AGREEMENT
| BETWEEN : | TelstraClear Limited at Auckland ("TelstraClear") |
| AND : | The TelstraClear account holder ("Customer") |
- TelstraClear agrees to provide Services to the Customer, and the Customer agrees to take those Services, on the terms set out in Schedules 1 and 2 and the Service Schedule of this Agreement.
- The Commencement Date of this Agreement is the date that the Customer accepts the terms and conditions contained in this Agreement by clicking on the "Accept" button below.
- The Initial Term of this Agreement is 30 days from the Commencement Date.
SCHEDULE 1: Standard Terms
1 INTERPRETATION
1.1 In this Agreement unless the context requires otherwise:
"Agreement" means this agreement including the schedules and Service Schedule.
"Commencement Date" means the date specified as such on the front page of this Agreement.
"Equipment" means any equipment (including software) provided by TelstraClear 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 TelstraClear invoice as the payment date.
"Service" means all or any part of a service referred to in the Service Schedule and
"Services" shall have a corresponding meaning.
"Service Schedule" means the schedule attached to this Agreement describing the Service to be provided by TelstraClear 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 In interpreting this Agreement the following rules must be applied unless the context otherwise requires:
(a) Headings to clauses are for reference only and are not an aid in 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) Any obligation not to do something will be deemed to include an obligation not to suffer, permit or cause that thing to be done.
2 TERM
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 TelstraClear 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 OBLIGATIONS OF TELSTRACLEAR
4.1 TelstraClear 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 TelstraClear 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 TelstraClear performs work for the Customer in connection with the provision of the Services, it will ensure that all work is carried out by competent and suitably qualified personnel, in a professional manner and in accordance with appropriate standards and regulations.
5 CHARGES
5.1 TelstraClear's charges for the Services are those set out in the Service Schedule 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 TelstraClear's charges.
5.2 TelstraClear will send the Customer a monthly invoice for all Services provided to the Customer and which TelstraClear's records show are chargeable to the Customer's account.
5.3 Fixed charges will be invoiced in advance. Usage based charges will be invoiced in arrears. The Customer must pay all charges by the Payment Date.
6 LATE PAYMENT AND SUSPENSION OF TELSTRACLEAR SERVICE
6.1 TelstraClear may charge the Customer interest at a rate of 1.5% per month on accounts which 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 TelstraClear for any Service by the Payment Date TelstraClear may suspend the provision of that and/or any other Service. TelstraClear will give the Customer 5 Working Days written notice of its intention to suspend any Service.
6.3 TelstraClear 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 TelstraClear Customer Services and seek resolution of the disputed amount. The Customer must pay any undisputed amount by the Payment Date. If TelstraClear agrees there is a mistake it will correct the bill immediately. If TelstraClear finds there is no mistake, the Customer will pay the outstanding amount immediately on being notified of TelstraClear's finding, or by the Payment Date, whichever is the later.
8 REBATE FOR DISRUPTED SERVICE
8.1 If any Service for which a fixed charge is payable is unavailable for more than 24 hours (other than due to any act or omission of the Customer or any circumstance covered by clause 14 of this schedule) then TelstraClear will give the Customer upon request a proportionate rebate of the applicable fixed charge for the period of unavailability.
9 CUSTOMER'S COMMITMENT TO TELSTRACLEAR
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 TelstraClear's network or that of any other operator.
9.2 The Customer will ensure that all information it gives to TelstraClear is accurate.
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 TelstraClear.
9.4 The Customer is liable for and indemnifies TelstraClear against any costs, expenses or damages incurred by TelstraClear as a result of the Customer failing to comply with its obligations under this clause.
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 EQUIPMENT
11.1 To provide Services to the Customer it may be necessary for TelstraClear to install and maintain Equipment on the Customer's premises. Except as otherwise agreed, TelstraClear 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 TelstraClear 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 TelstraClear's reasonable directions when using the Equipment;
(d) ensure that all equipment in the Customer's premises which is connected to TelstraClear's network, but not provided by TelstraClear, is telepermitted;
(e) take reasonable precautions to protect the Equipment from radio or electrical interference and power fluctuations; and
(f) if required by TelstraClear, obtain and maintain insurance to a value reasonably determined by TelstraClear, 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 TelstraClear's interest is noted on the policy. 11.5 TelstraClear will ensure that all Equipment is safe, of merchantable quality and fit for the purpose for which it is provided.
