Terms and Conditions
“We”, “Us”, “Our” means Dynamite Design & Hosting Ltd, its successors and assigns, or any person acting on behalf of, and with the authority of, Dynamite Design & Hosting Ltd.
“You”, “Your” means the person/s requesting Us to provide to You the Services, as specified in any supply agreement, quotation, order, invoice or other document, and if there more than one person requesting the Services is a reference to each person jointly and severally.
“Services” means all Services (including, but not limited to, interactive access to the Internet, website development, website and email hosting, data back-up and storage, advice or recommendations, technical service and support and training, etc.) provided by Us to You, at Your request from time to time, including any computer resources, computer communications facilities, goods (including, but not limited to, any files, information, printed or virtual material, data or hardware), IP addresses and/or any other equipment supplied ancillary to the Services (“Hardware”) in order to facilitate the provision of Services. Where the context so permits the terms ‘Services’ or ‘Hardware’ shall be interchangeable for the other. Unless specified otherwise in writing, any Hardware supplied to You by Us is supplied on a lease basis (for the duration of the Services) and:
remains Our sole property or (as the case may be) any third party service provider; and
may be changed, substituted, revoked or repossessed by Us at Our sole discretion at any time; and
is not transferable.
“Charges” shall mean the cost of the Services (and any associated costs or fees) as agreed between You and Us, subject to clause 4 of this agreement, and are quoted, and payable, in New Zealand Dollars ($NZD).
“Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this agreement, either party’s Intellectual Property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information and pricing details.
By signing this agreement You confirm that You have read, understood and accept and agree to the following terms and conditions. These terms and conditions form a binding agreement between You and Us for the provision of the Services.
These terms and conditions may only be amended with Our consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between both You and Us.
Where this agreement stated that the Services are provided for a particular purpose, You must only allow the Services to be used for that purpose. You may not use the Services to commit an offence or allow anybody else to do so. You are responsible for ensuring that no one interferes with the operation of the Services or make it unsafe. You must follow Our reasonable instructions if We determine that Your use of the Services interferes, or threatens to interfere, with the efficiency of Our network or any third party service provider’s networks.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 22 of the Electronic Transactions Act 2002 (NZ), or any other applicable provisions of that Act or any Regulations referred to in that Act.
The Services are provided on the basis of specifications, information and instructions You provide to Us (whether written or verbal).You acknowledge that it is Your responsibility to ensure that such are detailed sufficiently to satisfy Our requirements of interpretation and understanding, as once accepted by You, Our quotation shall be deemed to interpret correctly those specifications, information and instructions. Therefore, We shall not accept any liability for the provision of Services contrary to Your intention, or errors or omissions therein, due to Your insufficient or inadequate provision of detailed specifications, information and instructions, or oversight or misinterpretation thereof, and We may charge You additional costs We may incur in re-providing or rectifying the Services, and if reasonably practical, will notify You of such costs before they are incurred and You agree to them.
This agreement constitutes the entire agreement between both You and Us, and You hereby acknowledge that no reliance is placed on any representation made by Us, but not embodied in this agreement.
Change in Control
You shall give Us not less than fourteen (14) days prior written notice of any proposed change of ownership and/or any other change in Your details (including but not limited to, changes in Your name, address, contact phone or fax number/s, or business practice). You shall be liable for any loss incurred by Us as a result of Your failure to comply with this clause.
as indicated on any invoice/s furnished to You by Us; or
the Charges as at the date of provision of the Services according to Our current pricing list; or
fixed for the duration of any fixed contract term, as specified on any supply agreement, quotation, order, invoice or other document provided by Us to You; or
Our quoted Charges (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
We agree that there will be no charge in the preparation of the initial quotation, which may include discussions, project scoping, etc. However, in some instances the aforementioned services may be charged to You additionally (at Our sole discretion).
We reserve the right to amend the Charges:
where there is any variation to the accepted plan of scheduled Services, or instructions/specifications, which will be charged for on the basis of Our standard hourly rates (and double such rate for any Services provided outside Our normal business hours) and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion; and
where the performance of this agreement requires Us to obtain products and/or services from a third party, this agreement shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to Us, and You shall be liable for the cost in full, including Our margin of such products and/or services; and
as a result of increases beyond Our reasonable control in the cost of Materials or labour (e.g. third party service provider’s costs, etc.), or due to fluctuations in currency exchange rates; and
in the event that We are requested to provide on-site services, in which case a minimum call-out fee equal to one (1) hours labour (and/or two (2) hours labour for any requested provision of Services after-hours), plus travel, parking costs and Materials, shall apply.
