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Minimum Term = as defined on the associate Order Form
1. The Supplier’s General Obligations
1.1 The provision of the Service is subject to all relevant licences, infrastructure (or interconnect arrangements) and consents being in place. The Supplier shall use reasonable endeavours to meet any agreed dates but shall not be liable for any failure to meet them. The Customer shall obtain any consent (including landlord’s consent) or facility that is reasonably requested by the Supplier in order to provide the Service on the Site. |
| 1.2 The Supplier shall exercise the reasonable care and skill of a competent communications operator but the Service cannot be guaranteed to be fault free. |
| 1.3 The Customer shall report any fault to the Supplier’s customer services department, where it will be dealt with in accordance with any agreed fault repair service. The Supplier may request that the Customer first have its designated maintainer check and/or re-program the Customer’s equipment. If the Supplier agrees to fix a fault that is caused by the Customer or that otherwise falls outside the responsibility of the Supplier or where no fault is found, the Supplier may charge the Customer for any work that the Supplier has undertaken at its applicable man-hour rate. |
| 1.4 Where the Supplier allocates telephone numbers to the Customer, the Customer shall not (without prejudice to any statutory number portability rights) acquire any rights whatsoever in such telephone numbers. The Customer shall not apply for registration of the telephone numbers as part of a trade mark. The Supplier may change any telephone number allocated to the Customer after giving reasonable notice where such change is necessary or desirable to comply with the law, any Commerce Commission decision or for operational reasons. |
1.5 The Supplier does not accept any liability for claims relating to the Customer’s ability to use or to continue use of a particular telephone number.
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| 2. The Customer’s Obligations |
2.1 The Customer agrees that it will not, and will use reasonable endeavours to ensure that its directors, officers, employees, agents, contractors, advisers and representatives and End Users will not, cause or allow the Service to be used in a manner which:
2.1.1 is in breach of any law;
2.1.2 is other than in accordance with the Suppliers reasonable instructions, restrictions or directions about the use of the Service;
2.1.3 could or is intended to interfere with or damage the Suppliers Network, any other operator’s Network, or another customer’s enjoyment of any service provided by the Supplier;
2.1.4 may result in a “virus”, “worm”, “Trojan” or similar program being sent through the Service;
(a) infringes any person’s Intellectual Property or other rights;
(b) is malicious, obscene or offensive; or
(c) is other than the purpose for which the Service is provided. |
2.2 The Customer shall ensure that any equipment (excluding Supplier’s Equipment) that it uses in connection with the Service meets any legal or regulatory requirements and is approved for connection to the System. If not, the Customer must immediately disconnect it or allow the Supplier to do so at the Customer’s expense.
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| 3. Payments |
| 3.1 The Customer shall pay for the Call Charges after the end of the month in which the relevant calls were made. |
| 3.2 The Customer shall pay all Charges whether the Customer or someone else uses the Service. The Call Charges will (in the absence of fraud or manifest error) be calculated using the details recorded or logged by the Supplier and not the details recorded by the Customer. |
| 3.3 The Customer shall pay any Charges for cancellation, abortive visits, engineering visits or site surveys, or maintenance service imposed on the Supplier by Wholesaler relating to the Service, save where such abortive visit or service maintenance charges arise through the Supplier's default. |
| 3.4 The Charges are exclusive of GST, which shall be payable by the Customer in addition to the Charges at the rate applicable from time to time. |
| 3.5 The Customer shall (without set-off or deduction) pay in New Zealand Dollars all invoices issued by the Supplier within forteen (14) days (or such other period as is specified in the Order) of the date upon them. If the Customer’s credit rating decreases at any time, the Supplier shall be entitled to revise the credit terms to require payment in less than forteen (14) days. If the Customer remains unpaid after the Payment Date we may charge you a late fee of the greater of $10.00 or 1.6% per month or part month on that amount until it is paid in full and you will also have to pay any reasonable expenses (including solicitor and own client costs) we incur in collecting any money that you owe to us or in exercising any of our other legal rights. Time is of the essence in relation to payments due from the Customer and the Supplier reserves the right to treat any failure to pay on time as a repudiatory or material breach by the Customer. |
| 3.6 Where the Charges are fixed for the Minimum Period, the Supplier may at any time with effect on or after the expiry of the Minimum Period, change the level of its Charges after giving the Customer four (4) weeks written notice of its intention to do so. This notice may be included in an invoice to the Customer. |
3.7 The Supplier may also change the level of its Charges during or after the Minimum Period, retrospectively as well as prospectively, as a consequence of:
(a) any Commerce Commision direction, determination, order or similar decision; or
(b) any change in Telecom's wholesale or interconnect charges to the Supplier.
