TERMS & CONDITIONS
STANDARD Terms & Conditions last amended 1 March 2021
1. These Standard Terms and Conditions form an essential part of any Agreement under which Xtreme Networks Limited (“Xtreme”) agrees to provide Services to any Customer.
2. These Standard Terms and Conditions apply to all Goods and Services provided by Xtreme unless expressly agreed otherwise in writing. Additional Terms specific to the particular Services provided may also apply.
3. In these Standard Terms and Conditions, the following definitions apply:
(a) “Xtreme” means Xtreme Networks Limited;
(b) “Customer” means a customer of Xtreme being the entity named on the invoices and statements;
(c) “Parties” means Xtreme and the Customer;
(d) “Agreement” includes these Standard Terms and Conditions and has the meaning given to it by clause 69;
(e) “Service Commencement Date” means the date agreed on by the parties in any initial correspondence (or as soon as is practicable after that date where third party requirements might cause delays), being the date upon which Xtreme will start to provide and charge for Services;
(f) “Service Termination Date” means that date upon which Xtreme will cease to provide Services in accordance with clauses 4 – 7, 25-26;
(g) “Services” means any Goods or Services, and/or Supplementary Service offered by Xtreme and accepted by the Customer in any correspondence;
(h) “Supplementary Services” has the meaning given to it by clause 9-11;
(i) “Additional Terms” means any modification of these Standard Terms and Conditions as agreed between the parties and recorded in writing; and any other terms agreed between the parties and recorded in writing (for instance where Supplementary Services are provided).
DURATION OF AGREEMENT
4. Certain Services may be subject to a minimum term (as agreed in writing between Xtreme and the Customer). The term of such a fixed term agreement will commence on the Service Commencement Date and will continue for the period as agreed in writing between Xtreme and the Customer (the “Initial Term”). For all other services there will be no Initial Term.
5. Where no Initial Term is applicable, the term of the Agreement shall begin on the Service Commencement Date and continue for the initial part calendar month and then a further period of 1 calendar month, unless otherwise agreed in writing by the parties (thus the “Monthly Term” is 1 calendar month).
6. Unless either party give notice in writing to the other, on the Service Termination Date of the Initial Term or the Monthly Term (as the case may be), the Agreement will automatically renew for a further Monthly Term.
7. Where either party wishes to end the automatic renewal of the Agreement, that party must give at least 1 calendar month notice in writing to the other party. (For example, a final service date of 30 April will require notice be given no later than 31 March).
SERVICES TO BE PROVIDED
8. Xtreme agrees to provide the Services in accordance with the terms of the Agreement.
9. Xtreme may from time to time perform certain additional services on the basis of an hourly fee (for instance the customisation of a Service at Customer’s request and other professional technical services) (“Supplementary Services”).
10. Except for emergency and remediation Services described in clauses 12-13, Supplementary Services will be performed only on Customer’s advance approval, and in accordance with the Additional Terms agreed between the parties.
11. The fee for Supplementary Services will be invoiced by Xtreme based on an hourly fee agreed with the Customer.
EMERGENCY AND REMEDIATION SERVICES
12. In the event that Xtreme, in its complete discretion, determines that there is a security emergency, problems caused by a Customer’s improper use of Services or any other event deemed to be an emergency, Xtreme may perform Supplementary Services for the Customer or otherwise take steps to resolve the problem or emergency without the Customer’s prior consent.
13. Unless otherwise agreed by both parties, the Customer agrees to pay Xtreme a fee based on a reasonable hourly rate for any work undertaken by Xtreme and the cost incurred by Xtreme in relation to any problems or emergencies referred to in clause 12. The fees for remediating any one emergency or problem shall not exceed the fee equivalent to the Customer’s usual monthly fees payable to Xtreme, or the sum of NZ$2,500.00, whichever is greater in each case.
PAYMENTS AND FINANCIAL MANAGEMENT
14. Services are charged in accordance with an agreed monthly fee (set out in any initial correspondence, Additional Terms, or as advertised on www.xtreme.nz), and communicated to the client each month by way of invoice or statement from Xtreme.
15. All fees must be paid on or before the 20th of the month following the invoice or statement date.
16. Invoices, statements and other accounting correspondence will be sent via email to the most current email address as provided by the Customer for this purpose, or in the case of email replies, the Reply To address.
17. It is the Customer’s responsibility to advise Xtreme of a change in email address in accordance with clauses 53 – 55 below. by contacting Xtreme via email on firstname.lastname@example.org or phone on 0800 469 873.
18. Payments can be made directly to Xtreme’s bank account specified in the invoices and statements, or notified to the client in accordance with clauses 53 – 55. When paying by Direct Credit or other electronic means the Customer must include the Customer’s Customer Code (provided on all invoices and statements) in any of the “particulars”, “code” or “reference” fields of the payment details.