Notwithstanding clause 4.1, You acknowledge that additional charges may apply to certain services and support We provide (including, but not limited to, reconfiguration of the Your computer or network). Any such charges shall be shown as a variation to the original Charges.
Where a contract term is stipulated, We may adjust the monthly Charges from time to time upon providing one (1) months’ written notice to You. Services are billed to You one (1) month in advance (unless otherwise specified).
At Our sole discretion, a non-refundable deposit may be required.
on completion of the Services; or
by way of monthly instalments in accordance with Our payment schedule; or
twenty (20) days following the end of the month in which We furnish an invoice to You; or
the date specified on any supply agreement, quotation, order, invoice or other document provided by Us to You as being the date for payment; or
Payment may be made by bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to three point four (3.4%) of the transaction), or by any other method as agreed to between You and Us.
Unless otherwise stated the Charges do not include GST. In addition to the Charges You must pay to Us an amount equal to any GST We must pay for any provision of Services by Us under this contract, or any other agreement. You must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as You pay the Charges. In addition, You must pay any other taxes and duties that may be applicable in addition to the Charges, except where they are expressly included in the Charges.
Both You and Us agree that the Your obligations to Us for the provision of Services shall not cease (and where it is agreed that any ownership of the Hardware shall be transferred to You, such ownership shall not pass) until:
You have paid Us all amounts owing to Us; and
You have met all Your other obligations due to Us in respect of all agreements between You and Us.
Our receipt of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then Our ownership or rights in respect of the Services, and this agreement, shall continue. It is further agreed that, where it is intended that ownership of the Hardware shall transfer to You, until such ownership passes to You in accordance with clause 4.6:
You are only a bailee of the Hardware, and must return the Hardware to Us on request; and
You irrevocably authorises Us to enter any premises where We believe the Hardware is kept and recover possession thereof, without being liable for any damage caused.
If You pay any Charges in advance and they are varied, or the Services are terminated, We will refund You any overpayment, and You have to pay Us any underpayment. This clause does not detract from any obligations You may have to give notification to terminate the Services, or to pay early termination fees, where applicable.
You shall not be entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to You by Us, nor to withhold payment of any invoice because part of that invoice is in dispute. Where You, acting reasonably, dispute any portion of the Charges, You must do so in writing before the due date for payment thereof, and may withhold the disputed portion only until the dispute is resolved by both You and Us. Any non-disputed Charges may not be withheld.
Fixed Contract Term
This agreement shall commence on the date which Both You and Us agree that the Services will be made available to You, for Your use (“Start Date”), unless the Services are delayed by any reason beyond Our control. In absence of an agree Start Date, this agreement will deemed to have commenced ten (10) days after this agreement is signed by You, and We will be entitled to start billing You for the Services from the Start Date.
The Services shall continue for a contract term of twelve (12) months, or as otherwise stipulated in this agreement and, upon expiration of this term, will continue on a monthly basis, unless terminated in accordance with clause 18.
Subject to clause 18.1, if You wish to terminate the Services during the term stipulated, We may charge You an early termination fee, the amount of which will depend on the Services acquired by You and the date of termination.
We may terminate the Services prior to the expiry of the fixed contract term at any time (without charging an early termination fee) if We get Your consent to do so, and:
we appropriately off-set the effect of the termination on You, e.g. credit or rebate; and/or
we migrate You to alternative services for the remainder of the fixed contract term.
When You use the Services, You must:
comply with all laws, all directors by a regulator, all notices issued by authorisation of, or under, law (e.g. Copyright Act 1994) and reasonable directions by Us. Any use which violates any applicable national or international laws is strictly prohibited (e.g. posting or transmitting any unlawful, threatening, abusive, libellous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind – including, but not limited to, any transmission constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability); and
keep Your account information, password, data and Hardware confidential and secure. You remain responsible for any use or misuse of such; and
follow any reasonable instructions provided by Us in relation to the Services; and
access and use the Services solely in accordance with these terms and conditions and any reasonable instructions provided by Us; and
employ back-up power and surge protectors at Your premises.
