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Terms

Tue, 05/29/2012 - 20:55 -- andrew

SOUTHWEB LTD.

STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF BUSINESS LEVEL GOODS AND/OR SERVICES v1.01

Effective: 01/06/2012

Application and Variation of these Terms
These terms and conditions are the terms on which Southweb provides services or goods to its Customers, modified by any written contract between Southweb and the Customers in any particular case. The terms so modified constitute the agreement in its entirety and supersede prior agreements. The Customer is required to keep their contact details with Southweb current.

Agreement Start Date and Ready For Service (RFS) Date
Agreement Start Date is the date from which the term of the agreement will commence. This date will be the RFS date, unless commencement of the service has been delayed and agreed, in which case the Agreement Start Date will begin at the commencement of service date. Southweb will agree a Ready For Service date with the Customer, which will be the date that the service will be made available to The Customer for The Customer’s use. In the absence of a RFS date the RFS date is deemed to be 10 days after date this contract is signed. Southweb will commence billing of the subscribed service from the RFS date.

Charges
Southweb will invoice you monthly for services provided to you. Fixed charges are payable in advance. Usage based charges which may vary are payable in arrears. Customers are also liable for all charges and expenses incurred by Southweb resulting from any security breach or attack or Customer error that involves Customer hardware, software or network configuration. The Customer must pay Southweb’s charges for all services by the due date as specified in any supply agreement, or if none specified then as set out in Clause 4 of these standard terms and conditions.

Payment of Accounts
Southweb will invoice the Customer monthly for Southweb’s charges for services provided to the Customer in that month.
Payment of charges is due within 14 days following the invoice date. Where The Customer, acting reasonably, disputes a charge in detail in writing before due date the Customer may withhold the disputed portion until the dispute is resolved by the party. Any non-disputed charges may not be withheld.
No credit terms are given. If payment is not received after the due date a finance fee of 2% (minimum $1) per month will be payable on all undisputed overdue amounts.
Accounts with an undisputed balance more than 30 days overdue may be suspended without further warning. Southweb may charge for the reconnection or resumption of a service.
Suspended accounts may be sent to Southweb’s debt collection agency without further notice. Any expenses incurred in the recovery of debt, including but not limited to legal and debt collection costs, shall be claimed on the Customer.

GST
All charges specified on this agreement exclude GST, unless otherwise stated.

Dispute Resolution
If a dispute arises out of or relates to this Agreement including any dispute as to breach or termination of the Agreement or as to any claim in tort, in equity or pursuant to any statute (Dispute) a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the provisions of this Clause 4 except to the extent that the Party seeks urgent interlocutory relief.
A Party to this Agreement claiming that a Dispute has arisen must give written notice before payment is due to the other party to this Agreement specifying the subject matter and details of the Dispute and the relief sought.
After written notice of Dispute being given, the Parties must then for a period of up to 1 calendar month endeavour in good faith to resolve the Dispute expeditiously using agreed informal dispute resolution techniques such as negotiation, mediation, expert evaluation or determination or similar techniques.
If the Dispute is not resolved within 1 calendar month of the written notice of Dispute being given the parties are free to pursue their legal remedies as they choose.
Nothing contained in the dispute resolution procedures in this clause will deny a Party to this Agreement the right to seek injunctive relief from an appropriate Court, where failure to obtain such relief would cause substantial damage to the party concerned.
Notwithstanding the existence of a Dispute, each party shall continue to perform its obligations in accordance with this Agreement to the maximum extent possible (having regard to the nature of the Dispute).

Payment Guarantee
Southweb may require the payment of a payment guarantee before providing the service, or as a condition of continuing any Service, and may use the payment guarantee to meet any costs, loss or liability caused by the Customer. When the Customer has fully performed his or her obligations, Southweb shall return the outstanding balance of the payment guarantee, without interest.

Credit Checks Privacy Consent
The Customer consents to Southweb obtaining credit reports and information containing commercial and personal information concerning credit worthiness for the purpose of assessment by Southweb of an application for Service.

Publication at Customers Risk
The Customer accepts responsibility for all information and material issued by the Customer over any Service, and indemnifies Southweb against any liability in relation thereto. In particular the Customer undertakes that it shall not publish, distribute or issue any information that is illegal, including copyrighted materials. The Customer also acknowledges that Southweb does not vet or approve any information or material available through any service and that Southweb does not accept any liability. To the full extent permitted by law the Customer accesses and uses such information and material at his or her own risk.

