TERMS & CONDITIONS
STANDARD Terms & Conditions as at 08 February 2012
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:
(a) “Xtreme” means Xtreme Networks Limited;
(b) “the Customer” means a customer of Xtreme, a purchaser of any Service from Xtreme, or a receiver of any Services from Xtreme;
(c) “Agreement” includes these Standard Terms and Conditions and has the meaning given to it by clause 61;
(d) “Service Commencement Date” means the date agreed on by the parties that Xtreme will start to provide Services as provided for by the New Client Services Request Form (or as soon as is practicable after that date);
(e) “Services” means any goods or services offered by Xtreme and accepted by the Customer, and further means (but is not limited to):
(i) internet connectivity via CityLink Networks fibre network;
(ii) internet connectivity via TelstraClear cable modem network;
(iii) internet connectivity via Smartlinx3 wireless network;
(iv) internet connectivity via Araneo wireless network;
(v) internet connectivity via Xtreme wireless network;
(vi) internet connectivity via Telecom xDSL and dial up modem;
(vii) email delivery, spam and virus filtering;
(viii) website hosting;
(ix) voice Services (VoIP);
(x) co-location; and
(xi) data cabling.
LENGTH OF AGREEMENT
4. For all Internet connectivity and co-location services, this Agreement shall begin on the Service Commencement Date and continue for a period of 12 months (the “initial term”), unless otherwise agreed in writing by the parties. For all other services there will be no initial term.
5. Following the expiration of the initial term, or from the start of the Agreement where there is no initial term, the Agreement shall automatically renew for successive terms of one calendar month until Xtreme or the Customer provides the other with one calendar month or more advance written notice of termination.
SERVICES TO BE PROVIDED
6. Xtreme agrees to provide the Services in accordance with the terms of the Agreement.
7. Xtreme may from time to time perform certain additional Services on an hourly fee basis (“Supplemental Services”), such as the customisation of a Service at Customer’s request and other professional technical Services. Except for emergency and remediation Services described in clause 8, Supplemental Services will be performed only on Customer’s advance approval and will be invoiced at by Xtreme’s based on an hourly fee agreed on with the Customer at the time.
EMERGENCY AND REMEDIATION SERVICES
8. In the event of a security emergency, problems caused by a Customer’s improper use of Services or other emergency, Xtreme may perform Supplemental Services for the Customer or otherwise take steps to resolve the problem or emergency without the Customer’s prior consent.
9. 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 8. The fees for remediating any one emergency or problem caused by an AUP violation shall not exceed one month’s recurring fee for the Services or NZ$2,500.00, whichever is greater, unless agreed by both parties.
10. Services are charged for monthly with the fee payable being specified on the invoice or statement from Xtreme.
11. All fees must be paid on or before the 20th of the month following the statement or invoice date.
12. Any payment received will be applied to the oldest outstanding fees first.
13. 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.
14. Fees which fall 2 months overdue will result in suspension of Services to the Customer without notification until the overdue fees are paid or an alternative agreement has been reached between Xtreme and the Customer. Notwithstanding suspension of a Service under this clause, the Customer will still be liable for costs incurred by Xtreme to a third party related to the suspended Service.
15. Invoices and statements can be sent via email or standard post for residential accounts and business accounts.
16. It is the Customer’s responsibility to advise Xtreme of a change in email or postal address the invoices and statements are sent to. The Customer can contact Xtreme on 0800 469 873 or by fax at 0800 399 873.
17. Payments can be paid directly to Xtreme’s ASB bank account number 12-3223-0034041-000. When paying by Direct Credit or other electronic means the Customer must include the Customer’s Customer Code in the “particulars” field of the payment form.
18. It is the Customer’s responsibility to cancel any existing accounts and Services with any other ISP’s should it no longer require them.
19. If the Customer wishes to dispute any invoices or statements in the current period, Xtreme can be contacted via email to firstname.lastname@example.org, phone on 0800 469 873 or fax at 0800 399 873.
20. The Customer agrees to pay any costs incurred in recovering any debts or outstanding fees.
21. In the event that the Customer wishes to terminate this Agreement before the initial term is complete, a cancellation fee will be payable by the Customer to Xtreme. This fee will be based on the cost to Xtreme of terminating the Agreement, including any costs owed by Xtreme to any third party relating to the cancelled Service.
22. 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.
Nothing in this clause is intended to create any liability for Xtreme that would otherwise be excluded under clauses 29 – 33.
23. 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.
24. 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 37 – 38.
25. If Customer is an individual, Customer represents and warrants to Xtreme that he or she is at least 18 years of age.
26. To the extent permitted by law, the Customer acknowledges that it is solely responsible for the suitability of the Services chosen.