use, or attempt to use, or permit another person to us or attempt to use, the Services:
so as to cause offence, to defame, abuse, communicate obscenities, menace or annoy;
for any purpose or activity of an illegal or fraudulent nature in any jurisdiction, including damaging any property or injuring or killing any person, to breach the security of any computer network (hacking), to breach any persons privacy, or to distribute unsolicited software or junk mail;
for advertising purposes without Our express written consent;
to breach any of the intellectual property rights held by Us or any third party, which exist with the Services or any supplied Hardware (including, but not limited to, copying, distributing, selling, renting, leasing or adapting any of the Services) or any property accessible by the Services, with the exception of making one (1) back-up copy of any supplied software or transferring of any supplied software to the hard disk drive of one (1) computer;
to transmit, publish or communicate materials which is defamatory, offensive, abusive, indecent, menacing or unwanted;
to expose Us to liability (including any claims for damages);
in any way which damages, interferes with or interrupts the Services, or a third party service provider’s network used to provide the Services;
to intercept or attempt to intercept any communication not otherwise intended for You.
If, in Our opinion, the Services are being used by anyone in breach of these terms and conditions (including clause 6) or Internet etiquette, We may:
refuse to post such infringing information to public areas (including, but not limited to, bulletin boards, databases or software libraries);
remove, review or edit such infringing information from any computer on Our network, with the exception of private electronic messages;
discontinue any infringing communication;
suspend the Services indefinitely, or for a specific period;
terminate the Services, and refuse to provide the Services to You, or Your associates, in the future;
inform appropriate government and regulatory authorities of suspected illegal or infringing conduct.
You authorise Us to delete without notice or liability any information or materials found on the Hardware (or hardware controlled by Us) that is found to be of an obscene nature, unauthorised, unlawful, uncollected for an excessive period of time or excessive in volume.
Provision of the Services
We shall provide the Service to You at such times and in such a manner as We, from time to time, decides at Our absolute discretion. We make no expressed or implied warranties whatsoever as to the fitness of the Services for a particular purpose or as to any other aspect of the Services.
Subject to the any agreed service levels and these terms and conditions, We will use reasonable care and skills in providing the Services to ensure You receive continual, uninterrupted and fault-free Services for the duration of this agreement. However, given the nature of telecommunications systems, including Our reliance on systems, hardware or software and services We do not own or control (including third party service providers), We cannot guarantee the availability of the Services at all times, which shall be subject to regularly scheduled maintenance cycles, and any events/circumstances beyond Our control. Any failure or delay by Us to provide the Services (promptly or at all) due to circumstances beyond Our control shall not itself constitute a default by Us under this agreement. Only the Services explicitly included in this agreement will be provisions and supported, all other service offering are specifically excluded. Where necessary for commercial, technical or other reasons:
We have no responsibility:
to provide training in the use of the Services and/or related applications; or
for any failure in providing the Services where attributable to a fault in Your phone line, and no credit or refund in relation to the Charges will be considered for such outages.
No guarantee is given by Us as to the availability (at any or all times) of the Services (including stability and connection speeds of data transmitted when using the Services) as advertised, as such may vary depending on the service kind and delivery infrastructure, including:
whether You are located in a coverage area;
the number of users sharing the network;
the computer hardware and software You use;
general activity on the Internet;
speed and capacity of the server being accessed.
Whilst we may supply Hardware in order to facilitate the provision of Services (e.g. phones, routers, etc.), subsequent replacement of such should any failure thereof occur beyond its warranty period is Your responsibility and at Your cost.
We may allocate You a domain name, or change Your existing domain name to one of Our choice. Unless otherwise agreed to between You and Us in writing, You have no intellectual property rights in the domain name, email address, User ID or password allocated by Us, and these are not transferable to You once the Services are terminated.
Fault Escalation Responsibilities
You are responsible for notifying Us of a service fault as quickly as possible.
We are responsible for trouble-shooting the source of the service fault, and either rectifying the fault in a timely fashion (i.e. if the fault is within Our network) or escalating the fault to the local fibre company (i.e. if the fault is within their network).
Our network staff are available between 7:00am and 7:00pm and have service targets for providing an update to Your fault enquiry within a maximum of sixty (60) minutes of the fault being notified by You to Us. Calls logged outside normal business hours will be attended to on the next business day. We reserve the right to charge support fees inside normal business hours where a fault has been notified and investigated and cannot be traced to either Our network. If the fault is found to be on Our network, no support fees will apply.
