TERMS AND CONDITIONS OF TRADE FOR PROVISION OF SERVICES AND EQUIPMENT
1. DEFINITIONS
"Agreement" means these Standard Terms and Conditions and the details on the Application for services or equipment provided by iion.
"CGA" means the Consumer Guarantees Act 1993 in relation to goods and services.
"CPE" means Customer Premises Equipment being computer hardware owned by iion and supplied to the Customer for the duration of the Agreement.
"Customer" refers to all other persons, companies, or other entities identified on the Application for a iion Internet Account.
"Equipment" means computer hardware (eg computers, servers) supplied by iion and purchased by the Customer.
"Force Majeure" means any event or circumstance which is beyond the control of either party and which results in, or causes the failure of, that party to perform any of its obligations under this Agreement including acts of God which, or the results of which, could not have been prevented by reasonable care, act of a public enemy, declared or undeclared war, threat of war, terrorist act, blockade, revolution, riot, insurrection, civil commotion, or public demonstration
"Service" means the computing and communications services provided by iion.
(i) "iion" means iion Limited and its employees, officers, agents and affiliates.
2. APPLICATION AND VARIATION OF THESE TERMS
These terms and conditions are the terms on which iion provides Services, Equipment and/or CPE to its Customers, modified by any written contract between iion and its Customers in any particular case. The terms so modified constitute the agreement in its entirety and supersede prior agreements. iion may modify these terms as applying to any agreement, the pricing structure for any Service, Equipment and/or CPE or the terms of the operation by general notice on the page of the Internet referred to on the iion Home Page, and any use after that publication will constitute an acceptance of those modifications.
3. IION'S COMMITMENTS TO THE CUSTOMER
iion is committed to:
Putting the Customer in touch with the correct person within the company to answer Customer inquiries.
Responding to the Customer's needs quickly and efficiently.
Keeping the Customer informed of new services that may benefit the Customer.
4. IION'S COMMITMENTS TO THE PROVISION OF SERVICES AND SALE OF EQUIPMENT
4.1 In providing Services, iion will endeavour to:
Provide prompt and efficient service
Make reasonable efforts to ensure the Services do everything iion states that they will do, but iion does not represent or guarantee that they will
Provide Services within a reasonable time or within any predetermined time limit
Do the utmost to provide a reliable Service although the inherent nature of technology prevents a guarantee that it will be continuous or fault free and
Make every effort to fix any fault or disruption which occurs in providing the Services (other than any fault or disruption with Telecom New Zealand or TelstraClear networks or with any other networks)
4.2 Whenever iion sells Equipment, iion will endeavour to ensure that:
The Equipment will, for the 12 month period after the date it was sold, be fit for the purpose for which that equipment is normally provided
The Equipment will perform according to its specifications and will fulfill the requirements as documented and
The Equipment will be approved for connection to Telecom network, if necessary.
5. MANUFACTURER'S EQUIPMENT WARRANTY
Where iion sells Equipment to the Customer, then, where possible, any warranties provided by the manufacturer of the Equipment will be assigned to the Customer. Where this is not possible iion will hold those warranties for the Customer's benefit. A claim under a manufacturer's warranty must be produced in writing to iion with a copy of the purchase invoice so that iion can pursue it on the Customer's behalf. There will be no obligation to supply replacement Equipment while repairs or replacement is determined under any manufacturer's warranty. No claim under the CGA or manufacturer's warranty will be grounds for withholding any payment due to iion.
6. THE CUSTOMER'S RESPONSIBILITIES
6.1 Whenever iion provides Services, Equipment and/or CPE to the Customer, the Customer undertakes that it will:
Follow iion's directions and advice regarding the use of the Services, Equipment and/or CPE
Use the Services, Equipment and/or CPE for lawful purposes only
Comply with the Acceptable Use Policy contained in Clause 7
Make sure all information provided is correct and complete
Ensure that anyone else using the Services, Equipment and/or CPE meets these responsibilities
Provide reasonable access to the Customer's premises during working hours so as to enable iion to repair any Equipment, CPE or Services
Pay for repairing or replacing any part of the Equipment, and/or CPE which is on the Customer's property and is lost or damaged by the Customer or anyone else for whom the Customer is responsible
Make due and prompt payment of all charges, costs and expenses payable under this Agreement
Meet all the Customer's obligations under this Agreement and
6.2 Whenever CPE is supplied by iion to the Customer, the Customer further undertakes and acknowledges that:
iion retains all ownership rights in respect of the CPE
It is responsible for any loss, theft or damage to the CPE
It will insure and keep insured the CPE at all times
It will not sell, lease, dispose of, lend, pledge, charge or otherwise part with possession of the CPE
It will not use the CPE for any purpose other than to access the Services and
It will not modify or interfere with the CPE and
In the event that it is in default under any of the terms of the Agreement, iion may upon the giving of three working days notice enter the premises and remove the CPE.
