1 DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Agreement the following terms have the following meanings:
“Agreement” means this agreement including the schedules and Service Schedules. “Authorised Person” or “Authorised Representative” means the name of the authorised signatories on the Agreement of his/her authorised delegate. “Commencement Date” means the date specified as such on the front page of this Agreement. “Equipment” means any equipment (including software) provided by FusionDigital to enable the Customer to use any Service. “Initial Term” means the period specified as such on the front page of this Agreement. “Payment Date” means the day of the month appearing on each FusionDigital invoice as the payment date, or one month from the date of invoice. “Service” or “Services” means all or any part of a service referred to in a Service Schedule and “Services” shall have a corresponding meaning. “Service Schedule” means a schedule attached to this Agreement describing a Service to be provided by FusionDigital to the Customer and setting out the charges for and specific terms applicable to the provision of that Service. “Working Day” means a day (other than Saturday or Sunday) on which registered banks are normally open for business in Auckland, Wellington and Christchurch. 1.2 Interpretations: In this Agreement unless the context specifies otherwise:
(a) Headings to clauses are for reference only and do not affect interpretation.
(b) References to clauses or schedules are to clauses of or schedules to this Agreement, and any schedules referred to form part of this Agreement.
(c) References to a party are to a party to this Agreement and include that party’s successors in title and permitted assigns. (d) A reference to any date which is not a Working Day will be deemed to be a reference to the next Working Day.
(e) Words importing the plural include the singular and vice versa and words importing gender import all genders.
(f) Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(g) Any obligation not to do something will be deemed to include an obligation not to suffer, permit or cause that thing to be done.
(h) A reference to dollars or a “$” sign is to New Zealand currency and excludes GST unless otherwise stated. 2 TERMS
2.1 This Agreement shall commence on the date of this Agreement and shall continue until terminated in accordance
with clauses 14 or 16 of this schedule.
3 COMMENCEMENT OF SERVICES
3.1 FusionDigital will commence providing each Service to the Customer in accordance with the timeframe agreed by the parties or, if no timeframe is agreed, within a reasonable time.
4 RESPONSIBILITIES OF FusionDigital
4.1 FusionDigital will provide each Service in accordance with the terms set out in the main body of this Agreement (including the schedules) and the applicable Service Schedule.
4.2 FusionDigital will provide the Services with reasonable care and skill. It will use all reasonable efforts to ensure that the Services are reliable at all times but it does not guarantee that the Services will be continuous or fault free.
4.3 Where FusionDigital performs work for the Customer in connection with the provision of the Services, it will ensure that competent and suitably experienced personnel carry out all work, in a professional manner and in accordance with appropriate standards and regulations.
4.4 FusionDigital will not be responsible for unauthorised access to Customer facilities or equipment or for alteration, loss or destruction of data files, programs, procedures or information of the Customers by accident, fraudulent method or equipment or any other method inappropriately used by Customer or third parties.
4.5 From time to time, FusionDigital may (and has the right to) send information and offers to the Customer about upgrades and other services offered by FusionDigital. Under no circumstance shall FusionDigital have any obligation to provide the Customer with any upgrades, enhancements, modifications or support for the services other than as set out in this Agreement.
5.1 FusionDigital’s charges for the Services are those set out in the Service Schedules subject to amendment in accordance with the provisions of those Schedules. Unless otherwise stated the charges shown exclude Goods and Services Tax. The Customer must pay any Goods and Services Tax payable on FusionDigital’s charges.
5.2 FusionDigital will issue the Customer a monthly invoice for all Services provided to the Customer and which FusionDigital’s records shows are chargeable to the Customer’s account.
5.3 Fixed charges will be invoiced in advance. Usage based charges will be invoiced in arrears.
5.4 Some Usage based charges may be estimated by FusionDigital and invoiced in advance. Where this is the case, the Customer’s next invoice issued will show a credit or additional charge on the Customer’s account based on the Customer’s actual usage.