In both cases, the Supplier shall only be entitled to change the level of its Charges where the foregoing impacts upon the basis upon which the Charges were calculated. This notice may be included in an invoice to the Customer. |
| 3.8 If no Rental is payable and the Customer does not (other than for reasons of the default of the Supplier or clause 9) incur Call Charges in any month during the Minimum Period, the Customer shall in respect of each such month pay a minimum Charge equal to the arithmetic average of the Customer’s last three monthly invoices prior to the month when no Call Charges were incurred. |
3.9 The Customer must advise the Supplier when the change address.
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| 4. Suspension and Variation of the Service |
| 4.1 The Supplier may, suspend or vary the Service (without compensation unless directly due to the default of the Supplier) for any period during which: |
| 4.1.1 The Supplier is obliged or requested to comply with an order or instruction of, or a recommendation or request to take such action received from the Government, Commerce Commission an emergency services organisation or a competent administrative authority; |
| 4.1.2 The Supplier reasonably suspects or believes that the Customer is in breach of Clauses 2.1 or 3.5; |
| 4.1.3 The Customer’s credit rating decreases at any time, and the Customer fails to supply security reasonably acceptable to the Supplier in response to a request from the Supplier; or |
4.1.4 The Supplier's contract with it Wholesale Provider relating to the Services is suspended, varied or terminated.
The Supplier shall try to notify the Customer as soon as reasonably practicable of such suspension or variation. |
| 4.2 The Customer acknowledges that the Wholesale Provider may make take action or fail to take action which may result in disruption in the Service. |
| 4.3 The Customer shall reimburse the Supplier for all reasonable costs and expenses incurred as a result of the suspension and any recommencement or variation of the Service where suspension or variation is implemented as a result of any act or omission of the Customer. |
| 4.4 The Supplier may at any time suspend the Service or any part of it: |
| 4.4.1 To vary the technical specification of the Service in order to comply with any relevant law or regulation or direction from a competent authority; or |
| 4.4.2 To repair, maintain or improve the Service.
The Supplier will, during such suspension under this Clause 4.4, try to ensure that minimum disruption is caused to the Service. |
4.5 The Supplier reserves the right to vary the Terms and Conditions of this Agreement by placing the revised Terms and Conditions on the Supplier Website. Any variations to these Terms and Conditions will be placed on the Supplier Website (or otherwise notified to the Customer) not less than one month before such variation is to take effect, except no such notice is required to be given in the case of a variation which the Supplier considers is required as a result of a variation in:
(a) the law or a decision of the Commercie Commission or other relevant authority; or
(b) any service of any other operator on which the Supplier relies to provide the Service (each being a "Third Party Variation"). A Third Party Variation shall take effect from the date of the relevant variation described by (a) or (b) above. In the case of a Third Party Variation the Supplier shall place the revised Terms and Conditions on the Supplier Website as soon as reasonably practical. |
4.6 If the variation (other than a Third Party Variation) materially prejudices the Customer, the Customer may, before the variation takes effect, give written notice to the Supplier objecting to the variation (a "Variation Notice"). Where such Variation Notice is given, the parties, acting reasonably and in good faith, will discuss and agree whether the variation shall apply to the Customer. If the Supplier does not receive a Variation Notice the Customer shall be deemed to have accepted the variation. The Customer should periodically check the Supplier Website to make itself aware of any variations.
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4.7 If your account is unpaid in part or in whole for a period of ten days from the due date, we reserve the right to suspend or terminate your access to the products and/or services at any time at our discretion. If you account remains unpaid for a period exceeding one calendar month from the due date we reserve the right refer your information to a debt collection agency or credit reference agency without notice to you.
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| 5. Termination |
| 5.1 Either party may immediately terminate this Agreement by written notice if the other party commits an act of bankruptcy or goes into or is put into liquidation (other than solely for the purposes of a reconstruction or amalgamation) or if a receiver, administrative receiver or administrator is appointed over all or part of the other party’s assets or the other party suffers seizure of any of its property for non payment of monies owing. |
| 5.2 If this Agreement is signed before the Supplier has completed its credit check of the Customer, the Supplier shall be permitted to suspend and/or terminate this Agreement immediately if the Customer fails to pass the Supplier’s credit policy. |
| 5.3 This Agreement commences on the date the Supplier first makes service available to the customer and will remain in effect for the minimum Term and thereafter for periods of one year unless and until terminated in accordance with Clause 7. If the Customer terminates this Agreement after the Minimum Term and fails to give such written notice, the Customer shall (without prejudice to the Supplier’s other rights) pay the early termination fee. |
| 5.4 If the Customer terminates the Agreement (other than validly under Clause 7) during the Minimum Period, the Customer shall (without prejudice either party’s other rights including in respect of Charges payable for the period up to the date of termination) pay the Early Termination Fee. |
| 5.5 Early Termination Fee: means the amount determined in its discretion by the Supplier and notified to the Customer following early termination, not exceeding (a) the Rental for the balance of the Minimum Period that remains outstanding or (b) a sum equal to the arithmetic average of the Customer’s monthly invoices prior to termination and based upon the last three full calendar month’s invoices, multiplied by the number of complete calendar months left in the Minimum Term after the date of termination (but including the month in which the date of termination falls) together with (both for (a) and (b)) an administration fee of $50.00 + GST. |
5.6 Either Party may terminate this agreement on not less than sixty (60) days notice in writing to expire at the end of the minimum term or on each anniversary thereafter, unless the minimum term is "0" where simple written notice is required.
