Terms and Conditions
Our Terms and Conditions- for Subscriptions and Services
Sun Gum Saan Limited is a charitable company which provides education and teaching resources for the teaching of the Aotearoa New Zealand Histories Curriculum.
1. Acceptance
1.1. By subscribing and using our Services, you agree to these Terms and Conditions and our Privacy Policy. All these terms are together referred to as Terms from now on.
1.2. We are only responsible for the teaching resources and the services you have signed up for.
1.3. All variations to our Services must be agreed to in writing between you and us and will be priced in accordance with any schedule of rates provided by us or otherwise as reasonably agreed between you and us.
1.4. We may vary our prices for any Subscription or Service from time to time by notice on our website.
2. Account
2.1. You must choose a Subscription and agree to these Terms before you create an Account in order to access and use our Platform.
2.2. We may suspend your access to our Services where we reasonably believe there has been unauthorised access to or use of our Services (e.g. sharing of login details). If we suspend your access, we will let you know within a reasonable time of doing so and will work with you to resolve the matter. If it cannot be resolved, we may terminate your account and access to our Services.
3. Subscriptions
3.1. Once you have chosen a Subscription, you will be able to create your account.
3.2. Details of your Subscription are based on the options in the signup page you selected, including the Subscription Features, Subscription Fees, and Subscription Periods.
3.3. During the Subscription Period, you will be billed for the Subscription Fees on a recurring basis, as set out on the signup page (Billing Cycle).
3.4. Your Subscription may be upgraded or downgraded at any time through your Account. Any upgrades to your Subscription will take effect immediately and you will be charged the difference between your current Subscription and your new Subscription. Any downgrades to your Subscription will take effect from the beginning of the next Subscription Period.
3.5. You will be billed for any Subscription Fees due at the beginning of each Billing Cycle. If you choose to pay your Subscription Fees using one of our third-party payment processors, you may need to accept their terms and conditions.
3.6. You must not pay, or attempt to pay, any Subscription Fees by fraudulent or unlawful means. If you make payment by debit or credit card, you must be the authorised card holder. If payment is made by direct debit, by providing your bank account details and accepting this Agreement, you authorise our nominated third-party payment processor to debit your bank account in accordance with your chosen Subscription, and you confirm that you are either the holder or an authorised signatory of that bank account.
3.7. Late Payments: If any Subscription Fees are not paid on time, we may:
a) Suspend your access to our Services (including access to your Account); and
b) Charge interest on any overdue payments at a rate equal to the Reserve Bank of New Zealand’s cash rate, from time-to-time, plus 5% per annum, calculated daily and compounding monthly.
3.8. Taxes: You are responsible for paying any levies or taxes associated with your use of our Services, for example goods and Services tax or withholding taxes (unless we are required by law to collect these on your behalf).
4. Account Licence
4.1. While you have an Account, we grant you and your Authorised Users a right to use your Account (which may be suspended or revoked in accordance with this Agreement). This right cannot be passed on or transferred to any other person and, if you have a Subscription, will also be subject to the conditions of your Subscription.
4.2. You must not (and you must ensure that your Authorised Users do not):
a) access or use your Account in any way that is improper or breaches any laws, infringes any person's rights (for example, intellectual property rights and privacy rights), or gives rise to any civil or criminal liability;
b) interfere with or interrupt any other person’s access to or use of their Account with us;
c) use your Account in any way that involves service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single user login, or time-sharing;
d) circumvent user authentication or security of any of our networks, accounts or hosts or those of any third party; or
e) access or use your Account to transmit, publish or communicate material that is, defamatory, offensive, abusive, indecent, menacing, harassing or unwanted.
5. Availability, Disruption and Downtime
5.1. While we strive to always make our Services available to you, we do not make any promises that these will be available 100% of the time. Our Services may be disrupted during certain periods, including, for example, as a result of scheduled or emergency maintenance.
5.2. Our Services (including your Account) may interact with, or be reliant on, products or Services provided by third parties, such as cloud hosting service providers. To the maximum extent permitted by law, we are not liable for disruptions or downtime caused or contributed to by these third parties.
5.3. We will try to provide you with reasonable notice, where possible, of any disruptions to your access to our Services.
6. Intellectual Property
6.1. We own all intellectual property rights in our Services (including your Subscription and Account). This includes how your Account looks and functions, as well as our copyrighted works, trademarks, inventions, designs and other intellectual property. You agree not to copy or otherwise misuse our intellectual property without our written permission (for example, to reverse engineer or discover the source code of our intellectual property), and you must not alter or remove any confidentiality, copyright or other ownership notice placed on our website.
6.2. We may use any feedback or suggestions that you give us in any manner which we see fit (for example, to develop new features). You agree that we owe you no financial benefit as a result of any use by us of your feedback or suggestions.