To access the Internet, the Services uses Your phone line. You will need a dial-up modem. Your computer may have a dial-up modem built in, or You can purchase a dial-up modem from most computer stores.
The Services provides access to the Internet and other data related services from Your computer via a wireless connection, subject to available coverage areas and network availability. In areas where the Services are available, We do not warrant that:
the Services will be available in each place within the area where there is coverage; and
drop-outs will not occur; and
there will be no delays in transferring data when switching between bearer and networks; and
there will be no congestion on the network.
We may need to access the property in order to provide the Services. You agree to provide us safe access to the property to:
install any Hardware to facilitate the provision of Services to You; and
inspect, test, maintain and repair or replace the Hardware; and
recover the Hardware after the Services have been terminated. We shall not be liable for any costs of removing the Hardware or remediation of the premises.
If You do not own the premises, it is Your responsibility to get the owner’s permission for Us to access the premises and install any Hardware.
You are responsible for providing a suitable location for the Hardware to be installed at the premises. This location needs to provide protection for the Hardware from radio or electrical interference, power fluctuations, abnormal environmental conditions, theft and any other risk or loss or damage from the time the Hardware is delivered to the premises to any termination or expiry of the Services. The Hardware requires proper lighting, air conditioning and fire protection, as well as LAN cabling and an approved AC mains power supply outlet within 1.2 metres. You need to provide Us with a nominated technical contact person.
You owe Us the full retail value of the Hardware (or any compatible replacement as is solely determined and specified by Us) as a debt due if We cannot access the premises to recover it, or in the event the Hardware is lost or damaged.
Advice and Recommendations
None of Our employees, agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by Our director, in writing, nor are We bound by any such unauthorised statements.
Any advice, recommendations, information, assistance or service provided by Us in relation to Services provided is given in good faith, is based on information provided to Us, and Our own knowledge and experience. Whilst it shall be Your responsibility to confirm the accuracy and reliability of the same in light of the use to which You make, or intend to make, of the Services, human error is possible under these circumstances, and We shall make all effort to offer the best solution to You.
There are many ways that undesirable content could reach Your computer, including through web browsing, chat, instant messenger applications, Internet denial of service attached, physical access to Your computer by other people, and sharing of risks or other media. We cannot guarantee that Your connection will be free of viruses, worms, Trojan horses or any other harmful materials and We recommend that You take reasonable precautions to protect Your computer and data, including:
operating firewall to filter Internet traffic;
running and regularly updating anti-virus and anti-spyware software; and
taking reasonable precautions with passwords, credit card numbers and allowing physical access to You hardware by other people.
Unless this agreement includes the provision of back-up and storage of data, We strongly encourage You to prepare and maintain sufficient back-up files and data storage capacity for all Your files and data, including websites, emails and any other electronic data. We shall not be held responsible or liable for any loss, corruption, or deletion of files or data (including, but not limited to, software programmes and/or hardware) resulting from illegal hacking.
Other than circumstances where We have incorrectly charged You for the use of the Services, You are responsible for, and have to pay for, any use of the Services, whether You authorise it or not. You are in the best position to monitor and control the usage of the Services and must ensure that they are not being used without Your authorisation by reviewing usage regularly. If You believe the Services are being used without Your authorisation, please contact Us immediately.
If You do not disconnect the Services when You vacate the premises, You have to pay for any use of the Services by any subsequent occupants or other parties. We therefore suggest You make every effort to ensure the disconnection of the Services when You vacate the premises.
You acknowledge that, in some circumstances We (or any third party provider) may:
monitor usage of the Services for excessive or unusual usage patterns, but We do not promise to do so. You remain responsible for monitoring the use of the Services in accordance with this clause 14; and
be required to intercept/monitor communications sent over the Services.
Your Hardware and Software
Where You use hardware and software that does not belong to Us in the course of utilising the Services:
You are responsible for maintaining and repairing that hardware and software. We will not be responsible for any faults resulting from Your failure to comply with this sub-clause; and
Where the hardware and software causes a fault in the Services that We need to repair, We may charge you for repairing the fault. We will advise You of the call-out fee and hourly rates applicable prior to commencing work on the fault;
You must only connect/install hardware and software that complies with relevant technical standards and other relevant requirements;
You must make all reasonable changes to the hardware and software when We request You to do so to avoid damage or interference;
You must advise Us of any changes to the hardware and software (and/or telecommunications services) that may affect Our ability to provide the Services to You;
it remains Your responsibility to contact the manufacturer directly in the event of any defect, etc.
