Terms & Conditions

INTERPRETATION
1. In this Agreement, unless the context requires otherwise:
  “Agreement” means this agreement between us, which includes the front page, Schedule 1 (Standard Terms), Schedule 2 (Service Description), Schedule 3 (Equipment), Schedule 4 (Service Level Agreement), Schedule 5 (Special Terms).
  “Charges” means our charges (exclusive of GST) for the Services, as set out in the Service Descriptions, which may include fixed charges, usage charges, additional fees and/or one-off fees.
  “Connected” means connection to the Network so that you are able to receive the Services.
  “Disconnected” means disconnection from the Network so that you are no longer able to receive the Services.
  “GST” means goods and services tax as defined in the Goods and Services Tax Act 1985.
  “Initial Term” means the initial term set out in 2 TERM OF AGREEMENT.
  “Late Payment Interest Rate” means, in respect of any day of a month, the average 90 day bank bill rate published in New Zealand on the Reuters screen BKBM at 11.00am on the first Working Day of that month plus 2.0 percentage points.
  “Network” means the telecommunications network that we use to provide the Services to you and to other customers (including any network to which we interconnect).
  “Our Equipment” means any equipment (including software) (which we may or may not own) that we provide to you in connection with the provision of Services.
  “Payment Date” means the payment date set out on each invoice we send to you.
  “Service” means all or part of a service which we have agreed to provide to you at a specific site and which is referred to in Schedule 2 and “Services” has a corresponding meaning.
  “Service Description” means a schedule attached to this Agreement describing a Service, the site at which the Service is to be provided, the Charges and any additional terms applying to that Service.
  “Telesmart”, “we” and “us” means Telesmart Limited.
  “Working Day” means a day other than Saturday or Sunday on which registered
  banks are open for business in Auckland, Wellington and Christchurch.
  “Your Equipment” means the equipment that you provide so that you can use the Services.
2. In interpreting this Agreement:
  references to either party include its respective successors in title and permitted assigns; and
  a reference to any date, which is not a Working Day, will be deemed to be a reference to the next Working Day.
TERM OF AGREEMENT
1. This Agreement commences on the date it is signed by both parties and will continue for 36 months from date of commencement then until terminated in accordance with this Agreement.
COMMENCEMENT OF SERVICES
1. We will begin providing Services to you in accordance with the timeframe that the parties agree in writing or, if no timeframe is agreed, within a reasonable time.
OUR COMMITMENT TO YOU
1. We will always:
  - provide the Services to you with due care and skill;
  - do our best to ensure that the Services are reliable and operate free of faults (although we do not guarantee that the Services will be continuous or fault free);
  - meet the service levels set out in Schedule 2 and 4; and
  - ensure that all work that we perform in connection with the provision of the Services is carried out by competent and suitably qualified personnel and in a professional manner.
2. From time to time we may temporarily suspend or restrict a service so that we can carry out maintenance and development work on the Network. We will always try to make sure that such suspensions or restrictions take place outside normal business hours and that we give you as much advance notice as possible.
3. Subject to clauses 5.5, 10.3 and 23.4, if any Service for which a fixed Charge is payable by you is unavailable for more than 24 consecutive hours in any one calendar month then we will, if you ask us to, credit or refund an amount equal to the fixed charges that would have otherwise been payable over the period of unavailability.
YOUR COMMITMENT TO US
1. You agree:
  - not to use the Services in any way which is unlawful;
  - not to use the Services in any way which could interfere with or damage our Network, any other operator's network, or another customer's enjoyment of our services;
  - to follow our reasonable instructions about the use of the Services; and
  - to only use the Services for the purposes for which they are provided.
2. You will make sure that all information you give to us is complete and accurate; this includes advising us promptly if you change premises or postal address.
3. You will, if we ask you to, obtain any third party authorisation, licence or consent that we reasonably require in connection with the provision of the Service (such as building consent).
4. You acknowledge that you are responsible for any use of the Services by any third party, whether authorised by you or not.
5. If you breach clause 5.1 and clause a fault in the operation of a Service then you will, if we ask you to, pay us the reasonable costs of restoring that Service.
