Terms & Conditions
- APPLICATION OF THESE GENERAL TERMS
These General Terms set out the general terms on which we provide Services to our customers.
Capitalised and other defined terms used in these General Terms are defined below.
Additional terms apply to:
your use of the Services, as set out in the Service Schedule for the relevant Service; and
if applicable, your resale of the Wholesale Services, as set out in the Wholesale Terms and the Service Schedule for the relevant Wholesale Service.
The Service Schedules for our various Services and the Wholesale Terms are available on the Portal.
We may also agree Special Conditions with you in writing from time to time.
Your Welcome Form, these General Terms, the Wholesale Terms (if applicable) and the applicable Service Schedules together make up the Agreement between you and us.
By signing the Welcome Form, you agree to the General Terms and all other documents that form part of the Agreement.
If there is any conflict between the documents comprising the Agreement, unless otherwise agreed in writing, those documents have the following descending order of precedence:
the Service Schedules;
the Wholesale Terms (if applicable);
these General Terms; and
the Welcome Form.
Despite clause 1.8:
the Service Provider Flow Through Terms and any Special Conditions have precedence over any other documents or sections of documents comprising the Agreement; and
if there is any conflict between the Service Provider Flow Through Terms and any Special Conditions, the Service Provider Flow Through Terms have precedence.
- CHANGES
We may change these General Terms, the Wholesale Terms or any Service Schedule by giving at least 7 days’ notice. We will notify you of the change by email or by posting a notice on the Portal.
If you do not agree with a change made by us under clause 2.1, you may terminate the Agreement or the affected Services on no less than 10 days’ notice, provided you give your notice within 30 days of the date we notify you of the change. If you do not terminate the Agreement or the affected Services in accordance with this clause, you are deemed to have accepted the changed General Terms, Wholesale Terms or Service Schedule.
If a change under clause 2.1 has a material adverse effect on you and you terminate the Agreement or the affected Services in accordance with clause 2.2, you will not be required to pay any applicable Early Termination Charge. In any other case, if you terminate during any Minimum Term, you must pay any applicable Early Termination Charge.
In addition to clause 2.1, we reserve the right to:
change the Services or any Service Provider Flow Through Terms as we consider (acting reasonably) is required as a result of any mandatory change imposed on us by the Service Provider, including terminating any Service where the Service Provider terminates that Service; and
otherwise change these General Terms, the Wholesale Terms or any Service Schedule as we consider (acting reasonably) is required:
as a result of any change in Applicable Law;
for security reasons, to prevent fraud, or for technical reasons; or
to address other changes that impact our provision or your use or resale of the Services that are outside of our reasonable control.
We will notify you of any change under clause 2.4 as soon as practicable by email or by posting a notice on the Portal. You are bound by any change under clause 2.4 from the date of our notice (or such other date as our notice states it takes effect).
- INTERPRETATION
any applicable statute as amended from time to time and any regulations, orders in council, standards or other instruments issued or made under or pursuant to that statute from time to time and legislation passed in substitution for that statute; and
any applicable regulation, condition, direction, decision, notification, guideline, code of practice or order made by the Telecommunications Commissioner, the Commerce Commission, the Privacy Commissioner, the TCF under Schedule 2 of the Telecommunications Act 2001 or any other regulatory body having applicable jurisdiction, and whether or not expressed to be legally binding.
in respect of any Connectivity Service, the early termination charge (if any) charged to us by the applicable Service Provider if any individual Connection for a Connectivity Service is terminated before the expiry of the applicable Minimum Term (if any) for that Connection and associated Connectivity Service; and
in respect of any Service other than a Connectivity Service, the early termination charge (if any) for that service:
set out or referred to in the Pricing Schedule, the Service Schedule or any Special Conditions; or
if there is none, an amount equivalent to the Charges for the terminated Services until the expiry of the Minimum Term, as compensation to us for the revenue which we would otherwise have expected to receive from you in respect of those Services over the Minimum Term.
an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
a lack of funds for any reason.
an interconnection agreement or arrangement (directly or indirectly) to provide for the transfer of data or voice communications generated by, or destined for you or End Users; or
an arrangement to resell services.
allows you to request Services and carry out other administrative tasks in connection with your use of the Services; and
provides you with access to information relating to the Services.
a Network Operator that operates the fibre, copper, cellular or wireless Network upon which delivery of Connectivity Services to you relies; and
any successor operator of any such Network Operator’s fibre, copper, cellular or wireless Network.
the services that you order through the Portal or that you and we otherwise agree we will provide to you, including the Wholesale Services; and
if we have agreed in writing that the vISP Service Schedule applies, the Tier 3 Assurance Services.
a document titled Special Conditions that refers to the Agreement, is signed by both parties and records special conditions that apply to the Agreement; and
any section of any other document that forms part of the Agreement titled Special Conditions.