You are responsible for any hardware and software at Your premises (including any Hardware that belongs to Us) and You must pay Us for any loss or damage to the Hardware at the premises, fair wear and tear excepted.
If during the course of providing the Services, We develop, discover, or puts into operation a new concept, product or process, or creates any goods, which is capable of being patented, then such concept, product or process, or goods shall be and remain Our property and You shall not use, or supply, the same in any way whatsoever without first obtaining Our written consent.
Neither You nor Us will not (and each party will procure that its officers, employees, agents and contractors):
use any Confidential Information for any purpose or reason, or disclose any Confidential Information for any purpose or reason, other than as required by law, or in accordance with this agreement; and
disclose to any person, other than a professional advisor, the nature or contents of this agreement, or any matter which is the subject of this agreement.
(subject to the payment of all outstanding Charges) by providing the other with thirty (30) days written notice of the intention to do so. However, if You are on a fixed term contract, such notice can only be given (without consequence) on the expiry of the contract term; or
at any time if the other is in material breach of this agreement and:
have been notified of such in writing and have failed to remedy it within fourteen (14) days of such notification; or
the material breach is something incapable of remedy, in which case the Services can be terminated upon immediate notification to the offending party.
the other becomes bankrupt or insolvent or appears likely to do so; or
the law requires it; or
the provision of the Services becomes illegal, or either party has reasonable grounds to believes they may become illegal.
We can suspend or restrict the provision of the Services (by cancelling Your access to the Services, Your password/s, and/or license to use Hardware supplied by Us) to You:
temporarily if We reasonably believe it is desirable to do so in order to maintain or restore part of any third party service provider’s network. We will try and perform maintenance and repair work at time that will cause the least inconvenience to Our customers. We will not charge you for (and rebate if necessary) any Charges during any period of suspension exceeding twenty-four (24) hours. If We have no alternative but to cancel the Services due to necessary maintenance or restoration of any part of any third party service provider’s network, We will not charge You any applicable termination fees; and
during the period before We terminate the Services because You are in material breach of this agreement. You will be in material breach of this agreement if You:
do not pay the Charges for the Services when they become due and payable;
use the Services in a way which We reasonably believe is fraudulent, poses an unacceptable risk to Our security or network capability (or that of any third party service provider’s network or other customers), or is illegal or in contravention of this agreement.
If You ask Us to reconnect the Services following suspension for failing to pay the Charges, You will have to pay Us a reconnection fee.
We may terminate, suspend or restrict the Services:
in accordance with clause 18.1(c);
there is an emergency that affects Our ability to provide the Services;
We are unable to provide the Services to You due to events outside Our reasonable control, such as failure in equipment that is not owned or operated by Us, or any force majeure event;
if We reasonably believe that providing the Services may cause death, personal injury or damage to property;
We cannot enter the property because of Your actions or omission when We need to do something in connection with the Services, in order to provide the Services or make the Services (or related Hardware) safe;
You vacate the property to which the Services are connected;
there is excessive or unusual use of the Services that is in breach of this agreement; or
We reasonably consider that You pose an unacceptably high credit risk to Us.
keep the Hardware in good, clean condition at all times; and
keep the Hardware at all times at the premises and within Your possession and control; and
ensure the Hardware is housed, used and operated in a suitable environment and in a skilful and proper manner, and in accordance with relevant user guides and all reasonable instructions issued by Us; and
notify Us of any change in circumstance which might otherwise impede Us in tracing Your location or that of the Hardware; and
insure the Hardware on terms satisfactory to Us; and
upon demand by Us in writing, promptly return the Hardware to Us; and
comply with the terms of the relevant manufacturers for the use of the Hardware.
You must not at any time:
do, of suffer to be done, anything with regard to the Hardware which might in any way prejudice the rights or interest of Us or (as the case may be) any third party service provider; and
alter or remove any label or other markings which are on the Hardware when delivered; and
tamper with the Hardware, or any integrated circuit, component or protection facility contained therein; and
permit any person (other than Us and any person authorised by Us in writing) to carry out repairs or maintenance to, or any removal or replacement of, the Hardware.
Notwithstanding any other terms and conditions ancillary to this agreement, if the Hardware proved to be defective under normal use due to defective materials, design and/or workmanship, We may (at Our sole discretion) either repair or replace the Hardware with equipment of the same or comparable type.