6. We may charge you on a time and materials basis for diagnosing and/or fixing faults reported by you that fall outside our responsibilities under this Agreement or are not attributable to our Equipment, software or network.
INVOICING AND PAYMENT
1. You agree to pay our Charges for all the Services we provide to you, irrespective of who ultimately uses them. The Charges will apply from the date you are connected. You also agree to pay any GST that may be payable in addition to the Charges.
2. We will invoice you at approximately monthly intervals for the Services we provide to you. Fixed charges will normally be invoiced in advance and other charges will normally be invoiced in arrears.
3. You agree to pay each invoice by the Payment Date and without set- off, counterclaim or deduction.
4. If any invoiced amount remains unpaid after the Payment Date we may charge you interest at the Late Payment Interest Rate on that amount until it is paid in full.
5. Part payment of your invoice will not amount to a full and final settlement unless we have agreed to this in writing.
DISPUTED ACCOUNTS
1. If you believe that an invoice contains a mistake, please contact us as soon as possible and we will investigate the matter. You may withhold payment of the disputed amount, although you must still pay any undisputed amount by the Payment Date.
2. If we agree that we have made a mistake then we will correct the invoice immediately. If we find that there is no mistake, and the Payment Date has already passed, you agree to pay the outstanding amount straight away.
CREDIT ARRANGEMENTS
1. We are not obliged to begin providing Services to you until we have satisfied ourselves that you will be able to pay the Charges. If we have already begun providing Services to you and we then receive an unsatisfactory credit check, we may stop providing any Services.
2. We may at any time require you to make an advance payment or provide some other form of security to cover amounts payable by you under this Agreement. If this Agreement is terminated we will return to you any security not required to cover outstanding amounts.
OUR EQUIPMENT
1. If you have asked us to provide Services that require location of our Equipment on your premises then you agree to give our representatives safe access to your premises so that we can install, inspect, maintain, replace or remove our Equipment. If you are in rented premises then you will obtain the written permission of the owner that we are authorised to access, and locate our Equipment on, your premises for these purposes.
2. We will always make sure that our Equipment is safe, free from defects and fit for the purpose for which it is provided.
3. You agree:
  - to provide a safe and secure operating environment for our Equipment;
  - to take reasonable precautions to protect our Equipment from radio or electrical interference and power fluctuations;
  - not to damage or interfere with our Equipment;
  - to pay our charges for repairing or replacing any of our Equipment that is lost or damaged while located on your premises; and
  - if we ask you, to obtain and maintain insurance (to a value agreed by us) with a reputable insurance company against any loss or damage to our Equipment while under your control. You will ensure that our interest is noted on the policy.
4. If our Equipment is no longer required, or if you damage or interfere with our Equipment, then we may remove it from your premises.
YOUR EQUIPMENT
1. You will ensure that all of your Equipment that is connected to the Network and/or to our Equipment is permitted and is installed in accordance with our specifications.
2. You agree to follow our reasonable instructions about modifications that you may need to make to your Equipment so that you can use the Services.
3. Notwithstanding anything else in this Agreement, if your Equipment causes a fault in the operation of a Service then you will, if we ask you to, pay us the reasonable costs of restoring that Service.
NUMBERS, ADDRESSES & OTHER CODES
1. We may allocate phone numbers, electronic addresses and other codes to you. You will not have any ownership rights in those numbers, addresses and/or codes and you may not transfer them to anyone else.
2. If required by law or if it is necessary to do so for operational reasons, we may change any phone number, electronic address or code allocated to you. However, we will always give you as much notice as reasonably possible of any such change.
3. We will not alter or reallocate phone numbers, electronic addresses or other codes without your written consent and this consent will not be unreasonably withheld.
SUSPENSION
1. We may suspend the provision of Services at any time if you breach this Agreement. We will always give you 5 Working Days' notice of our intention to suspend, unless you breach clause 5.1, in which case we may suspend Services without notice.