5.5 The Customer must pay all charges by the Payment Date.
5.6 Prices in our catalogue are expected to have errors and
exceptions. We endevour to keep our data as accurate as possible,
however we reserve the right to refuse any sale for any reason.
6 LATE PAYMENT AND SUSPENSION OF SERVICE
6.1 FusionDigital may charge the Customer interest at a rate of 2.0% per month on accounts that remain unpaid after the Payment Date. Interest will not be payable on amounts in dispute under clause 7.1, provided the dispute is resolved in favour of the Customer. Interest will accrue from the Payment Date until the date of actual payment.
6.2 If the Customer fails to make payment to FusionDigital for any Service by the Payment Date, FusionDigital may suspend the provision of that and/or any other Service. FusionDigital will give the Customer 5 Working Days written notice of its intention to suspend any Service.
6.3 FusionDigital may require the Customer to pay a deposit as a condition of lifting any suspension imposed under clause 6.2.
7 DISPUTED ACCOUNTS
7.1 If the Customer wishes to dispute any item appearing on an invoice, the Customer must write to or telephone FusionDigital Customer Services and seek resolution of the disputed amount. The Customer must pay any undisputed amount by the Payment Date. If FusionDigital agrees there is a mistake it will correct the bill immediately. If FusionDigital finds there is no mistake, the Customer will pay the outstanding amount immediately on being notified of FusionDigital’s finding, or by the Payment Date, whichever is the later.
8 REBATES FOR DISRUPTED SERVICE
8.1 If any Service for which a fixed charge is payable is unavailable for more than 24 hours after the Customer has notified FusionDigital of such unavailability (other than due to any act or omission of the Customer or any circumstance covered by clause 14 of this schedule) then FusionDigital will give the Customer upon request a proportionate rebate of the applicable fixed charge for the period of unavailability.
9 RESPONSIBILITIES OF THE CUSTOMER
9.1 The Customer agrees that it will not use the Services or permit the Services to be used in any way which:
(a) Is illegal; or
(b) could damage FusionDigital’s network or that of any other operator.
9.2 The Customer will ensure that all information it gives to FusionDigital is accurate, and that it will inform FusionDigital promptly of any changes to this information.
9.3 The Customer will use the Services for the purposes for which they are provided and in accordance with any reasonable directions given by FusionDigital.
9.4 The Customer is liable for and indemnifies FusionDigital against any costs, expenses or damages incurred by FusionDigital as a result of the Customer failing to comply with its obligations under this clause.
9.5 You are responsible for insurance and risk in the Products from
the time they are received by a carrier for delivery to you or collected
by you or your agent.
9.6 You agree to pay all delivery costs.
9.7 All claims for shortage or damage during delivery must be made to
the carrier within 7 days of the date of delivery. Where goods appear to
be damaged or missing you must contact the carrier and us immediately.
9.8 We will make every effort to ensure delivery of Products, or
performance of services, is on time, but will not be liable to you for
any loss or damage arising in any way from any delay in delivery or
performance. Delay in delivery or performance does not entitle you to
cancel any order.
9.9 Unless otherwise stated in writing, all Products will be box
shipped and it is your responsibility to assemble, configure and install
9.10 Where you ask us to deliver goods directly to another person,
that person takes possession of the goods for you as your agent, but you
are still directly responsible to us under these terms of trade.
9.11 You acknowledge and agree that returns shall only be accepted by
us in accordance with our returns policy as notified to you from time to
time, and that you may receive a credit for goods returned only if we
have consented in writing.
10 USE OF SERVICES BY THIRD PARTIES
10.1 The Customer acknowledges that it is responsible for any use of Services by any third party (whether authorised by the Customer or not) on the Customer’s premises or over whom the Customer otherwise has control.
11.1 To provide Services to the Customer it may be necessary for FusionDigital to install and maintain Equipment on the Customer’s premises. Except as otherwise agreed, FusionDigital will retain ownership of all Equipment installed or located on the Customer’s premises and may remove the Equipment upon termination of this Agreement, or earlier if the Equipment is no longer required for the provision of Services.