Upon the date of termination and/or expiry of this agreement (howsoever caused), You must promptly (and in any event within five (5) days from such date) return at Your own cost the Hardware to Us. You authorise Us to enter the premises where the Hardware is situated and take whatever steps are appropriate to disable or modify the Hardware, or remove it.
Failure to comply with any of obligations of this agreement, or there is any loss or damage to the Hardware, You must pay (upon demand by Us) an amount equal to the full retail price of the Hardware or any compatible replacement as is solely determined and specified by Us and all other amounts (of whatever nature) We may be held liable for by third parties die to such non-compliance, loss or damage.
Nothing shall preclude Us from exercising any other remedies available to Us under this agreement, in law and/or equity.
You acknowledge that the Internet is separate from this agreement, and that use of the Internet (and any information and materials either issued by You during Your use of the Services, or made available to You through Your use of the Services) is at You own risk and subject to any applicable legislation. We have no responsibility for any goods, services, information or materials (including the accuracy or appropriateness thereof), software, or other materials which You may issue or obtain when using the Internet.
Whilst You and Us are liable to each other for breach of contract or negligence under the principles applied by the courts, neither You or Us are liable to each other for any loss to the extent that it is caused by the other, including negligence or breach of this agreement, or failure to take reasonable steps to avoid or minimise the loss suffered.
We are not liable for:
any charges in relation to the telephone service incurred by You when dialling into the Internet. It is Your responsibility to ensure that You are dialling the correct telephone number for Your location and that it is a local call cost; and
any indirect, incidental, special and/or consequential loss and/or expense, claim or cost (including legal fees and commissions, loss of profit/income, business, contracts, opportunity, goodwill, reputation and/or anticipated saving), any loss or corruption of data, or other liabilities (howsoever arising) which You may suffer/incur as a result of Us failing to comply with Our obligations in relation to the Services (including resulting from, or in relation to, any failure or delay in Us providing the Services under this agreement, or any loss or data), where that loss is caused by events outside Our reasonable control, such as failure in equipment that is not owned by Us, as a result of a suspension of services in accordance with clause 7.1 or any force majeure event under clause 26.4. Alternatively, Our liability shall be limited to damages which under no circumstances shall exceed the Charges (but only to the extent that such Charges shall take into account the nature or length of the breach in relation to this agreement, and any contributory negligence on Your part).
The provisions set out in this clause 20 will continue unaffected by termination or suspension of the Services.
Any alleged fault, defect, shortage in quantity, errors, omissions or failure to comply with the scope or description of the contracted Services which You detect must be reported to Us as soon as is practically possible, but no later than seven (7) days after detection. Any emails or telephone messages which are received outside Our normal business hours will be processed the following business day. Upon such notification, You must allow Us to inspect the alleged defect. For defective Services, which We have agreed in writing that Your are entitled to reject, Our liability is limited to either (at Our discretion) rectifying the Services or re-providing the Services, provided that You have complied with the provisions of this clause 21.1.
You have complied with the provisions of clause 21.1; and
We have agreed in writing to accept the return of the Hardware; and
the Hardware is returned at Your cost within thirty (30) days of the delivery date; and
the Hardware is returned in as close a condition to that in which it was delivered as is possible, and with all packaging material, brochures and instruction material.
Subject to the conditions of warranty set out in clause 21.4, We warrant that if any defect in Our workmanship becomes apparent and is reported thereto within three (3) months of provision of the Services, then We will either (at Our sole discretion) repair or replace the workmanship. However, in respect of all claims, We shall not be liable to compensate You for any delay in either replacing or remedying the workmanship, or in properly assessing Your claim.
Your failure to properly maintain, store or use the Services (e.g. user error, etc.);
Your use of the Services for any purpose other than that for which they were designed;
Your continuing the use of the Services after any defect became apparent, or should have become apparent to a reasonably prudent operator or user;
Your failure to follow any instructions or guidelines provided by Us; or
fair wear and tear, any accident, or act of God.
For Hardware not manufactured by Us, the warranty shall be the current warranty provided by the manufacturer of the Hardware. We shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Hardware.
We may (in Our absolute discretion) accept non-defective Hardware for return, in which case We may require You to pay handling fees of up to twenty percent (20%) of the value of the returned Hardware, plus any freight costs.