Confidentiality
Neither party will, and each party will procure that its officers, employees, agents and contractors will not:
Use any Confidential Information for any purpose or reason or disclose any Confidential Information for any purpose or reason other than as required by law or in accordance with this Agreement; or
Disclose to any person other than a professional adviser, the nature or contents of this Agreement or any matter which is the subject of this Agreement.

Provision of Service
Subject to the Service Level Agreement and Service Terms applicable Southweb endeavours to provide continuous uninterrupted service at all times; however the Service provided to the Customer is not fault free and relies on factors outside of the direct control of Southweb. Only the services explicitly stated in the contract will be provisioned and supported. All other service offerings are specifically excluded.

Exclusion of Liability
Southweb is not liable to the Customer or any other person for:
any cost, loss or liability (including loss of profit or other consequential damage) arising from Southweb’s supply or failure or delay in supplying Service.
the content or, context, or confidentiality of any communications made using the Service. Southweb does not provide support for third party software, including software downloaded from the Internet.
any act of God, nature, terrorism, war or Government, or any civil disturbance or other circumstance beyond Southweb’s reasonable control.

Limitation of Liability
Except as provided below all terms, warranties, undertakings, inducements and representations relating to the provision of any Service or goods are excluded and Southweb will not be liable for any loss or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) in respect of any Service or goods inclusive of any software material hosted or designed by Southweb. To the extent that Southweb cannot exclude liability at law, Southweb’s liability for any breach of such implied term or warranty will be limited at Southweb’s option or in any way permitted by the legislation including where so permitted:
if the breach relates to goods: the replacement or repair of the goods; or the payment of the costs of replacing or repairing the goods.
if the breach relates to services: the supplying of those services again; or the payment of the costs of having those services supplied again.

Fault Escalation Responsibilities
The Customer is responsible for notifying Southweb of a service fault as quickly as possible.
Southweb is responsible for trouble-shooting the source of the service fault, and either rectifying the fault in a timely fashion (i.e. if the fault is within the Southweb network) or escalating the fault to the Telco (i.e. if the fault is within the Telco’s network).

Fault Restoration
Standard Business Hours Fault Resolution: Network staff are available during normal business hours and have service targets for providing an update to a customer fault enquiry within a maximum of 60 minutes of the fault being notified by The Customer to Southweb. Calls logged outside normal business hours will be attended to next business day. Southweb reserves the right to charge support fees inside normal business hours where a fault has been notified and investigated and cannot be traced to either the Southweb or the Telco’s networks. If the fault is found to be on Southweb or the Telco’s network, no support fees will apply.
Southweb’s Emergency Contact Process: Please refer to your Southweb account manager for details regarding this.
Outside Standard Business Hours Fault Resolution: Support outside normal business hours is available only if The Customer has arranged “24 x 7 Customer Support” with Southweb.

Term
The contract term as defined is as per the Term of Contract indicated in the supply agreement.
The fixed term of the supply agreement expires after the Term of Contract has been completed.
Contracts still within the Term of Contract may be terminated in accordance with clause 17. Termination.

Termination
A customer terminating a fixed term agreement becomes liable on notice of such termination for all the outstanding charges associated with completing the full Term of Contract of the agreement. All outstanding charges become immediately payable on giving of such notice of termination.
Any deposit paid on an order or service which is cancelled or terminated by the Customer prior to supply, the commencement of service or within a fixed term contract will be forfeit to Southweb.
After reasonable notice is given Southweb may terminate any agreement or the provision of any Services if:
the Customer breaches any term of any agreement and fails to rectify the breach within 5 working days of notice.
Southweb forms the opinion in good faith that the Customer is or may be insolvent.
the Customer modifies, alters or tampers with the Network or Southweb facilities without express written authorisation.
all outstanding charges become immediately payable on giving of such notice and in no circumstances shall the Customer be entitled to any refund of payment made under this agreement.
Either party may terminate a non-fixed term agreement or a contract where the Term of Contract has been completed with 60 days written notice.

Suspension Of Services
Southweb may suspend, disconnect or discontinue any Service in whole or in part at any time without notice and without compensation if in its reasonable opinion:
it is necessary to safeguard the integrity of the Southweb Network;
there is or has been unauthorised, unlawful or fraudulent use of any Service or the Customer use of any Service or Equipment is causing or may potentially cause damage or interference to any Software, Network or Equipment or the contravention of any statutory requirement;
it is necessary to comply with a direction, order or request of any government authority or other competent authority; or
the Customer does not comply with section 4 d) of these Standard Terms and Conditions.

Information Received
Except as otherwise expressly permitted in writing, no person may reproduce, redistribute, retransmit, publish or otherwise transfer or exploit any information which they receive regarding Southweb’s Service, for any purpose or use which is in competition with Southweb.