11.2 FusionDigital may have access to the Customer’s premises at all reasonable times and on reasonable notice (subject to compliance with the Customer’s reasonable security and health and safety requirements) to install, inspect, remove and maintain the Equipment.
11.3 The Customer must not interfere with the Equipment in any way.
11.4 The Customer must:
(a) Provide a suitable operating environment for the Equipment;
(b) Take reasonable precautions to protect the Equipment from theft or other loss or damage;
(c) Follow FusionDigital’s reasonable directions when using the Equipment; (d) Ensure that all equipment in the Customer’s premises that is connected to FusionDigital’s network, but not provided by FusionDigital, is telepermitted; (e) Take reasonable precautions to protect the Equipment from radio or electrical interference and power fluctuations; and
(f) If required by FusionDigital, obtain and maintain insurance to a value reasonably determined by FusionDigital, with a reputable insurance company against any loss or damage to any Equipment while under the Customer’s control or on the Customer’s premises. The Customer will ensure that FusionDigital’s interest is noted on the policy.
11.5 FusionDigital will ensure that all Equipment is safe, of merchantable quality and fit for the purpose for which it is provided.
12 PHONE NUMBERS AND IP ADDRESSES
12.1 FusionDigital may allocate phone numbers and/or Internet IP addresses to the Customer to enable it to use the Services. The allocation of these numbers does not confer any ownership rights in those numbers and the Customer may not transfer those numbers to anyone else.
12.2 If it is necessary to do so for operational reasons, FusionDigital may change any phone number or IP address allocated to the Customer. However FusionDigital will give the Customer as much notice as is reasonably possible of its intention to do so.
12.3 If the Customer requires the phone numbers or IP addresses after the termination of the Services, FusionDigital may assign the right to use the numbers to the Customer at FusionDigital’s discretion, and provided that this is possible and reasonable to do
13 FAULTS AND OUTAGES
13.1 Where any Service has a fault or outage FusionDigital will use reasonable endeavours to remedy that fault or outage within any time period specified in Schedule 2.
13.2 Where remedial action is required as a result of any act or omission of the Customer FusionDigital may charge the Customer at its standard rates for the cost of remedying the fault or outage.
14 FORCE MAJEURE
14.1 Neither party is liable to the other for failing to meet its obligations under this Agreement to the extent that the failure was caused by an act of God or other circumstance beyond its reasonable control. However where a party has been unable to perform its obligations for a period of 60 days or more the other party may immediately terminate this Agreement by giving notice in writing to the first party.
14.2 Nothing in clause 14.1 shall excuse a party from any obligation to make a payment when due under this Agreement.
15 SUSPENSION OF SERVICES
15.1 FusionDigital may from time to time be required for operational or other reasons to suspend or restrict a Service. In those circumstances FusionDigital will give the Customer as much notice as is reasonably possible. FusionDigital will use reasonable endeavours to ensure that suspensions or restrictions take place outside normal business hours.
15.2 FusionDigital shall not be liable to the Customer for any loss or damages caused by any such suspension, nor shall FusionDigital be liable to the Customer for any loss or damage where FusionDigital has had to suspend any service but has been unable to contact, or give notice to the Customer.
16.1 Either party may terminate this Agreement after the expiry of the Initial Term by giving 30 days notice in writing to the other party.
16.2 This Agreement may be terminated immediately by either party (“the First Party”) giving notice in writing to the other party (“the Other Party”) at any time: (a) Upon the Other Party committing any material breach of this Agreement which is incapable of being rectified;
(b) Upon the Other Party committing any material breach of this Agreement which is not rectified within 30 days of written notice of the breach having been given to the Other Party by the First Party;
(c) Upon the Other Party committing three or more material breaches of this Agreement in respect of which the First Party has given notice under clause 16.2(b) in any 12 month period;
(d) Upon the Other Party becoming insolvent; or
(e) Upon a receiver or manager of any asset of the Other Party being appointed, or an order made or resolution passed for the liquidation of the Other Party.