- SERVICES
If you require any of our Services, you may submit an order to us:
through the Portal; or
by such other means as designated by us from time to time.
We have the right to accept or reject each order on reasonable grounds. If we reject an order, we will provide you with our reasons for doing so.
Unless specified otherwise by us, acceptance will take place on the earlier of us confirming acceptance by email or through the Portal, commencing supply of the relevant Services, or taking any other action to fulfil the order such as placing an order with the Service Provider.
Subject to our acceptance in accordance with clause 4.2, we will begin providing Services to you in accordance with the timeframe that the parties agree in writing or, if no timeframe is agreed, within a reasonable timeframe.
- OUR COMMITMENT TO YOU
We will provide the Services, the Portal and the APIs:
in accordance with the Agreement and New Zealand law;
exercising reasonable care, skill and diligence; and
using suitably skilled, experienced and qualified personnel.
We will use reasonable efforts to provide the Services, the Portal and the APIs in accordance with the Service Levels.
We will provision, or arrange for the provisioning of, the Services to locations where the Services are available as indicated in the Portal or the Portal/API Data.
Owing to operational or other reasons, we may from time to time restrict or suspend all or part of the Services. In those circumstances, we will give you as much notice as reasonably possible and will endeavour to ensure that suspensions or restrictions take place outside of normal business hours. Where we are restricting or suspending a Service in the case of an emergency or in order to protect people or property, or due to events beyond our reasonable control, we may not be able to give you any notice prior to such restriction or suspension, but will endeavour to inform you as soon as reasonably possible.
While we will do our best to provide quality Services, because of the nature of telecommunications and data networks, it is impossible to provide a fault-free service, and the quality and coverage of the Services depends partly on Your Equipment and (if applicable) Customer Equipment, partly on our network and partly on other service providers and networks to which our network is connected or connects, including Network Operators.
The Services can be adversely affected by radio interference, atmospheric conditions, geographic factors, network congestion, maintenance and improvement, outages on other networks and provider sites, the configuration or limitations of your, or your intended recipient’s equipment, other operational or technical difficulties (including data security breach or the introduction of malware to the Underlying Systems) or Force Majeure events, which means that you may not receive some or all of the Services in certain areas or at certain times.
The Services can also change with network expansion or reconfiguration.
We provide the Services to you on a non-exclusive basis. Nothing in the Agreement prevents us from providing the Services to any other person.
- YOUR COMMITMENT TO US
You and your End Users must:
not use or permit the Services to be used in any way which is illegal or abusive, which constitutes harassment, which causes harm or damage of any sort or contravenes a Fair Use Policy or any other specific terms of use or policy in relation to that Service that we notify you of from time to time;
not use or permit the Services to be used in any way that could interfere with or damage the Network;
not attempt to undermine or in any way compromise the security or integrity of the Underlying Systems;
not use, or misuse, the Services in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Services, or any Service Provider’s or Network Operator’s services;
follow our reasonable instructions about the use of the Services;
use the Services only for the purpose for which they are provided as set out in the relevant Service Schedule;
not use the Services in a manner, and not to transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and
have appropriate security policies and controls in place to prevent interference with or damage to the Services, our Network or that of any other Network Operator, the Portal, the APIs, the Underlying Systems, the Data or another customer’s use of our, a Service Provider’s or any Network Operator’s services or the Portal or APIs.
If you or your End Users contravene a Fair Use Policy:
we or the Service Provider may take steps to regulate Network traffic and minimise bandwidth congestion (which may include slowing upload or download speeds of the Service). We will notify you before taking any steps under this clause 6.2.1, and we will notify you as soon as practicable after becoming aware that the Service Provider has taken steps under this clause; and
if repeated breaches occur, we may, by notice to you, require you to migrate to another Service or modify your (or your End Users') use of the Service to meet the Fair Use Policy. You must comply with such requirement within 30 days of receiving our notice. If you fail to comply, we or the Service Provider may terminate or suspend the relevant Service immediately without further notice.
You will ensure that all information you provide to us is accurate and complete. This includes advising us promptly if you change premises or postal address.
You will, if we ask you to, obtain any third party authorisation, licence, consent or approval that we may reasonably require in connection with the Services, including to access the Data as described in the Agreement, but excluding any third party software licences required by us to perform the Services (unless otherwise agreed in writing).
You agree to follow, and ensure that your personnel and other End Users follow, our reasonable instructions about the use of the Services. A breach of the Agreement by your personnel or End Users is deemed to be a breach of the Agreement by you.
Using or agreeing to use the Services does not give you or your End Users any rights in any part of the Services.
You must not resell, in any way whatsoever, the whole or any part of the Services, unless we have agreed otherwise in writing, in which case you must comply with the Wholesale Terms when reselling the applicable Wholesale Services.