19. Any payment received will be applied to the oldest outstanding fees first.
20. Fees which become overdue will incur 2% interest (or a minimum $5.00 charge) per month compounding until paid, based on the total overdue amount.
21. Fees which fall 2 months or more overdue can result in a notice of intent to suspend services until the overdue fees are paid or an alternative agreement has been reached and recorded in writing between Xtreme and the Customer. Notwithstanding suspension of a Service under this clause, the Customer will still be liable for the full fee of the suspended Service that would otherwise be due under this Agreement.
22. It is the Customer’s responsibility to ensure any existing accounts and services with any other ISP’s are satisfactorily cancelled should it no longer require them.
23. If the Customer wishes to query or dispute any invoice or statement Xtreme can be contacted via email on email@example.com, or phone on 0800 469 873. Disputes must be raised within one month of receiving the invoice or statement being disputed.
24. Until such time as a query or dispute has been resolved to the satisfaction of both parties, the Customer will continue to be liable for all amounts owing to Xtreme as if there was no dispute or query, including any penalties for late payment, unless Xtreme in its absolute discretion agrees to suspend fees (or part thereof), and/or to waive any penalties. In the event that a dispute is resolved so that Xtreme is liable to reimburse the Customer, a credit will be issued to the Customer’s account.
25. In the event that Xtreme wishes to terminate this Agreement early, it can do so by way of giving notice to the Customer in writing, at least 1 calendar month prior to the Service Termination Date.
26. In the event that the Customer wishes to terminate this Agreement early, the customer must provide notice in writing, at least 1 calendar month prior to the newly propose Service Termination Date. A cancellation fee may be payable by the Customer to Xtreme and this fee will be at the discretion of Xtreme but will be no greater than 100% of the remaining term.
27. Xtreme represents and warrants to the Customer that it:
a. is the owner or licensee of all copyrights, licenses, trademarks, patents or designs used to provide the Services;
b. has the appropriate personnel and facilities to provide the Services; and
c. will undertake all reasonable care and adhere to generally accepted practices appropriate to the Services provided to ensure the continual supply of the Customer’s Services.
28. Nothing in this clause is intended to create any liability for Xtreme that would otherwise be excluded under clauses 35 – 39.
29. To the maximum extent permitted by law all terms, warranties or representations, whether statutory or otherwise and whether express or implied, oral or written as to the state, merchantability, quality, fitness for purpose or fitness of the Services and its maintenance are hereby excluded, including the implied warranties in the Consumer Guarantees Act 1993 and those of merchantability or fitness for a particular purpose.
30. The Customer represents and warrants to Xtreme that:
a. the information it has provided and will provide to Xtreme for purposes of establishing and maintaining the Services is accurate;
b. it has the power and authority and the legal right to enter into the Agreement and to perform its obligations under the Agreement;
c. it has taken all necessary action on its part to authorise the execution and delivery of the Agreement;
d. the execution and delivery of the Agreement and the performance of its obligations hereunder do not conflict with or violate applicable laws or regulations, and do not conflict with or constitute a default under its charter documents; and
e. it will not use the Services provided by Xtreme in any manner that breaches clauses 35 – 39.
31. If the Customer is an individual, the Customer represents and warrants to Xtreme that he or she is at least 18 years of age.
32. To the extent permitted by law, the Customer acknowledges that it is solely responsible for the suitability of the Services chosen.
33. All goods and Services are provided on an “as is” basis, except as expressly stated in any portion of the Agreement.
34. The Customer acknowledges that no data transmission over the Internet can be guaranteed as totally secure. While Xtreme strives to protect such information, it does not warrant and cannot ensure the security of any information which the Customer transmits to Xtreme. Accordingly, any information which the Customer transmits to Xtreme is transmitted at the Customer’s own risk. Nevertheless, once Xtreme receives the Customer’s transmission, Xtreme will take reasonable steps to preserve the security of such information while the information is within Xtreme’s control.
EXCLUSION OF LIABILITY
35. Any defect in the Services or in its maintenance shall not entitle the Customer to immediate cancellation of this Agreement.
36. Without limiting the other terms of this Agreement, the Customer’s sole remedy against Xtreme shall be limited to breach of contract and Xtreme’s sole and total liability for any such claim shall be limited to, at the option of Xtreme, either the re-supply of the Services or the amount of the current monthly fees to Customer for the month during which the breach allegedly occurred.