Leased Equipment
Leased Equipment will at all times remain the property of Southweb or (as the case may be) the Third-Party Service Provider.
the Customer:
keep the Leased Equipment in a good, clean condition at all times;
keep the Leased Equipment at all times at the Site(s) and within Customer possession and control;
ensure the Leased Equipment is housed, used and operated in a suitable environment and in a skilful and proper manner, and in accordance with relevant user guides and all reasonable instructions issued by Southweb;
notify Southweb of any change in circumstances which might otherwise impede Southweb in tracing Customer location or that of the Leased Equipment;
insure the Leased Equipment on terms satisfactory to Southweb;
upon demand by Southweb in writing, promptly return the Leased Equipment to us; and
comply with the terms of the relevant manufacturers for the use of Leased Equipment.
the Customer must not at any time:
do or suffer to be done anything with regard to the Leased Equipment which might in any way prejudice any rights or interest of Southweb or (as the case may be) the Third Party Service Provider;
alter or remove any label or other markings which are on the Leased Equipment when delivered;
tamper with the Leased Equipment, or any integrated circuit, component or protection facility contained therein; or
permit any person (other than Southweb and any person authorised by us in writing) to carry out any repairs or maintenance to, or any removal or replacement of, the Leased Equipment.
Notwithstanding other terms of the Service Agreement, if the Leased Equipment proves to be defective under normal use due to defective materials, design and/or workmanship, Southweb may at its sole option either repair the Leased Equipment or replace the Leased Equipment with Equipment of the same or comparable type.
Upon the date of termination or expiration of the Service Agreement (howsoever caused), the Customer must promptly (and in any event within 5 Days from such date of termination or expiration) return at Customers own cost the Leased Equipment to Southweb.
Failure to comply with any of the obligations in sub-clause e or there is any loss or damage to the Leased Equipment, the Customer must pay, upon demand by Southweb, an amount equal to the full retail price of the Leased Equipment or any compatible replacement as is solely determined and specified by Southweb and all other amounts (of whatever nature) Southweb may be held liable for by third parties due to such non-compliance, loss or damage.
Nothing shall preclude Southweb from exercising any other remedies available to it under the Service Agreement, in law and/or equity.
When the Service Agreement terminates or expires or the Customer damages the Leased Equipment, the Customer authorise Southweb to enter the Site(s) and take whatever steps are appropriate to disable or modify the Leased Equipment, or to remove it.
Southweb shall have the right, at any time and at its sole discretion, to vary the provisions of this clause 14 which will take effect immediately upon Southweb giving written notice to the Customer of the variations.
The Customer grants Southweb a security interest in the hardware supplied as security for the customers obligations under this agreement. Southweb may register a financing statement on the Personal Property Securities Register to perfect its security interest in the hardware in accordance with the Personal Property Securities Act 1999.

Responsibility for Providing Suitable Environment for CLNE (i.e. Customer premise Southweb managed router)
The Customer is responsible for providing a suitable location for the CLNE to be installed at its site(s). This location needs to provide protection for the CLNE from radio or electrical interference, power fluctuations, abnormal environmental conditions, theft and any other risk or loss or damage from the time the CLNE is delivered to The Customer’s site to any conclusion (i.e. termination) of the service. The CLNE requires proper lighting, air conditioning and fire protection, as well as LAN cabling and an approved AC mains power supply outlet within 1.2m. The Customer needs to provide Southweb with a nominated technical contact person.

Public IP Address Allocation
Should Public IP addresses be required, they will be allocated to you, subject to reasonable commercial justification. Southweb reserves the right to be the sole judge of reasonable justification. Where multiple IP addresses are required and are justified, Southweb reserves the right to charge a monthly fee for use of additional IP addresses at the prevailing price.

Assignment
The Customer may not assign, subcontract or otherwise transfer any rights and responsibilities under this Agreement except:
with the consent of Southweb which will not be unreasonably withheld in the case of a solvent assignee with the technical expertise and financial resources to satisfy the obligations of the assignor under this Agreement (proof of which will be on the assignor): or
to a related company (within the meaning of the Companies Act 1993).
and in either case only with the re-granting or replacement by the Customer to the satisfaction of Southweb of any guarantee which exists in relation to the original agreement.
Southweb may assign, appoint agents, transfer, license or sub-contract the whole or any part of its rights and/or obligations contained in the Agreement.

Governing Law
This Agreement is governed by the laws of New Zealand and the parties submit to the jurisdiction of the New Zealand Courts.