27. All goods and Services are provided on an “as is” basis, except as expressly stated in any portion of the Agreement.
28. 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
29. Any defect in the Services or in its maintenance shall not entitle the Customer to immediate cancellation of this Agreement.
30. 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.
31. Subject only to Xtreme’s liability for breach of contract (if any) pursuant to clause 30 above, Xtreme will not be liable to the Subscriber 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.
32. Notwithstanding anything herein contained or implied 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.
33. 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.
34. 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; and
(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, unless agreed to in writing, or on the Telecom or other wholesaler network.
As outlined at clause 7, Xtreme may provide Customer support and can resolve faults. However, charges will be applicable and should be discussed at the time support is requested.
35. If Xtreme sells software to the Customer, when the application has been installed and checked and is running to the Customer’s satisfaction, Xtreme will no longer be responsible for the day to day operation of the software unless a support agreement is in place. Should further support be required charges may be applicable.
36. Defects in the software Xtreme provides to the Customer will be resolved by Xtreme for 90 days after it is provided. After that, Xtreme has no responsibility for fixing any defects in the software.
UNLAWFUL OR IMMORAL USE
37. The Customer is prohibited from using Services provided by Xtreme unlawfully or for any unlawful or immoral purposes.
38. Without limitation, the Customer is prohibited from using Services provided by Xtreme to undertaking spamming or the sending of unsolicited mail, or in order to obtain unauthorised access, or making any unauthorised use, of any computer network or system.
39. Xtreme may terminate Services without notice if the Customer if it has reason to believe that the Customer has breached or is intending to breach clauses 37 – 38.
40. 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.
41. 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 42 – 43, except where a party seeks urgent interlocutory relief.
42. A party claiming a dispute will promptly give notice to the other party specifying the nature of the dispute. On receipt of a notice claiming a dispute has arisen, the parties will endeavour in good faith to resolve the dispute.
43. 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, administered by an independent mediation service agreed by both parties and held in accordance with its mediation rules; and
(b) pending resolution of any dispute the parties will continue to perform their obligations under the Agreement without prejudice to their respective rights and remedies.
44. If the dispute is not settled by negotiation or mediation in accordance with clauses 42 – 43, then, 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. 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. Where the dispute does not relating to the standard, quality or nature of Services provide, either party is free, after complying with clauses 42 – 43, to raise the matter before any appropriate New Zealand court or tribunal, or to seek to agree between the parties to resolve the dispute in binding arbitration.
45. Each party shall be liable for any costs (including without limitation debt collection fees, lawyer or court fees) reasonably incurred in the collection of undisputed amounts or disputed amounts found by mediation to be owing by one party to the other.
46. Xtreme may give any notice, or serve any document, in relation to this Agreement to a Customer at the postal address, by fax to any fax number, or by email to any email address recorded on the New Customer Services Request Form.
47. 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, or by fax to +64 4 474 0779, or by email to email@example.com.
48. Either party may update their address and contact details from time to time by notifying the other party in writing.
49. 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 owned by Xtreme that have been used by Customer and delete all Customer information on such servers upon giving Customer a reasonable opportunity (and, in any event, not less than five (5) business days notice) to copy or recover the information from such; and
(b) To promptly release any Internet Protocol numbers, addresses or address blocks assigned to Customer in connection with the Services (but not any URL or top level domain or domain name) and agrees that Xtreme may take steps to change or remove any such IP addresses.
50. Governing Law, Jurisdiction, Venue. The Agreement shall be governed by the laws of New Zealand. Except as provided for in clauses 41 – 45 the courts of New Zealand shall have exclusive jurisdiction for all disputes arising out of or relating to the Agreement.
51. 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.
52. 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 on completely new terms. Any changes will take effect on the 15th of any month after which notice has been given. The Standard Terms and Conditions can be reviewed at www.xtreme.net.nz/terms.php. Xtreme can provide a hard copy of the Standard Terms and Conditions on request.
53. 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.
54. Survival. The following provisions of these Standard Terms and Conditions will survive expiration or termination of the Agreement: fees (clauses 10 – 20), provisions limiting liability (clauses 29 – 33), these miscellaneous provisions (clauses 49 – 62), and other provisions that by their nature are intended to survive termination of the Agreement.
55. 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.
56. No Third Party Beneficiaries. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement.
57. 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.
58. 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.
59. 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 Customer.
60. 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.
61. Entire Agreement. The New Client Services Request Form is hereby incorporated in these Standard Terms and Conditions by reference which together collectively constitute the 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.
62. 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.