37. Subject only to Xtreme’s liability for breach of contract (if any) pursuant to clause 36 above, Xtreme will not be liable to the Customer for any claim for breach of contract, breach of statute, or breach of any duty owed to the Customer as bailee of the Customer’s property, or breach of duty in tort (including negligence) or for any claim in equity or otherwise at law for any losses or damages whether general, exemplary, punitive, direct, indirect or consequential (including without limitation any claim for loss of profits) however caused which may be suffered or incurred by the Customer or any third person or which may arise directly or indirectly out of or in respect of this Agreement, the Services (or their maintenance) or by reason of any act or omission on the part of Xtreme to comply with its obligations under this Agreement.
38. Notwithstanding anything contained in, or implied into the Agreement, no employee, agent or director of Xtreme will be liable to the Customer for any breach of duty or care in contract, tort, equity or otherwise in relation to the performance of obligations under this Agreement or in relation to the subject matter of this Agreement.
39. It is the responsibility of the Customer to ensure it maintains suitable insurance cover for any server or other property of the Customer’s that is placed in Xtreme’s possession for the purpose of providing Services under this Agreement, or for any losses to the Customer or any third party that be consequent on any failure, or disruption, of the Services provided by Xtreme under this Agreement.
40. The Customer acknowledges and accepts that Xtreme has no responsibility for fixing faults which occur:
a. in the Customer’s computer or communications equipment including any software used or stored in them;
b. because the Customer has used Services incorrectly or because of any other event beyond Xtreme’s reasonable control;
c. in the Customer’s building’s phone or data cabling, or any other wholesaler network; and
41. As outlined at clause 9, Xtreme may provide Customer support and can assist to resolve faults. However, charges will be applicable and should be discussed at the time support is requested.
42. If Xtreme is prevented or obstructed in any way from providing Service due to the Customer’s software [or hardware] limitations, Xtreme will be entitled to its usual fee under this Agreement, regardless.
UNLAWFUL OR IMMORAL USE
43. The Customer is prohibited from using Services provided by Xtreme unlawfully or for any unlawful or immoral purposes.
44. Without limitation, the Customer is prohibited from using Services provided by Xtreme to undertaking spamming or the sending of unsolicited mail, unlawfully access any Copyrighted material, or in order to obtain unauthorised access, or making any unauthorised use, of any computer network or system.
45. Xtreme may terminate Services without notice to the Customer if it has reason to believe that the Customer has breached or is intending to breach clauses 43 – 44.
46. The Customer agrees and acknowledges that Xtreme may, without notice to the Customer, provide any information it has about the Customer or any of its customers or end users if required to do so:
a. by a Court, regulatory agency or law enforcement agency; or
b. to a third party under any statute or delegated legislation.
47. If any dispute arises out of or in connection with the Agreement, neither party shall commence any court or arbitration proceedings relating to the dispute unless that party has complied with the provisions of clauses 48 – 51, except where a party seeks urgent interlocutory relief.
48. A party claiming that there is a dispute will promptly give notice to the other party specifying the nature of the dispute and the proposed resolution. On receipt of a notice claiming a dispute has arisen, the parties will endeavour in good faith to resolve the dispute directly between them.
49. If the parties do not resolve the dispute within twenty (20) business days of receipt of the notice claiming a dispute has arisen (or such further period as agreed in writing by them), then a mediator based in the Wellington region will be appointed using the following process:
a. The dispute shall be submitted to mediation by an independent mediation service agreed by both parties and held in accordance with its mediation rules.
b. In the event that the parties cannot agree on an independent mediation service, the disputes shall be submitted to Fairway Resolutions (or any of its subsidiaries, or replacements).
c. The cost of such mediation will be shared equally between the parties, unless otherwise agreed in writing.
d. Pending resolution of any dispute the parties will continue to perform their obligations under the Agreement without prejudice to their respective rights and remedies (as further detailed in clause 24).
50. If the dispute is not settled by direct negotiation or mediation in accordance with clauses 48 – 49:
a. Where the dispute relates to the standard, quality or nature of Services provided, the parties must enter into binding arbitration in accordance with the Arbitration Act 1996.
b. If the parties cannot agree on a mutually acceptable arbitrator then the parties will accept an arbitrator based in the Wellington region selected by the President of the Arbitrators and Mediators Institute of New Zealand.
c. The cost of such arbitration will be shared equally between the parties, unless otherwise agreed in writing.
d. Pending resolution of any dispute the parties will continue to perform their obligations under the Agreement without prejudice to their respective rights and remedies (as further detailed in clause 24).
51. Where the dispute does not relate to the standard, quality or nature of Services provide, either party is free, after complying with clauses 48 – 50, to raise the matter before any appropriate New Zealand court or tribunal based in the Wellington region, or to seek to agreement between the parties to resolve the dispute in binding arbitration in accordance with clause 50 (with the necessary modifications as required).