16.3 Termination of this Agreement for any reason shall not affect the rights or obligations of the parties in relation to any Services provided up to the date of termination.
17 CONFIDENTIALITY AND PUBLICITY
17.1 Neither party may reveal any information concerning this Agreement or its subject matter or the business of the other party to any third party other than:
(a) As required by law or the NZSE listing rules;
(b) In good faith and in proper furtherance of the objects of this Agreement;
(c) To its professional advisers; or
(d) Information already in the public domain.
17.2 Neither party may issue any press release or announcement concerning this Agreement or its subject matter or the business of the other party to the news media without the prior approval of the other party.
18 INTELLECTUAL PROPERTY RIGHTS
18.1 The Customer acknowledges that the intellectual property rights in the Services and the Equipment belong to FusionDigital or its licensors. All intellectual property rights in any improvements or changes to any Service or Equipment also belong to FusionDigital or its licensors.
19.1 Where the Services involve the provision to the Customer of any software the Customer may not copy, modify or reverse assemble the software and is licensed by FusionDigital to use the software only for the purposes, and in accordance with the terms, of this Agreement.
19.2 The Customer also may not copy, modify or reverse assemble any part of FusionDigital’s network management interfaces or infrastructure without FusionDigital’s express written permission. This includes FusionDigital’s ISP billing and management software.
20.1 The Customer acknowledges that it is acquiring the Services for the purposes of a business and that the provisions of the Consumer Guarantees Act 1993 do not apply to the provision of the Services by FusionDigital.
20.2 FusionDigital will compensate the Customer for any physical damage that it causes to the Customer’s property through not taking reasonable care, up to a maximum sum of $2,000.
20.3 Subject to clause 20.2, FusionDigital’s liability arising from any cause (including the negligence of FusionDigital or any of its employees, contractors or authorised representatives) in the provision of the Services or any failure to provide any Service shall be limited: (a) Where a fixed charge is payable for that Service, to FusionDigital’s monthly charge for providing the Service giving rise to the claim against FusionDigital; and (b) In all other cases, to FusionDigital’s actual charge for providing the Service giving rise to the claim against FusionDigital. All other liability (whether arising under the Consumer Guarantees Act 1993, any other enactment, or otherwise) is excluded to the fullest extent permitted by law.
20.4 All liability of any kind (including but not limited to negligence) on the part of any third party network operator, its officers, employees, contractors and agents, however arising in the provision of services by such network operator to FusionDigital is expressly excluded. This exclusion is included by FusionDigital as the agent of such persons for their benefit and may be enforced by them as a complete defence to any claim.
21.1 Any notice given pursuant to this Agreement will be deemed to be validly given if personally delivered, posted, or forwarded by facsimile transmission to the address of the party to be notified set forth below or to such other address as the party to be notified may designate by written notice given to the other party.
FusionDigital Communications Limited
Po Box 9280
21.2 Any notice given pursuant to this Agreement will be deemed to be validly given:
(a) In the case of delivery, when received;
(b) In the case of facsimile transmission, when sent provided the sender has a facsimile confirmation receipt recording successful transmission; and
(c) In the case of posting, on the second Working Day following the date of posting, provided that any notice personally delivered or sent by facsimile either after 5pm on a Working Day or on any day that is not a Working Day will be deemed to have been received on the next Working Day.
22 ENTIRE AGREEMENT AND VARIATION
22.1 This Agreement contains all of the terms, representations and warranties made between the parties and supersedes all prior discussions and agreements covering the subject matter of this Agreement.
22.2 No variation or waiver of any provision of this Agreement shall be recognised or binding on FusionDigital unless it is in writing and signed by an authorised representative of FusionDigital.