Personal Property Securities Act 1999 (“PPSA”)
these terms and conditions constitute a security agreement for the purposes of the PPSA; and
a security interest is taken in all Hardware, and/or any of Your monetary obligations to Us for Services, that have previously been provided (if any), and that will be provided in the future, by Us to You.
You undertake to:
sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which We may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register; and
indemnify, and upon demand reimburse, Us for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register or releasing any registration made thereby; and
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Services in favour of a third party without Our prior written consent.
Both you and Us agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions.
You waive Your rights as a debtor under sections 116, 120(2), 121, 125, 126, 127, 129, 131 and 132 of the PPSA.
You shall unconditionally ratify any actions taken by Us under clauses 22.1 to 22.5.
In consideration of Us agreeing to provide the Services, You charge all of Your rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by You either now or in the future, to secure the performance by You of Your obligations under these terms and conditions (including, but not limited to, the payment of any money).
You indemnify Us from and against all Our costs and disbursements, including legal costs on a solicitor and own client basis, incurred in exercising Our rights under this clause.
You irrevocably appoint Us, and each of Our directors, as Your true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 23 including, but not limited to, signing any document on Your behalf.
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Our sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If You owe Us any money, You shall indemnify Us from and against all costs and disbursements incurred by Us in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Our collection agency costs, and bank dishonour fees).
Further to any other rights or remedies We may have under this agreement, if You have made payment to Us by credit card, and the transaction is subsequently reversed, You shall be liable for the amount of the reversed transaction, in addition to any further costs We incur under this clause 24 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to Your obligations under this agreement.
Without prejudice to any other remedies We may have, if at any time You are in breach of any obligation (including those relating to payment, whether or not the payment is due to Us) We may suspend or terminate the provision of Services to You (this includes but is not limited to, suspending or restricting the Services) under clause 18, and any of Our other obligations under these terms and conditions. We will not be liable to You for any loss or damage You may suffer because We has exercised Our rights under this clause, and all amounts owing to Us shall, whether or not due for payment, become immediately payable.
access, collect, retain and use any information about You;
(including any overdue fines balance information held by the Ministry of Justice) for the purpose of assessing Your creditworthiness; or
for the purpose of marketing products and services to You.
disclose information about You, whether collected by Us from You directly, or obtained by Us from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a default by You.
Where You are an individual, the authorities under clause 25.1 are authorities or consents for the purposes of the Privacy Act 1993.
You shall have the right to request Us for a copy of the information about You retained by Us, and the right to request Us to correct any incorrect information held by Us about You.
Our failure to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Our right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
We may assign, appoint agents, transfer, license or sub-contract all, or any part of, Our rights and obligations contained in this agreement without Your consent.
with Our full consent, which will not be unreasonably withheld in the case of a solvent assignee with the technical expertise and financial resources to satisfy Your obligations under this agreement (proof of which will be Your responsibility); or
to a related company (within the meaning of the Companies Act 1993); and
in either case, only with the re-granting or replacement by You to Our satisfaction of any guarantee which exists in relation to the original agreement.
You hereby disclaim any right to rescind, or cancel this agreement, or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to You by Us, and You acknowledge that the Services are purchased relying solely upon Your skill and judgment.
If Your are acquiring Services for the purposes of a trade or business, You acknowledge that the provisions of the Consumer Guarantees Act 1993 do not apply to the provision of Services by Us to You.
Neither You or Us shall be liable for any default due to fires, explosions, severe weather, industrial disputes, insurrection, requirements or regulations, or any civil or military authority, acts of war (whether declared or not), civil unrest, acts of God, earthquake, flood, riot, embargo, government act, strike, lock-out, storm, terrorism, DNS caching, propagation, or other DNS issues outside the reasonable control of either party, or failure or outage of any telecommunications links or other connections forming part of the Internet which are beyond the reasonable control of either party.
You warrant that You have the power to enter into this agreement, and have obtained all necessary authorisations to allow You to do so, You are not insolvent and that this agreement creates binding and valid legal obligations on You.
You agree that We may amend these terms and conditions at any time, subject to the following:
if We reasonably believe that any proposed amendment will benefit You, or have a neutral impact on You, We can make the amendment immediately; We will take reasonable steps to bring the general nature of such changes to Your attention; or
Where We reasonably believe that any proposed amendment will have a minor impact on You, We will provide You with fourteen (14) days written notice of such change, and if the amendment will have more than a minor impact on You We will allow You to terminate this agreement without incurring any early termination fees.