52. Each party shall be liable for any and all costs (including without limitation debt collection fees, lawyer or court fees) reasonably incurred in the collection of undisputed amounts or disputed amounts found to be owing by one party to the other.
53. Xtreme may give any notice, or serve any document on the Customer, by relying on the Customer’s contact details held on record, including: any email address; or postal address previously provided or used by the Customer.
54. The Customer must give any notice, or serve any document, in relation to this Agreement to Xtreme by post to PO Box 12466, Thorndon, Wellington; by email to firstname.lastname@example.org; or as otherwise communicated to the Customer in writing.
55. Either party may update their address and contact details from time to time by notifying the other party in writing (and in accordance with clauses 53 – 54). In any event, regardless of the contact details used to provide notice, or serve a party to this Agreement, where a receiving party acknowledges receipt of any notice, or documents served, the sending party may rely on that acknowledgement.
56. Ownership. Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trade secrets, inventions, copyrights and other intellectual property, and that Xtreme shall own any intellectual property that it may develop in the course of performing the Services. The Customer does not acquire any ownership interest or rights to possess Xtreme server(s) or other hardware, and has no right of physical access to the hardware. Upon expiry or termination of the Agreement the Customer agrees:
a. That Xtreme may put to use for another purpose the servers or other hardware owned by Xtreme that have been used by Customer and delete all Customer information on such hardware upon giving Customer a reasonable opportunity (and, in any event, not less than five (5) business days’ notice) to copy or recover their information from such; and
b. To promptly release any Internet Protocol numbers, addresses or address blocks assigned to Customer in connection with the Services and agrees that Xtreme may take steps to change or remove any such IP addresses.
57. Governing Law, Jurisdiction, Venue. The Agreement shall be governed by the laws of New Zealand. Except as provided for in clauses 48 – 53 the courts of New Zealand shall have exclusive jurisdiction for all disputes arising out of or relating to the Agreement.
58. Services for business purpose. The Consumer Guarantees Act 1993 shall not apply where the Customer acquires (or holds itself out as acquiring) Services from Xtreme for the purpose of a business, as defined in that Act.
59. Modifications. Xtreme may, from time to time, amend these Standard Terms and Conditions but will give notice of any changes to the Customer via the monthly statement or invoice. Changes may take the form of completely new terms. Any changes will take effect on the first day of the month after notice has been given. The Standard Terms and Conditions can be reviewed at https://www.xtreme.nz/terms-and-conditions. Xtreme can provide a hard copy of the Standard Terms and Conditions on request.
60. Non-Waiver. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
61. Survival. The following provisions of these Standard Terms and Conditions will survive expiration or termination of the Agreement: payment (clauses 14 – 24), provisions limiting liability (clauses 35 – 39), these miscellaneous provisions (clauses 57 – 70), and other provisions that by their nature are intended to survive termination of the Agreement.
62. Force Majeure. Neither party shall be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond that party’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, legislative interference, natural disaster, war, riot, insurrection, epidemic, strikes or other organised labour action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry. Where this failure to perform an obligation continues for a period of thirty (30) consecutive days the other party has the right to terminate this Agreement without penalty.
63. No Third Party Beneficiaries. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of the Customer are third party beneficiaries to the Agreement.
64. Severability. If any term of these Standard Terms and Conditions is determined to be invalid or unenforceable, all other terms shall remain in full force and effect and said term shall be reformed only to the extent necessary to make it enforceable.
65. Relationship Between the Parties. The parties are independent contractors and are not partners or engaged in a joint venture. Neither party is the agent of the other and neither party may represent to any other that it has the power to bind the other on any agreement. The Agreement is non-exclusive. Xtreme may provide service to any other, including a competitor of the Customer.
66. Assignment. The Customer shall not assign, subcontract, pledge or transfer the whole or any part of its rights, duties or obligations under this Agreement, without the previous written consent of Xtreme. Xtreme may not do the same without first notifying the Customer.
67. Privacy. The information in the Agreement about the Customer and any other personal or business information that the Customer may provide at any time may be used by Xtreme for the purposes of checking the Customer’s credit worthiness and for introducing other products and Services to the Customer. In addition, the Privacy Act 1993 gives the Customer the right at any time to request or correction of the information held by Xtreme.
68. Entire Agreement. Any pertinent information (not limited to the Customer name and any contact details) provided during initial correspondence, and any Additional Terms is hereby incorporated in these Standard Terms and Conditions together constitutes the entire Agreement. The Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior understanding or communication, written or oral.
69. Acknowledgement. By continuing to maintain Services with Xtreme, the Customer is stating and acknowledging that the Customer has read and understood the Agreement and agrees to be bound by it.