You must:
provide all information and assistance that we may reasonably request in order to meet our obligations under the Agreement;
promptly report to us any warrant or other request under Applicable Law related to the Services (which we will action in accordance with the relevant Applicable Law); and
comply with accepted industry practice, any Applicable Law and our reasonable instructions in relation to your use of the Services.
- YOUR EQUIPMENT
You will ensure that all of Your Equipment that is connected to the Network and/or to equipment that we have provided to you has all certifications required by the relevant Service Provider and is installed in accordance with our and the Service Provider’s specifications.
You agree to follow our reasonable instructions about modifications that you may need to make to Your Equipment so that you can use the Services.
Despite anything else in this Agreement, if Your Equipment causes a fault in the operation of a Service then you will, if we ask you to, pay us the reasonable costs of restoring that Service.
We will not be responsible for any harm you suffer from a virus or other malware which infiltrates Your Equipment, whether it was transmitted via the Services or otherwise. As set out in clause 8, you are responsible for all Charges applied to your account resulting from the use of any Services activated by such a virus or malware.
- CHARGES
You must pay us the Charges.
We will provide you with valid GST tax invoices on a monthly basis in advance or arrears depending upon the service, or as otherwise agreed in writing by us.
The Charges exclude GST (unless otherwise stated), which you must pay on taxable supplies.
You must pay the Charges:
by the 7th of the month following the date of invoice, or such other date as agreed in writing by us; and
electronically in cleared funds without any set off or deduction.
A minimum invoice value of $10 plus GST per month applies. If the Charges you have incurred are less than $10 plus GST in any billing period, we may charge you an additional top up amount so that the invoice for that billing period is $10 plus GST.
If any invoiced amount (other than an amount that is disputed in accordance with clause 9) is overdue, we may charge you a late fee of the greater of $7.50 and 1.6% per month or part month on the overdue amount until it is paid in full. You must pay any reasonable expenses (including any reasonable solicitor’s fees and debt collection agency fees) that we incur in collecting any overdue amount or in exercising any of our other legal rights in respect of any overdue amount.
Your part payment of an overdue amount will not amount to a full and final settlement of that overdue amount unless we have otherwise agreed in writing.
Subject to clause 8.9 and the Service Schedules, we may vary or increase the Charges (including by adding new or removing existing types of charges) by giving at least 30 days’ notice. If we increase the Charges and you do not wish to pay the increased Charges, you may terminate the applicable Service on no less than 30 days’ notice, provided the notice is received by us before the effective date of the increase. If you do not terminate the applicable Service in accordance with this clause, you are deemed to have accepted the increased Charges.
If a Minimum Term applies to a Service, no increase under clause 8.8 will take effect before the end of the Minimum Term.
- DISPUTED ACCOUNTS
You must notify us or any dispute on an invoice within 90 days of receiving the invoice. All disputes must be submitted in writing clearly detailing the basis for the dispute. You must pay any undisputed amount by the payment due date set out in clause 8.4.
Any disputed invoice must be dealt with in accordance with the process set out in clause 22.
If we agree with the basis for the dispute, or it is determined in accordance with the process set out in clause 22 that the invoice was incorrect, we will issue you with a corrected invoice as soon as reasonably practicable. If we find that there is no basis for the dispute, you must pay the outstanding amount immediately on being notified of our finding, or on or by the payment due date, whichever is the later.
- CREDIT ARRANGEMENTS
We are not obliged to begin providing Services to you until:
you have provided us with the security (if any) specified in the Welcome Form; and
we have otherwise satisfied ourselves that you will be able to pay the Charges.
If we have already commenced providing Services to you and we then receive an unsatisfactory credit check, we may stop providing any or all Services.
You agree that we may pass on your information to credit reporting organisations so that they can run credit checks on our behalf at any time. We may also let those organisations know if you have not paid our Charges. You agree that at any time those organisations may pass on to us information about you that they hold. We will use that information to make decisions about providing or continuing to provide you with Services. You also agree that those organisations may keep any information about you that we have passed on to them and use it for the purposes of their businesses, which may include supplying it to other entities that use their services. In respect of our access to and use of such information, we will comply with our obligations under clauses 14 and 15 and the Privacy Act.
Where required by our credit policy, we may at any time require you to make an advance payment or provide some other form of security to cover amounts payable by you under the Agreement. If the Agreement is terminated, we will return to you any security not required to cover outstanding amounts.
- INTELLECTUAL PROPERTY
Subject to clause 11.2, title to, and all Intellectual Property Rights in, the Services, the Portal, and all Underlying Systems is and remains our property (and our licensors’ property). You must not contest or dispute that ownership, or the validity of those Intellectual Property Rights.
Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Data to exercise our rights and perform our obligations in accordance with the Agreement.
To the extent not owned by us and owned by you, you grant us a royalty-free, transferable, irrevocable and perpetual licence to use for our own business purposes any know-how, techniques, ideas, methodologies, and similar Intellectual Property used by us to provide the Services to you.