7. INDEMNITY
The Customer agrees to indemnify iion from and against all claims, expenses, damages or other liabilities arising directly or indirectly from the use of the Services, Equipment and/or CPE by the Customer (or its representatives, employees or associates or any other person using the Equipment, CPE and/or Services provided), including but not limited to claims in respect of the accessing of obscene, defamatory and/or offensive materials, defamation, breach of copyright or other intellectual property right infringement. The Customer further agrees to indemnify iion against any claims made against iion should iion exercise its rights to enter the Customers premises as specified in clauses 6.2 and 10.
8. CREDIT CHECKS PRIVACY CONSENT
The Customer consents to iion instructing a credit-reporting agency to obtain personal information (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by iion of an application for credit (whether commercial or personal) or for the purpose of collection of payments that are overdue or for the ongoing credit management of the Customer.
9. CHARGES
The Customer accepts liability for the Services, Equipment and/or CPE provided regardless of who uses them. All charges are payable monthly and are subject to change with thirty days written notice. The acceptance of this agreement permits credit checks to be carried out on the Customer in accordance with clause 8. All charges are to be paid on time on a monthly basis. Failure to keep an account current will result in suspension of Services and all costs of recovery shall be at the Customer's expense.
10. BILLING
iion will invoice charges monthly. Each invoice will advise the due date for payment. If payment is not made to iion by the due date then:
The Customer may be charged a late payment charge
5% interest may be charged from the due date until the date it is paid
The Customer may be required to pay any costs incurred by anyone (including agents) in recovering the money owed, or in exercising any other rights, including commissions, credit collection and legal costs on a solicitor client basis and
iion may withhold, suspend, restrict or terminate any Service provided to the Customer and the Customer will have to pay any re-connection fees.
iion may, upon the giving of 3 business days notice, enter the Customer's premises and remove the CPE.
11. SUSPENSION OF SERVICES
In the event that the Customer does not meet any of its responsibilities and/or obligations under this Agreement, iion may change, withhold, suspend, restrict, replace or terminate any Service provided to the Customer or the entire Agreement or take such other steps as iion believes are necessary or appropriate. Where a Service is suspended or terminated for the reasons set out above the Customer will be required to pay all re-connection costs.
iion will not be liable for any loss suffered by the Customer as a consequence of any action taken by iion under this clause.
The Customer agrees that normal charges will continue to apply during the period of suspension or restriction of the Services.
12. DISRUPTION OF SERVICES
From time to time the Services may be disrupted and the Customer acknowledges that iion will not be liable to the Customer or to any other party for any loss suffered whatsoever due to the disruption of Services nor will iion refund any of the charges made by iion in respect of the Services during the time that the Services are disrupted.
13. CONSUMER GUARANTEES ACT
The parties acknowledge that residential Customers will have rights under the Consumer Guarantees Act 1993 and this clause does not alter those rights. However, if the Services, Equipment and/or CPE are used for business purposes (or if the Customer has advised or represented to iion that they will do so) then the Customer agrees that the Consumer Guarantees Act does not apply to this Agreement.
14. NO WARRANTIES MADE BY IION
Notwithstanding clauses 3 and 4 of this Agreement the Customer acknowledges that no promises, representations, warranties or undertakings have been made or given by iion to any person or company on its behalf in relation to the suitability, reliability, availability, timeliness, lack of viruses or other harmful features, profitability of or any other consequences or benefits to be obtained from the delivery and use of the Services, Equipment and/or CPE. The Customer acknowledges that it has relied on its own skill and judgement in deciding to acquire the Services, Equipment and/or CPE.
15. LIMITATION OF WARRANTIES
Notwithstanding anything stated in this Agreement all warranties in respect of the provision of Equipment, CPE and Services by iion are excluded (whether express implied or statutory, including but not limited to warranties of merchant-ability, fitness for a particular purpose or non-infringement) except to the extent that such Warranties can not be excluded by law.
16. LIMITATION OF LIABILITY
iion's liability in respect of a breach of warranty that can not be excluded by law is limited at the exclusive option of iion as follows:
In respect of Equipment and CPE, iion's liability is limited to:
The replacement or repair of such Equipment, or
The payment of the cost of repairing or replacing such Equipment (whichever is the lesser)
In respect of Services, iion'sliability is limited to:
The supplying of those Services again or
The payment of the cost of having those Services supplied again.
17. EXCLUSION OF DAMAGES
iion will not in any circumstances be liable to the Customer or any third party for any damages whatsoever (including, without limitation damages for loss of revenue, profit, business, business interruption, loss of business information or any other direct, indirect, incidental or consequential loss or special punitive or exemplary damages or losses which the Customer may suffer or incur) arising out of the use or inability to use or supply or non-supply of the Services, Equipment and/or CPE.
iion's total liability (including total liability for multiple events and/or breaches of this Agreement) under this Agreement is limited as follows:
In respect of damages suffered as a result of Services and/or CPE provided, to the amount actually paid by the Customer for the Services in the month period prior to the date that the damages occurred
In respect of damages suffered as a result of Equipment supplied, to the amount paid by the Customer in respect of the Equipment.