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| 6. Limitations and Exclusions of Liability |
| 6.1 The Supplier's duty in performing any obligations under this Agreement is only to exercise the reasonable care and skill of a reasonably competent communications provider. This Clause 6 sets out each party’s entire liability (including any liability for acts or omissions of its employees, agents or subcontractors) to the other party in tort (including negligence), contract or otherwise arising in connection with the performance, non-performance or contemplated performance of this Agreement, other than the payment of the Charges. Except as set out in this Agreement, the Supplier provides no warranties, conditions or guarantees as to the description or quality of the Service, and all warranties, conditions or guarantees implied by or expressly incorporated as a result of custom and practice, statute, common law or otherwise are hereby expressly excluded so far as permitted by law. |
| 6.2 If the Supplier is held to be liable to the Customer for any reason, then the liability of the Service Provider to the Customer is limited to an amount equal to the Supplier’ average Charges to the Customer for one month in respect of any single event or related series of events and to a maximum amount equal to the Suppliers average Charges to the Customer for a three month period in any one year. |
| 6.3 The Supplier is providing Services for the purposes of a business and any rights the Customer might otherwise have had under the Consumer Guarantees Act are excluded. |
| 6.3.1 If, in respect of loss or damage to physical property of the Customer, the Supplier actually receives (after taking into account of any deductible or excess) insurance monies from its insurers in excess of the limit referred to in clause 6.2.1 in respect of such loss or damage, the Supplier’s liability to the Customer for such loss or damage shall not exceed such receipts. |
| 6.3 Neither party excludes or restricts its liability for death or personal injury resulting from its own negligence or for fraudulent misrepresentation. |
| 6.4 Each of the Supplier and the Customer acknowledges that it considers the provisions of this Clause 6 to be reasonable, taking account of the other terms of this Agreement (including the Charges, which have been based upon the allocation of risk in this Agreement) and its ability to insure against losses which may arise from any breach by the other party of its obligations under this Agreement. |
8.5 The provisions of this Clause 6 shall survive termination or expiry of the Agreement.
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| 7 Circumstances Beyond Reasonable Control |
| 7.1 Neither party shall be liable for any delay in performing its obligations under this Agreement caused by circumstances beyond its reasonable control (an "event of Force Majeure"). An event of Force Majeure includes events such as, but is not limited to, Acts of God, insurrection or civil disorder or military operations, national or local emergency, acts or omissions of government or other competent authority or regulatory authority, fire, flood, lightning or other weather of exceptional severity, radio interference, line-of-sight interference, subsidence, explosion or industrial disputes. This Clause does not apply to the Customer’s obligation to pay the Charges. |
7.2 If either party is affected by an event of Force Majeure, it shall notify the other party and shall use its reasonable endeavours to continue to perform its obligations under this Agreement. If an event of Force Majeure continues for more than three (3) months, the parties shall, enter into a discussion to agree, in good faith, the best way forward.
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| 8 Charges & Payment |
| 8.1 , The Supplier may vary its Charges from time to time. If the Supplier increases any Charge it will give the Customer as much notice as reasonably possible. |
| 8.2 The Supplier will send to the Customer one or more monthly invoices showing all Charges payable by the Customer to the Supplier for each Service. |
8.3 The Customer must pay the Supplier the Charges for each Service by the Due Date as specified on the invoice for the Services without set-off, counterclaim or deduction.
8.4 Unless otherwise stated, the Charges shown on any invoice sent to the Customer are payable in New Zealand Dollars and will exclude GST.
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| 9 General |
| 9.1 A delay in enforcing rights under this Agreement shall not be a waiver unless expressly granted in writing. |
| 9.2 The unenforceability or invalidity of any part of this Agreement shall not affect the enforceability or validity of the remainder of it. |
| 9.3 The termination or expiry of this Agreement shall be without prejudice to the rights of either party, which have accrued prior to termination or expiry. Clauses that are expressed to survive or which are by implication intended to survive termination or expiry of this Agreement shall so survive. |
| 9.4 Where an Order is signed (or, in the case of Orders taken over the telephone, a contemporaneous recording of the telephone Order is made by the Supplier) this Agreement contains the entire agreement and supersedes all other agreements and understandings between the parties with respect to its subject matter. Any terms proposed by the Customer that are not expressly accepted in the Order shall be invalid. Nothing in this clause shall operate to limit or exclude any liability for fraud. |
| 9.5 This Agreement is not intended to be for the benefit of and shall not be exercisable by, any third party or otherwise and neither party can declare itself trustee of the rights under it for the benefit of any third party. |
| 9.6 The Supplier may transfer or assign its rights and obligations to any of its Associated Companies and may sub-contract any of its obligations. Otherwise, neither party may transfer, assign, sub-licence or subcontract any rights or obligations under this Agreement without the prior written consent of the other party, which will not be unreasonably withheld or delayed. |
| 9.7 New Zealand law shall govern the validity, construction and performance of this Agreement and the parties submit to the exclusive jurisdiction of the New Zealand Courts. |