Your Data
6.3. When you use our Services, we may create anonymised statistical data from your usage of our Services (for example, through aggregation). Once anonymised, we own that data and may use it for our own purposes, such as to provide and improve our Services, to develop new Services or product offerings, to identify business trends, and for other uses we communicate to you. This may include making such anonymised data publicly available, provided it is not compiled using a sample size small enough to make underlying portions of Your Data identifiable.
6.4. If you do not provide data from your usage to us, it may impact your ability to receive our Services.
7. Confidential Information and Personal Information
7.1. While using our Services, you may share confidential information with us, and you may become aware of confidential information about us. You agree not to use our confidential information, and to take reasonable steps to protect our confidential information from being disclosed without our permission, and we agree to do the same for your confidential information. This also means making sure that any Authorised Users, employees, contractors, professional advisors or agents of ours or yours only have access to confidential information on a ‘need-to-know basis’ (in other words, the disclosure is absolutely necessary), and that they also agree to not misuse or disclose such confidential information.
7.2. However, either you or we may share confidential information with legal or regulatory authorities if required by law to do so.
7.3. We collect, hold and disclose and use any Personal Information you provide to us in accordance with our privacy policy, available at [insert link], and applicable privacy laws.
7.4. You must only disclose Personal Information to us if you have the right to do so (such as having the individual’s express consent).
7.5. We may need to disclose Personal Information to third parties, such as our related companies or our service providers (for example, IT and administrative service providers and our professional advisors).
8. New Zealand Consumer Laws
8.1. To the maximum extent permitted by law, our warranties are limited to those expressly stated in this Agreement. Any implied condition or warranty (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) is excluded.
8.2. You agree and represent that you are acquiring the Services for the purposes of trade. The Parties agree that:
a) to the maximum extent permitted by law, the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the Fair Trading Act 1986 do not apply to the supply of the Services or the Agreement; and
b) it is fair and reasonable that the Parties are bound by this Agreement, including this clause 8.2.
8.3. This clause 8 will survive the termination or expiry of this Agreement.
9. Warranties and Representations
9.1. Each Party represents and warrants that:
a) it has full legal capacity, right, authority and power to enter into this Agreement, to perform its obligations under this Agreement, and to carry on its business; and
b) this Agreement constitutes a legal, valid and binding agreement, enforceable in accordance with its terms.
9.2. You represent and warrant that:
a) all information and documentation that you provide to us in connection with this Agreement is true, correct and complete;
b) entering into this Agreement and using your Account has been done solely in reliance on your own judgment and not on any warranties or representations made by us.
c) no insolvency events (including but not limited to bankruptcy, receivership, voluntary administration, liquidation or creditors’ schemes of arrangement) affecting you or your property are occurring or are likely to occur; and
d) if you enter into this Agreement as a trustee of a trust, then:
(i) you are a trustee of the relevant trust and have been validly appointed;
(ii) you have full and valid power, authority, consents and approvals under the relevant trust deed to execute the Agreement and carry out the transactions contemplated by the Agreement; and
(iii) you have the right to be indemnified out of the assets of the relevant trust for all liabilities incurred by you under the Agreement.
10. Liability
10.1. To the maximum extent permitted by law, we will not be liable for, and you release us from liability for, any Liability caused or contributed to by, arising from or in connection with:
a) your computing environment (for example, your hardware, software, information technology and telecommunications Services and systems); or
b) your failure to comply any prescribed curriculum or other laws or regulations relating to teaching and teaching content or Ministry of Education requirements.
c) any use of our Services by a person or entity other than you or your Authorised Users.
10.2. Regardless of whatever else is stated in this Agreement, to the maximum extent permitted by law:
a) neither we or you are liable for any Consequential Loss;
b) a party’s liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the actions (or inactions) of the other party, including any failure by the other party to mitigate its loss; and
c) our aggregate liability to you for any Liability arising from or in connection with this Agreement will be limited to the amount of any Subscription Fees paid by you to us in respect of the supply of the relevant Services to which the Liability relates.
11. Termination
11.1. We may terminate this Agreement (meaning you will lose access to our Services, including access to your Account, and any Subscription will be cancelled) if:
a) you fail to pay your Subscription Fees when they are due;
b) you or your Authorised Users breach this Agreement and do not remedy that breach within 14 days of us notifying you of that breach;
c) you or your Authorised Users breach this Agreement and that breach cannot be remedied; or
d) you experience an insolvency event (including but not limited to bankruptcy, receivership, voluntary administration, liquidation, or entering into creditors’ schemes of arrangement).
11.2. You may terminate this Agreement if:
a) we breach this Agreement and do not remedy that breach within 14 days of you notifying us of that breach; or
b) we breach this Agreement and that breach cannot be remedied, and if you have paid Subscription Fees upfront, you will be issued a pro-rata refund of any unused Subscription Fees based on the portion of the then-current Subscription Period remaining.