The Customer agrees that to be entitled to the remedies as set out in clause 17 above the Customer must give details of iion's failure and provide satisfactory proof of the expenses incurred as a result of iion's failure within 3 months of the date on which iion's failure first incurred.
18. NO OTHER REMEDY
The Customer agrees that clauses 17 and 18 set out the Customer's sole and exclusive rights and remedies against iion and its respective officers, employees, contractors, agents and suppliers in relation to any claims brought by the Customer or any third party in respect of any damage whatever and however liability arises or might arise (whether contract, tort, negligence, equity, breach of statutory duty or otherwise) and that iion will not be liable for any additional amounts or other forms of compensation, damages, loss or expenses whatsoever.
19. DISCLAIMER AND EXCLUSION
To the fullest extent permitted by law the Customer agrees that iion will not be responsible for any unauthorized access to or alteration of the Customer's communications or data, any material or data sent or received or not sent or not received, any transactions entered into through use of the Services any threatening, defamatory, obscene, offensive or illegal content or conduct of any other party or any infringement of another's rights, including intellectual property rights. iion is not responsible for any content sent or received using or included in the Services by any third party.
20. EXCLUSION OF LIABILITY
The Consumer Guarantees Act will apply to the supply of Services, Equipment and/or CPE of any kind ordinarily acquired for personal, household or domestic use or consumption, except where the Customer has acquired the Services, Equipment and/or CPE for the purpose of a business in any way. iion excludes all other liability it may have to the Customer. This exclusion also applies for the benefit of iion's employees, contractors and agents. None of these are liable to the Customer or has to pay the Customer for anything in respect of anything they do or do not do, or delays in doing, no matter what the terms of the agreement between the Customer and iion. This exclusion applies no matter what the Customer's claim and however liability may arise.
21. OWNERSHIP OF EQUIPMENT
The Equipment shall be at the Customer's risk from the time of delivery to the Customer. Title to Equipment and products shall not pass from iion until the price and any late interest due and GST is paid in full. Even though possession or control of the Equipment may be with the Customer, transfer of title will not occur before full payment is made. The Customer must take good care of the Equipment until payment is made in full. The Customer is not entitled to pledge or charge or in anyway dispose of the Equipment or take possession of the Equipment until ownership has passed. Until title has passed to the Customer it will hold the Equipment as trustee for iion.
Personal Property Securities Act 1999(PPSA) - the Customer permits iion to, at iion'sdiscretion and without notice to the Customer, register the Equipment under the PPSA.
22. TERMINATION OF SERVICES
One month's written notice of termination is required by either party under this agreement (except where a debt is overdue). If the agreement is for a fixed term then payment for the charges for the Service until the end of that time period will be due irrespective of cancellation. Failure to pay charges or meet other responsibilities under any agreement between the parties may result in the suspension, restriction or termination of the Services. It may be necessary to temporarily suspend or restrict any Service if the Service or Equipment requires maintenance or upgrading or for any other purpose that is deemed necessary.
23. RIGHTS TO COMPENSATION
The Customer agrees to meet all expenses, including legal fees incurred in collecting any money owed or in exercising any legal rights.
24. INTELLECTUAL PROPERTY RIGHTS
iion retains Intellectual property rights in the Equipment, CPE, advice, software products, documentation and solutions forming part of the Services. All information about the design of solutions provided is confidential and must not be copied or disclosed.
25. FORCE MAJEURE
Suspension of Obligations:
If either party is unable to carry out any of its obligations under this Agreement because of Force Majeure, this Agreement will remain in effect but except as otherwise provided, both parties' obligations, other than any obligation not affected by the Force Majeure, will be suspended without liability for a period equal to the period of the Force Majeure, and:
The non-performing party will give the other party prompt notice describing the event or circumstance claimed to be Force Majeure, including the nature of the occurrence and its expected duration and, where reasonably practicable, continue to furnish regular reports with respect thereto during the period of Force Majeure
The suspension of obligations will be of no greater scope than is required by the Force Majeure
No obligations of either party which accrued before the Force Majeure will be suspended as a result of the Force Majeure and
The non-performing party will use all reasonable efforts to remedy as quickly as possible its inability to perform its obligations.
26. ASSIGNMENT
Assignment of entitlement under this agreement is permitted provided iion has granted approval in writing. iionreserves the right to assign to subcontractors or third party operatives to fulfil its obligations under this agreement.
27. GOVERNING LAW
This Agreement is governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand Courts.
28. VALIDITY
If a term or condition herein is held by a Court to be unenforceable then such term or condition shall be severed from all other terms and conditions without affecting the enforce-ability of those other terms and conditions.