If you provide us with ideas, comments or suggestions relating to the Services, Portal or Underlying Systems (together feedback):
as between you and us, all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
we may use or disclose the feedback for any purpose.
You acknowledge and agree that:
we may:
use Data and information about your and your Customers’ (if applicable) and End Users’ use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data);
use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
supply Analytical Data to third parties;
our rights under clauses 11.5a.ii and iii above will survive termination or expiry of the Agreement; and
title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
We indemnify you against any claim or proceeding brought against you in the Territory to the extent that claim or proceeding alleges that your, Customers’ (if applicable) or End Users’ use of the Services, or your use of the Portal or APIs, in accordance with the Agreement or the Customer Agreement (as applicable) constitutes an infringement of a third party’s Intellectual Property Rights in the Territory (IP Claim). You must:
promptly notify us in writing of any IP Claim;
make no admission of liability and not otherwise prejudice or settle the IP Claim, without our prior written consent; and
giving us complete authority and information required for us to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for our account.
The indemnity in clause 11.6 does not apply to the extent that an IP Claim arises from or in connection with:
your breach of the Agreement;
a Customer’s or End User’s breach of the Customer Agreement (if applicable);
the use of the Services, Portal or APIs in a manner or for a purpose not reasonably contemplated by the Agreement or otherwise not authorised in writing by us;
any Data or third party data; or
the use or incorporation of the Services, Portal or APIs in, or in combination with, another product or item, where, but for such use or incorporation, the Services, Portal or APIs would not have given rise to a claim for infringement of the third party’s rights.
If at any time an IP Claim is made, or in our reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, we may (at our option):
obtain for you, Customers and End Users (as applicable) the right to continue using the items that are the subject of the IP Claim;
modify, re-perform or replace the items that are the subject of the IP Claim so they become non-infringing; or
if we cannot achieve the foregoing remedies on commercially reasonable terms, terminate the Agreement on written notice to you.
- SECURITY
We may provide you a username and password (login) which will enable us to verify your identity and the identity of those who are authorised to have access to your account, including to order Services via the Portal and to make changes to your account. You are entirely responsible for maintaining the security of your login. We are entitled to rely on the provision of your login, without further enquiry, as evidence of authority to access your account, including to order Services via the Portal and to make changes to your account.
Some Services are available via the internet or other systems operated by third parties and, although we will endeavour to maintain the security of information, we cannot guarantee that information you receive or supply when using the Services will be secure at all times. You acknowledge that we are unable to exercise control over, and make no representations or warranties concerning, the security or content of data or information passing over the Network, any systems operated by third parties, or the internet.
- USE OF PORTAL AND APIs
You and your personnel must:
use the Portal, APIs and Portal/API Data in accordance with the Agreement solely for:
the purposes contemplated by the Agreement; and
lawful purposes; and
except as otherwise set out in the Agreement, not resell or make available the Portal, APIs or Portal/API Data to any third party; and
not otherwise commercially exploit the Portal, APIs or Portal/API Data.
When accessing and using the Portal and the APIs, you and your personnel must:
not impersonate another person or misrepresent authorisation to act on behalf of others or us;
correctly identify the sender of all electronic transmissions;
not attempt to view, access or copy any material or data other than:
that which you are authorised to access; and
to the extent necessary for you to use the Portal and the APIs in accordance with the Agreement;
not attempt to undermine the security or integrity of the Underlying Systems;
not use, or misuse, the Portal or the APIs in any way which:
may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Portal, APIs or Underlying Systems; or
is, in our reasonable opinion, excessive or unreasonable. We determine this by reference to the volume of Services under the Agreement and our estimated typical customer’s usage of the Portal or the APIs, adjusted to reflect the volume of Services under the Agreement; and
not use the Portal, APIs or Portal/API Data in a manner that breaches any third party right (including Intellectual Property Rights and privacy rights) or is unlawful in any way.
You and your personnel must not, and not permit any other person to:
copy, translate, modify, or make derivative works of the APIs or Portal/API Data, other than as permitted under the Agreement; or
reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organisation for the whole or any part of the APIs or Portal/API Data.
Without limiting any other right or remedy available to us, we may restrict or suspend your access to and use of the Portal or any API if we reasonably consider that you or any of your personnel have:
undermined, or attempted to undermine, the security or integrity of the Portal, any API or any Underlying Systems; or
used, or attempted to use, the Portal or any API:
for improper purposes;
in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Portal or any API; or
in a manner that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is or may be unlawful.
- CONFIDENTIALITY
If there is a non-disclosure agreement or similar agreement (NDA) between the parties:
the terms of that NDA are incorporated into, and form part of, the Agreement;
Confidential Information under the Agreement is deemed to be Confidential Information for the purposes of the NDA; and
clauses 14.3 to 14.5 do not apply; and
a breach of the NDA is deemed to be a breach of the Agreement.
