example, in connection with a sale, merger or restructure) without Client’s consent.
17.4 Subcontracting
We may subcontract any of our obligations, but we remain responsible to the Client for the subcontracted performance.
17.5 Independent contractors
The parties are independent contractors. Nothing in these Terms creates a partnership, joint venture, agency, employment or fiduciary relationship between them.
17.6 No waiver
A failure or delay by a party to exercise any right under these Terms is not a waiver of that right. A waiver is only effective if it is in writing and signed by the waiving party.
17.7 Severability
If any provision of these Terms is held to be invalid or unenforceable, that provision must be read down to the minimum extent necessary to make it valid and enforceable, or (if it cannot be read down) severed, without affecting the remaining provisions.
17.8 Entire agreement
These Terms, together with each Order Form and any document expressly incorporated by reference, are the entire agreement between the parties about their subject matter and supersede all earlier communications, representations and agreements.
17.9 Counterparts and electronic signature
An Order Form may be signed in counterparts and by electronic signature. Counterparts together form one document.
18. Contact us
If you have any questions about these Terms, please contact us:
APEX AI (Wana Stay 2025 Limited)
Email: [email protected]
Phone: 027 289 1555
Address: Sidekick, Spencer House M
all, 31 Dunmore Street, Wanaka, 9305