2. We may require you to pay a reconnection charge as a condition of lifting any such suspension.
TERMINATION
1. We may stop providing any Service or terminate this Agreement after the expiry of the Initial Term (if any) by giving you 60 days' notice in writing.
2. Subject to clause 14.2, you may give up any Service or terminate this Agreement at any time, by giving us 60 days' notice in writing.
3. Notwithstanding clauses 13.1 and 13.2, either party may terminate all or part of this Agreement at any time by giving the other party notice in writing where the other party:
  - commits a material breach of this Agreement which is incapable of being rectified;
  - commits a material breach of this Agreement which is not rectified within 30 days of written notice of that breach having been given to the other party by the terminating party;
  - (or its directors or principals) goes into liquidation, bankruptcy or receivership (or it appears that any of these events is likely to happen);
  - has a receiver or statutory manager appointed over any or all of its assets; or
  - is removed from the Companies Register (other than as a result of a solvent amalgamation), is dissolved or dies.
CONSEQUENCES OF TERMINATION
1. When this Agreement is terminated:
  - you will be Disconnected;
  - clauses 13 to 23 (inclusive) together with the other provisions of this Agreement which are required to give effect to those clauses, will remain in effect;
  - each party must immediately return to the other any information, equipment or any other item which is in its possession and which belongs to the other party; and
  - we may access your premises to remove our Equipment. If we are unable to gain access we may invoice you and you agree to pay the standard replacement charge for the Equipment in question.
2. If you give up any Service or terminate this Agreement under clause 13.2 or we terminate all or part of this Agreement under clause 13.3 prior to the expiry of the Initial Term, then we may require you to pay:
  - an amount equal to 50 per cent of the Charges that we calculate would have otherwise been payable from the date of termination to the end of the Initial Term. We will calculate this amount by adding all the amounts invoiced to you divided by the number of months of the Initial Term elapsed at the date of termination, and multiplying this amount by the number of months remaining in the Initial Term; and
  - if we have agreed to waive a set-up charge, the amount of that set-up charge; and
  - if we have agreed to apply a discount to your usage charges, the actual value of the discount received by you under this Agreement less the value of the discount that we advise you that you would have otherwise received had we agreed to an initial term with an expiry date corresponding with the date of termination.
3. Termination and the rights set out in clause 14.2 are without prejudice to any other rights or obligations either party may have under this Agreement.
CONFIDENTIALITY, PUBLICITY & PRIVACY
1. Each party agrees not to reveal any information concerning the provisions of this Agreement or information provided under it to any third party, other than:
  - as required by law or by the rules of any stock exchange;
  - to its employees, agents and contractors in order to give effect to the purpose for which the information was provided;
  - where the information is already in the public domain (but not where it is in the public domain as a result of a breach of this clause); or
  - with the other party's written consent.
2. Each party agrees not to issue any press release or public announcement concerning this Agreement without the other party's prior written approval.
3. If you are an individual, you agree that we can collect personal information about you and that we can hold and use that information for a range of lawful purpose connected with our business operations, such as checking your credit worthiness, providing the Services and keeping you informed about new products and services. You may ask to see the information that we hold about you at any time and for any errors in that information to be corrected.
INTELLECTUAL PROPERTY RIGHTS
1. You acknowledge that all rights to intellectual property contained in the Services and in our Equipment (including any improvements or changes to any Service or to our Equipment) belong to us or to our licensors, provided that you are licensed by us to use our intellectual property for the purposes, and in accordance with the terms, of this Agreement. These intellectual property rights include, but are not limited to, all copyright, trademark and design rights relating to the Services.
SOFTWARE
1. If we provide you with any software in connection with the provision of the Services. You agree:
  - not to copy, modify or reverse assemble the software;
  - that you are licensed by us to use the software only for the purposes, and in accordance with the terms, of this Agreement and any terms upon which the software is ordinarily licensed or which we notify to you.
COMPENSATION & LIABILITY
1. You acknowledge that you are acquiring the Services for the purposes of a business and the Consumer Guarantees Act 1993 does not apply.