If there is no NDA between the parties, clauses 14.3 to 14.5 apply.
Each party must, unless it has the prior written consent of the other party:
keep confidential at all times the Confidential Information of the other party;
effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use; and
disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, clauses 14.3.a and 14.3.b.
The obligation of confidentiality in clause 14.3 does not apply to any disclosure or use of Confidential Information:
for the purpose of performing a party’s obligations, or exercising a party’s rights, under the Agreement;
required by law (including under the rules of any stock exchange);
which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
which was rightfully received by a party from a third party without restriction and without breach of any obligation of confidentiality; or
by us if required as part of a bona fide sale of our business (assets or shares, whether in whole or in part) to a third party, provided that we enter into a confidentiality agreement with the third party on terms no less restrictive than this clause 14.
Each party agrees not to issue any press release or public announcement concerning the Agreement without the other party’s prior written approval.
- PRIVACY
If you are an individual, you agree that we can collect, retain and use personal information about you, and can pass it on to our personnel and suppliers, for a range of lawful purposes connected with our business operations, such as checking your creditworthiness, providing the Services and keeping you informed about new products and services.
We will collect, store and use all personal information in accordance with our Privacy Policy and the Privacy Act.
If you are an individual, you may ask to see the personal information that we hold about you at any time and you may ask us to correct any errors.
If you disclose to us any personal information about a director, partner, employee or contact person of yours, you confirm that:
you are authorised by that person to make that disclosure for the purposes described above;
that person has read and agreed to our Privacy Policy;
that person has agreed that we can collect, retain, use and disclose any personal information about him or her as set out in our Privacy Policy; and
that person understands that he or she may ask to see the personal information that we hold about him or her at any time and he or she may ask us to correct any errors.
You acknowledge and agree that, to the extent Data contains personal information, in collecting, holding and processing that information through the Services, we are acting as your (or, where applicable, the Customer’s or End User’s) agent for the purposes of the Privacy Act and any other applicable privacy law. You must obtain (or, where applicable, ensure that the Customer or End User obtains) all necessary consents from the relevant individual to enable us to collect, use, hold and process that information in accordance with the Agreement.
- WARRANTIES
Each party warrants that it has full power and authority to enter into, and perform its obligations under, the Agreement.
To the maximum extent permitted by law:
our warranties are limited to those set out in the Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under Part 3 of the Contract and Commercial Law Act 2017) are expressly excluded and, to the extent that they cannot be excluded, liability for them is limited to the amount set out in clause 18.1; and
other than as set out in the Agreement, we make no representation concerning the quality of the Services, Portal or APIs and do not promise that the Services, Portal or APIs will:
meet your requirements or be suitable for a particular purpose; or
be secure, free of viruses or other harmful code, uninterrupted or error free.
You agree and represent that you are acquiring the Services, Portal and APIs, and accepting the Agreement, for the purpose of trade. The parties agree that:
to the maximum extent permissible by law, the Consumer Guarantees Act 1993 does not apply to the supply of the Services, Portal or APIs or the Agreement; and
it is fair and reasonable that the parties are bound by this clause 16.3.
Where legislation or rule of law implies into the Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Agreement. However, our liability for any breach of that condition or warranty is limited, at our option, to:
supplying the Services again; and/or
paying the costs of having the Services supplied again.
You acknowledge that you have not relied on any representation by us or any of our personnel as to the fitness for purpose, suitability or features of the Services, Portal or APIs, outside of those set out in the Agreement.
- INDEMNITY
You indemnify us against any claim, proceeding, or action brought against us by a third party (including the actual legal fees charged by our solicitors and all sums paid to compromise or settle such claims, proceedings, and actions out of court) to the extent the claim, proceeding or action:
arises from or in connection with:
any use of the Services in a manner not contemplated by the Agreement; or
any actual or potential breach of the security, availability or integrity of any Data, the Network, the Portal, the APIs, the Underlying Systems or the Services generally, caused or materially contributed to by a breach by you of clause 6.1 or by any other act or omission by you; or
alleges that the Data:
is Objectionable, incorrect or misleading; or
infringes the rights of that third party (including Intellectual Property Rights and privacy rights).
You will reimburse us on demand for any reasonable expenses, disbursements and legal costs reasonably incurred by us in the enforcement of any of our rights contained in the Agreement (including any reasonable solicitor’s fees and debt collection agency fees) where we are enforcing those rights as a result of your non-compliance with any of your obligations under the Agreement.
- LIABILITY
Our maximum aggregate liability in relation to each Service, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not in any 12 month period commencing on the Service Start Date or any anniversary of that date (Year) exceed an amount equal to the Charges paid by you for that Service in the previous Year (which in the first Year is deemed to be the total Charges paid by you from the Service Start Date to the date of the first event giving rise to liability).
Neither party is liable to the other under or in connection with the Agreement or the Services for any:
loss of profit, revenue, savings, business, use, data (including Data) and/or goodwill; or
consequential, indirect, incidental or special damage or loss of any kind.