22.3 If any part of this Agreement is adjudicated null and void or unenforceable, the legality and effectiveness of the other terms and conditions shall not be affected or prejudiced by such adjudication.
22.4 This agreement shall not be modified once signed without the prior written consent of both parties.
22.5 This Agreement does not establish a labour relationship, joint venture or agency relationship with or between parties.
22.6 This Agreement shall be governed by and interpreted in accordance with the laws of New Zealand.
22.7 All conflicts, controversies, complaints or maladjustments that may arise between the Parties as a result of this Agreement, or as a consequence of the same, or for the non-performance of the Agreement for which the Partiescannot amicably resolve such dispute within a period of thirty (30) days of both Parties being made aware of such controversy in writing shall be referred to a single arbitrator in New Zealand agreed to by the parties and failing agreement by a single arbitrator appointed by the President of the New Zealand Law Society in each case subject to the provisions of the Arbitration Act 1908 and its amendments.
22.8 This Agreement contains all the terms, representations and warranties made between Parties and replaces all prior agreement made by and between Parties with respect to the subject matter hereof.
23.1 If there is any conflict between the main body of this Agreement and/or the Schedules, the parts of this Agreement will have precedence in the following order:
(a) The main body;
(b) Schedule 3;
(c) Service Schedules;
(d) Schedule 1;
(e) Schedule 2
24.1 The Customer must not assign this Agreement or any right or obligation under this Agreement without the prior written consent of FusionDigital. A change in control of the Customer will be deemed to be an assignment for the purposes of this clause. For the purposes of this clause “change in control” means: (a) A change of shareholding which results in a new majority shareholder; or
(b) A change in the right to appoint a majority of the directors.
24.2 FusionDigital may assign this Agreement or any right or obligation under this Agreement without the consent of the Customer.
25 NO WAIVER
25.1 No failure to exercise or delay in exercising any right or remedy by either party will constitute a waiver by that party of that or any other right or remedy available to it.
26.1 If the Customer is an individual, the personal information in this Agreement, and any other personal information that the Customer may provide at any time, may be used by FusionDigital for the purposes of checking the Customer’s credit and introducing other products and services to the Customer. The Customer has the right at any time to request an update or correction of the information held by FusionDigital, or to have FusionDigital remove the Customer’s name from FusionDigital’s mailing list.
27.1 As a customer of FusionDigital, and as a user of FusionDigital’s services, the Customer agrees to indemnify and to hold FusionDigital harmless from ANY and ALL claims by the Customer’s clients resulting from any use of the Services (as described in the Service Schedules) which causes damage to the Customer or to any party. FusionDigital will not be liable, neither in contract nor in tort, for protection from unauthorized access of its customer’s transmission facilities of customer owned premise equipment, or
for unauthorized access to or alteration of, or theft of destruction of, a customer’s
data files, programs, of information, through accident, fraudulent means of devices, or any other
method. FusionDigital shall not be, in any way, responsible for claims of damages caused by the Customer, through the fault, negligence of failure to perform the Customer’s responsibilities, claims against the Customer by any other party, any act or omission of any party furnishing services and/or products’ or for installation and/or removal of any and all equipment supplied by any service provider or FusionDigital.
27.2 The Customer agrees to indemnify, hold harmless, and defend FusionDigital, its directors, officers, employees, agents and their successors and assigns against and from any and all claims, including reasonable attorneys fees, arising from:
(a) Claims made by third parties for personal injury (or death) or loss or damage in personal property, arising out of or related to the negligent or willful misconduct contractual violations, errors or omissions, or the Customer or its subcontractors, directors, offices, employees, agents or representatives; or
(b) Any other third-party claim that is not already excluded by sub clause 27.1a; or
(c) Information, data, or messages transmitted using the Service by the Customer including, but no limited to, claims for liable, slander, invasion of privacy or alteration of data, arising from the use of equipment not provided by FusionDigital in connection with Service and Equipment, or for the Customer alteration of Software.