2. We will compensate you for any physical damage, which we cause to your property through our negligence, provided that our maximum liability to you under this clause will be $50,000 for any event or series of related events and $100,000 for all events occurring in any 12- month period.
3. We will compensate you for any loss, costs or damages which you incur as a direct result of our failure to meet any of our obligations under this Agreement or for any negligence by us in relation to the supply of the Services, provided that our maximum liability to you under this clause will be the value of 3 average months' Services used by you under this Agreement for all events occurring in any 12 month period.
4. Notwithstanding any other clause in this Agreement we will not be liable to you in tort (including negligence), contract or otherwise for any economic loss, loss of profit, loss of savings, loss of anticipated profit or savings, or for any indirect, special or consequential loss or damage, however caused.
5. No other network operator and/or third party supplier (including their officers, employees, contractors and agents) will be liable to you for loss or damage of any kind arising from your use of the Services. This clause creates an obligation that other network operators and/or suppliers can enforce as a defence to any claim.
6. Apart from the warranties expressly given to you in this Agreement, all other warranties, express or implied, are excluded (to the extent permitted by law).
DISPUTE RESOLUTION
1. If any dispute arises out of this Agreement, neither party is to commence proceedings relating to the dispute (except where urgent interlocutory relief is sought) unless that party has first complied with this clause 19.
2. A party claiming a dispute has arisen is to give written notice to the other party specifying the nature of the dispute. On receipt of that notice, the parties will use all reasonable endeavours to resolve the dispute by discussion, negotiation or other informal means.
3. If the parties do not resolve the dispute within 10 Working Days of the receipt of the notice then either party can, by writing to the other, require that the dispute be mediated in accordance with the standard mediation agreement of LEADR New Zealand Incorporated (Lawyers Engaged in Alternative Dispute Resolution), and the Chair of LEADR will select the mediator and determine the mediator's fee.
NOTICES
1. Any notice given pursuant to this Agreement must be in writing and be delivered, or sent by post or by facsimile, to the other party's contact address, as set out below.
  Telesmart Limited
  212 Willis Street
  Wellington
  PO Box 6017
  Wellington
  Facsimile: (04) 801 4640 Attention: Telesmart Notices
2. Any such notice will be assumed to have been delivered:
  - in the case of delivery, when received;
  - in the case of facsimile, when a correct transmission confirmation slip is received, or
  - in the case of posting, on the second Working Day after the date of posting.
ENTIRE AGREEMENT AND VARIATION
1. This Agreement supersedes all prior discussions and agreements that you may have had with Telesmart Limited for the provision of the Services.
2. No variation or waiver of any provision of this Agreement shall be recognised or binding unless it is in writing and signed by authorised representatives of both parties.
CONFLICT
1. If there is any inconsistency between the terms contained in different parts of this Agreement, the parts of this Agreement will apply in the following (descending) order of precedence:
  - Schedule 5;
  - Schedule 2;
  - Schedule 1;
  - Schedule 3;
  - Schedule 4.
GENERAL
1. You may assign any of your rights and obligations under this Agreement to any other person provided that you have obtained our prior written consent (such consent not to be unreasonably withheld).
2. We may subcontract any or all of our obligations under this Agreement without your consent, provided that we will remain ultimately responsible to you for carrying out those obligations.
3. Notwithstanding any other provision in this Agreement, neither party is liable to the other for failing to meet any of its obligations under this Agreement to the extent that the failure was caused by an act of God or other circumstance beyond that party's reasonable control.
4. No amendment to this Agreement will be valid unless it is recorded in writing and signed by both parties.
5. If either party delays or fails to enforce any of its rights or remedies under this Agreement, this will not constitute a waiver by that party of that or any other right or remedy available to it.
6. This Agreement may be executed in several counterparts (including copies), all of which when taken together shall constitute one single agreement between the parties.
7. The laws of New Zealand govern this Agreement. The parties agree to submit to the non-exclusive jurisdiction of the courts of New Zealand.
8. “You may appoint an agent to act on your behalf in relation to this Agreement provided that you first obtain our written consent, which may be given or withheld in our absolute discretion. Any consent given may include conditions.”