Clauses 18.1 and 18.2 do not apply to limit our liability:
under any indemnity we provide you in the Agreement; or
under or in connection with the Agreement for:
personal injury or death;
fraud or wilful misconduct; or
a breach of clause 14.
Clause 18.2 does not apply to limit your liability:
to pay the Charges;
under any indemnity you provide us in the Agreement; or
for those matters stated in clause 18.3a.i to 18.3b.iii
No Network Operator or third party supplier (including their personnel) will be liable to you for claims, costs, damages, losses or other liabilities of any kind arising in any way from the Services or from your and/or End Users’ use of the Network, including your and/or End Users’ access to and use of any third party’s site or Network Operator’s networks. This clause is intended to be for the benefit of, and enforceable by, each such, Network Operator and third party supplier in terms of the Contracts and Commercial Law Act 2017.
Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.
Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement or the Service.
- SUSPENSION
Without limiting any of our other rights of termination under the Agreement, we may suspend any or all Services at any time if:
any amount payable by you under the Agreement (other than an amount that is disputed in accordance with clause 9) is overdue and you fail to remedy the non-payment within 7 days of us notifying you that the amount is overdue; or
you breach any material provision of the Agreement (other than your payment obligations) and do not remedy the breach within 7 days of notice from us requiring you to do so.
We may require you to pay a reconnection charge as a condition of lifting any suspension imposed under clause 19.1.
- TERM AND TERMINATION
Unless terminated under this clause 20, the Agreement:
starts on the Agreement Start Date and will be in effect for the Agreement Minimum Term (if any); and
at the end of the Agreement Minimum Term (if any), will continue until either party terminates this Agreement on at least 60 days’ written notice to the other party.
Each Service to an individual Connection:
will commence on the relevant Service Start Date and, subject to clause 2.2, continues for the Minimum Term; and
at the end of the Minimum Term, continues, subject to clause 2.2, until terminated:
by either party on at least 60 days’ written notice to the other party; or
the Agreement or the Service is terminated in accordance with this clause 20 or any other provision of the Agreement under which a party has a right to terminate the Agreement or Service.
Either party (first party) may, by notice to the other party, immediately terminate the Agreement and/or a Service if the other party:
breaches any material provision of the Agreement and the breach is not:
remedied within 10 days of the receipt of a notice from the first party requiring the other party to remedy the breach; or
capable of being remedied;
in any 12 month period, commits 3 or more breaches of the Agreement where the first party has notified the other party of such breaches in accordance with clause 20.3.1; or
suffers an Insolvency Event.
- CONSEQUENCES OF TERMINATION
Termination of the Agreement and/or a Service does not affect either party’s rights or obligations that accrued before that termination.
On termination of the Agreement or a Service:
subject to clause 21.5 (if applicable), we will no longer provide the Services (or relevant Service) to you;
you must pay all Charges incurred for Services provided prior to termination; and
before the end of the Minimum Term for a Service, other than by us under clause 20.1b or by you under clause 20.3:
you must pay us the applicable Early Termination Charge; and
you will repay us any credit, equipment subsidy or installation subsidy we have given against your account.
On termination of the Agreement:
we may set off any credit remaining on your account against any Charges, Early Termination Charges, or other amounts payable under this clause 21; and
we may hold any remaining credit on your account until we are satisfied (in our sole discretion) that:
you have fully and properly performed all of your performance obligations and paid all of your payment obligations that may arise under the Agreement; and
there is no material likelihood that any payment made by you under the Agreement is or will become void or voidable.
Without limiting clause 21.1, no compensation is payable by us to you as a result of termination of the Agreement for whatever reason, and you will not be entitled to a refund of any Charges that you have already paid.
Subject to clause 21.6, if the Agreement is terminated by either party under clause 20.2 or is terminated by you under clause 20.3, and at the time of termination you are reselling Wholesale Services in accordance with the Agreement:
we will continue to provide you with, and you may continue to resell to Customers, the Wholesale Services, and, if we have agreed in writing that the vISP Service Schedule applies, we will continue to provide the Tier 3 Assurance Services in relation to the Wholesale Services, for up to 12 months from the termination date specified in the relevant termination notice (Transition Out Period);
you must continue to pay the applicable Charges for the Services supplied by us under clause 21.5a during the Transition Out Period under clause 21.5a;
if a Wholesale Service supplied by us under clause 21.5a is terminated during or at the end of the Transition Out Period, but before the end of any applicable Minimum Term for the applicable individual Connection receiving the relevant Wholesale Service, you must pay us the applicable Early Termination Charge associated with that Connection;
during the Transition Out Period we will, if requested by you, provide all assistance reasonably requested by you to ensure a smooth and orderly transition away from the Services, including:
answering all reasonable questions and provide reasonable information; and
complying with any applicable obligations under the TCF’s Customer Transfer Code for Regulated Services and/or Customer Transfer Code for Fibre Services (as applicable) as updated from time to time;
we must provide the assistance in clause 21.5d:
in the case of termination by you under clause 20.3, at no charge to you; or
in all other cases, on a time and materials basis using our standard rates or at such other rates agreed in writing by the parties;
we may retain any advance payment or other form of payment security that you have provided to us (if any), until such time as such security is not required to cover amounts payable by you under clause 21.5b and 21.5e.ii; and
the terms of the Agreement will continue to apply during any Transition Out Period to:
the Services we supply to you under clause 21.5a and your resale of the Wholesale Services; and
your payment obligations under clause 21.5b and 21.5e.ii
We may terminate our obligations to provide you with the Services, and your rights to resell, the Wholesale Services under clause 21.5a if, at any time during the Transition Out Period, we terminate the Agreement (or, but for the earlier termination of the Agreement, we would have the right to terminate the Agreement) under clause 20.3.