11.3. We may terminate this Agreement at any time by giving you 30 days’ notice, and if you have paid Subscription Fees upfront, you will be issued a pro-rata refund of any unused Subscription Fees based on the portion of the then-current Subscription Period remaining.
11.4. You may also terminate this Agreement at any time by giving us 30 days’ notice to our email for notices (as set out in clause 12.11), and if you have a Subscription, termination will take effect at the end of your current Subscription Period.
11.5. Upon termination of this Agreement, we may retain your information (including copies) as required by law or regulatory requirements.
11.6. Termination of this Agreement will not affect any other rights or liabilities that we or you may have.
12. General
12.1. Assignment: You may not transfer or assign this Agreement (including any benefits or obligations you have under this Agreement) to any third party without our prior written consent. We may assign or transfer this Agreement to a third party, or transfer any debt owed by you to us to a debt collector or other third party.
12.2. Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
12.3. Disputes: Neither Party may commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) unless the Parties first meet (in good faith) to resolve the Dispute. Nothing in this clause will operate to prevent either Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.
a) If the Dispute is not resolved at that initial meeting, the matter will be referred to mediation or arbitration as specified in the Agreement.
12.4. Entire Agreement: This Agreement contains the entire understanding between the Parties and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments, and agreements, in respect of its subject matter.
12.5. Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under this Agreement if such delay or failure is caused by a Force Majeure Event.
a) Provisions for notification and mitigation in the event of a Force Majeure Event will be as stipulated in the Agreement.
12.6. Further Assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.
12.7. Governing law: This Agreement is governed by the laws of New Zealand, and any matter relating to this Agreement is to be determined exclusively by the courts in New Zealand.
12.8. Illegal Requests: We reserve the right to refuse any request for or in relation to our Services that we deem inappropriate, unethical, unreasonable, illegal or otherwise non-compliant with this Agreement.
12.9. Marketing: You agree that we may send you electronic communications about our products and Services. You may opt-out at any time by using the unsubscribe function in our electronic communications.
12.10. Nature of Legal Relationship: This Agreement does not create, and should not be interpreted so as to create, a partnership, joint venture, employment or agency relationship between us and you.
12.11. Notices: Any notice you send to us must be sent to info@newgoldmountain.nz. Any notice we send to you will be sent to the email address registered against your Account. Notice will be deemed to have been served at the time of transmission in the case of email
12.12. Publicity: You agree that we may advertise or publicise the fact you are a customer of ours, for example on our website or in our promotional material, and you grant us a right to display and use your logo and branding solely for that purpose.
12.13. Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.
12.14. Subcontracting: We may subcontract the provision of any part of our Services without your prior written consent. We agree that any subcontracting does not discharge us from any liability under this Agreement and that we are liable for the acts and omissions of our subcontractors.
12.15. Survival: Clauses 6 to 11 will survive the termination or expiry of this Agreement.
12.16. Third Party Sites: Our website may contain links to websites operated by third parties. We do not control, endorse or approve, and are not responsible for, the content on those websites. We recommend that you make your own investigations in relation to the suitability of those websites.
12.17. Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to this Agreement does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing and will be effective only to the extent specifically stated.
13. Definitions
In this Agreement, unless the context otherwise requires, capitalized terms have the meanings given to them in the Schedule, and:
Account means an account accessible to the individual or entity who signed up to our Services, under which Authorised Users may be granted with access.
Authorised Users are those users of your Account which are authorised to use our Services in accordance with these terms and conditions.
Consequential Loss includes any consequential loss, special or indirect loss, real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise. However, your obligation to pay us any amounts for access to or use of our Services (including your Subscription) will not constitute “Consequential Loss”.
Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or us or you or otherwise.
Personal Information means any information or opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a tangible form or not.
Services means the services you have signed up for.
Subscription means the Subscription plan you have chosen when you signed up, which you use to access certain features and benefits.
Subscription Features means the features and limitations of your chosen Subscription when you signed up.
Subscription Fees means the fees you pay to us to access your chosen Subscription, as set out in the webpage when you signed up.
Subscription Period means the duration of your Subscription, as set out in your Subscription. Unless stated otherwise, your Subscription Period will be for one year, starting from the 1st January till 31st December of the calendar year.
Your Data means the information, materials, logos, documents, qualifications and other intellectual property or data supplied by you and your Authorised Users when receiving our Services or stored by or generated by your use of our Services, including any Personal Information collected, used, disclosed, stored or otherwise handled in connection with our Services. Your Data does not include any data or information that is generated as a result of your usage of our Services that is a back-end or internal output or an output otherwise generally not available to users of our Services.
14. Interpretation
In this Agreement, unless the context otherwise requires:
14.1. a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
14.2. a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
14.3. a reference to a person includes a natural person, body corporate, partnership, joint venture, association, government or statutory body;
14.4. a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns;
14.5. a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
14.6. a reference to time is to local time in Auckland, New Zealand; and
14.7. a reference to $ or dollars refers to the currency of New Zealand from time to time.