Subject to clause 21.8 and except to the extent that a party (receiving party) has ongoing rights to use Confidential Information, at the other party’s (disclosing party) request following termination of the Agreement, the receiving party must promptly return to the disclosing party or destroy all Confidential Information of the disclosing party that is in the receiving party’s possession or control.
A receiving party may retain Confidential Information where it would be unreasonably impractical to do so, necessary to comply with the receiving party’s internal governance processes or necessary to comply with any Applicable Law. To avoid doubt, the receiving party’s obligations of confidentiality and restriction on use continue to apply to any Confidential Information retained under this clause 21.8.
- DISPUTES
Both parties must use their best efforts to resolve any dispute that may arise under, or in connection with, the Agreement through good faith negotiations.
Despite the existence of a dispute and the operation of this clause 22, each party must, to the extent possible, continue to perform its obligations under the Agreement.
This clause does not affect either party’s right to seek urgent interlocutory and/or injunctive relief from any New Zealand court of competent jurisdiction.
- GENERAL
Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure, provided that the affected party:
immediately notifies the other party and provides full information about the Force Majeure;
uses best efforts to overcome the Force Majeure; and
continues to perform its obligations to the extent practicable.
No person other than you and us has any right to a benefit under, or to enforce, the Agreement.
For us to waive a right under the Agreement, that waiver must be in writing and signed by us.
Subject to clause 15.5, we are your independent contractor, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
If we need to contact you, we may do so by email or by posting a notice on the Portal. You agree that this satisfies all legal requirements in relation to written communications. You may give notice to us under or in connection with the Agreement by emailing contracts@devoli.com.
The Agreement, and any dispute relating to the Agreement or the Services, are governed by and must be interpreted in accordance with the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with the Agreement or the Service.
Clauses which, by their nature, are intended to survive termination of the Agreement, including clauses 11, 12, 14, 15, 17, 18, 21 and 23.6, continue in force.
If any part or provision of the Agreement is or becomes illegal, unenforceable, or invalid, that part or provision is deemed to be modified to the extent required to remedy the illegality, unenforceability or invalidity. If modification is not possible, the part or provision must be treated for all purposes as severed from the Agreement. The remainder of the Agreement will be binding on you.
Subject to clauses 2.1, and 8.8, any variation to the Agreement must be in writing and signed by both parties.
The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Agreement Start Date. The parties have not relied on any representation, warranty or agreement relating to the Services that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Agreement Start Date. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12.1 and 13 of the Fair Trading Act 1986, and that it is fair and reasonable that the parties are bound by this clause 23.10.
You may not assign, novate, subcontract or transfer any right or obligation under the Agreement without our prior written consent, that consent not to be unreasonably withheld. You remain liable for your obligations under the Agreement despite any approved assignment, subcontracting or transfer.
The Welcome Form, and any document forming part of the Agreement that requires signatures from both parties, may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Welcome Form, and any document forming part of the Agreement that requires signatures from both parties, by signing and sending (including by facsimile or email) a counterpart copy to the other party.
In the Agreement:
Agreement means the Welcome Form, these General Terms, the Wholesale Terms (if applicable), the applicable Service Schedules and any Special Conditions that may be agreed from time to time, including, to avoid doubt, the Service Provider Flow Through Terms.
Agreement Start Date means the start date set out on the Welcome Form.
Agreement Minimum Term means the agreement minimum term (if any) set out on the Welcome Form.
Applicable Law means:
API means a secure application programme interface developed from time to time by us to enable the transfer of data for the provision of the Services.
Brand means the name, logo, trade marks or other brand material of any entity.
Business means, if we have agreed that you may resell any Service, the promotion, marketing and reselling of the Wholesale Services to Customers in the Territory, for end use by the Customer, the Customer’s family members and employees, and other persons who are on the Customer’s premises (and not for resale).
Charges means our charges for the Services, which may include fixed charges, usage charges, additional fees and/or one-off fees, as set out in our Price Book from time to time, in any Special Conditions, or as otherwise agreed in writing between the parties, and as may be updated from time to time in accordance with clause 8.8.
Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Services. Our Confidential Information includes Intellectual Property owned by us (or our licensors) and pricing information. Your Confidential Information includes the Data.
Connected means once an Installation is complete and you have (or, if applicable, a Customer has) access to the applicable Service. Connection has a consistent meaning.
Connectivity Service means Services that enable the delivery of connectivity from a fixed location to the Network or to the public internet over fibre, copper or cellular networks.
CPE means the modem, including ancillary hardware, cables, branding collateral, user guide and instruction booklet for Customers to access a Wholesale Service (if applicable).
Customer means, if we have agreed that you may resell any Service, your customer who buys the Wholesale Service from you (and who may also be the End User).
Customer Agreement means, if we have agreed that you may resell any Service, a written agreement between you and the Customer for the supply of Wholesale Services to that customer.
Customer Equipment means the equipment that the Customer or the Customer’s End Users own or possess and use in connection with the Wholesale Services (if applicable), including the CPE.
Data means all data, content, and information (including personal information) owned, held, used or created by you, Customers (if applicable) or End Users or on your, Customers’ (if applicable) or End Users’ behalf that is stored or transmitted using, or inputted into, the Services.
Early Termination Charge means:
End User means a person who is the ultimate recipient of a Service (and who may also be the Customer (where applicable)).
Fair Use Policy means any fair use policy set out or referred to in a Service Schedule, any Special Conditions, or the Portal, as updated by us from time to time.
Force Majeure means an event that is beyond the reasonable control of a party, excluding:
General Terms means these terms titled Devoli General Terms.
Including and similar words do not imply any limit.
Insolvency Event means, in respect of a party, that party becoming insolvent, liquidated or bankrupt, having an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becoming subject to any form of insolvency action or external administration, being removed from the Companies Register or ceasing to continue business for any reason.
Installation means the tasks necessary to provide the Wholesale Services to you (or, if applicable, a Customer), including any Service Provider services that are required to obtain a Connection and to provide you (or, if applicable, a Customer) with Services.
Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Minimum Term means, for each applicable individual Connection for a Service, the minimum term for the supply of a Service to that Connection (if any), as set out in the Portal, the Price Book, the Service Schedule, or any Special Conditions.
Network means the telecommunications and data networks that we use to provide the Services to you and to other customers, including any network with which we or a Service Provider interconnects.
Network Operator means a network operator as defined in the Telecommunications Act 2001 and includes any entity with whom such entity has:
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
a party includes that party’s permitted assigns.
a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
personal information means information about an identifiable, living person.
personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.
Portal means our online platform at vumeda.devoli.com or such other site notified by us that:
Portal/API Data means data obtained by you from the Portal or by use of the APIs.
Price Book means our price book for the Services set out on the Portal.
Privacy Act means the Privacy Act 2020.
Privacy Policy means our privacy policy available on our website, in the Portal or by request.
Service Provider means a service provider that provides us with the Services or services upon which the Services are dependent, including:
Service Provider Flow Through Terms means the terms set out or referred to in any part of a Service Schedule entitled Service Provider Flow Through Terms.
Services means:
Service Schedule means the specific terms that apply to a particular Service, available from the Portal or by request, as amended by us from time to time in accordance with clause 2.
Service Start Date means, in relation to a Service, the service start date notified to you when you order that Service via the Portal, or, if there is none, the date we commence providing that Service to you.
Service Levels means the service levels set out or referred to in a Service Schedule, any Special Conditions, or the Portal, as amended by us from time to time in accordance with clause 2.
Special Conditions means:
TCF means the New Zealand Telecommunications Forum Inc.
Territory means the territory (if any) that we agree with you in writing when approving you to resell any Services, or, if there is none, New Zealand.
Tier 3 Assurance Services has the meaning given in the vISP Service Schedule.
Underlying Systems means our or our suppliers’ IT solutions, systems, and Networks (including any software, hardware, facilities, equipment, documentation, capacity, cables, fibre or other items, materials or devices) used to provide the Services, including any third party solutions, systems, assets and Networks.
vISP Service Schedule means the document titled vISP Service Schedule, available from the Portal or by request, as amended by us from time to time in accordance with clause 2.
We, us or our means Devoli Limited, NZ company number 2111671.
Welcome Form means a document titled Welcome to Devoli that references these General Terms and is signed by both parties.
Wholesale Services means the Services that we agree in writing you are permitted to resell.
You or your means the customer named in the Welcome Form.
Your Equipment means the equipment that you or your End Users own or possess and use in connection with the Services.
Clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement.
Words in the singular include the plural and vice versa.
A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
No term of the Agreement is to be read against a party because the term was first proposed or drafted by that party.