12 PHONE NUMBERS
12.1 TelstraClear may allocate phone numbers to the Customer to enable it to use the Services. The allocation of phone 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, TelstraClear may change any phone number allocated to the Customer. However TelstraClear will give the Customer as much notice as is reasonably possible of its intention to do so.
13 FAULTS AND OUTAGES
13.1 Where any Service has a fault or outage TelstraClear 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 TelstraClear 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 TelstraClear may from time to time be required for operational or other reasons to suspend or restrict a Service. In those circumstances TelstraClear will give the Customer as much notice as is reasonably possible. TelstraClear will use reasonable endeavours to ensure that suspensions or restrictions take place outside normal business hours.
16 TERMINATION
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 New Zealand Stock Exchange 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 TelstraClear or its licensors. All intellectual property rights in any improvements or changes to any Service or Equipment also belong to TelstraClear or its licensors.
19 SOFTWARE
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 TelstraClear to use the software only for the purposes, and in accordance with the terms, of this Agreement.
20 LIABILITY
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 TelstraClear.
20.2 TelstraClear will compensate the Customer for any physical damage which it causes to the Customer's property through not taking reasonable care, up to a maximum sum of $50,000.
20.3 Subject to clause 20.2, TelstraClear's liability arising from any cause (including the negligence of TelstraClear 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 TelstraClear's monthly charge for providing the Service giving rise to the claim against TelstraClear; and
(b) in all other cases, to TelstraClear's actual charge for providing the Service giving rise to the claim against TelstraClear. 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 TelstraClear is expressly excluded. This exclusion is included by TelstraClear as the agent of such persons for their benefit and may be enforced by them as a complete defence to any claim.
21 NOTICES
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. TelstraClear Limited, TelstraClear Centre, Cnr Northcote & Taharoto Roads, Takapuna, Private Bag 92143, Auckland. Facsimile: (09) 912 4410 Attention : Legal Counsel The Customer The Customer's billing address as advised by the Customer to TelstraClear.
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 TelstraClear unless it is in writing and signed by an authorised representative of TelstraClear.
23 CONFLICT
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) the Service Schedule; (c) Schedule 2; (d) Schedule 1.
24 ASSIGNMENT
24.1 The Customer must not assign this Agreement or any right or obligation under this Agreement without the prior written consent of TelstraClear. 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 TelstraClear 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 PRIVACY
26.1 If the Customer is an individual, the personal information in this Agreement, and any other personal information which the Customer may provide at any time, may be used by TelstraClear for the purposes of checking the Customer's credit and introducing other products and services to the Customer.
26.2 The Customer has the right at any time to request an update or correction of the information held by TelstraClear, or to have TelstraClear remove the Customer's name from TelstraClear's mailing list.
&nbso;
SCHEDULE 2: Service Level Agreement
As per current TelstraClear's Service Level Agreement.
SERVICE SCHEDULE: ENVISION
PART A - SERVICE DETAILS
Envision from TelstraClear is the application service provider ("ASP") service offered to TelstraClear customers.
Envision is an ASP service where one or more business applications are hosted by TelstraClear on its customers' behalf. Access to these applications is provided through a dedicated Internet connection. Customers are charged a monthly fee based on a per user per month basis.
Envision offers a comprehensive messaging and collaborative service, by providing the following hosted business applications:
- Microsoft Outlook Client 2000 - is a powerful information management system that gives access to mail management, scheduling, task and contact management tools.
- Microsoft Outlook Web Access (OWA) - is a web-based email solution that offers similar tools to Outlook 2000 Client, but with fewer features. OWA is accessed through a browser.
- intraNet - is a private, secure space on the web where people in a company or group can easily share information such as phone lists, company documents and the latest news. Unlike public web sites, the intranet is password-protected, meaning the Customer has control over who has access to its site.
PART B -PRICING
TelstraClear's monthly charge for Envision varies depending on the number of users per Customer, and the amount of disk space required by the Customer.
If the Customer increases or decreases the number of users and /or the disk space, the charges payable by the Customer will be increased or decreased (as the case may be) from the date the change takes effect.
Storage
40MB per user is supplied as standard for each user of Microsoft Outlook 2000 Client and Microsoft Outlook Web Access.
100MB per Customer is supplied as standard for each Customer using the TelstraClear intraNet.
Additional storage may be purchased in 10MB increments.
1. TelstraClear may at any time change the prices set out above. Any amended prices will be effective from the date on which they are posted on the Clearnet website or emailed to the Customer.
2. All prices exclude GST.
3. Prices exclude the cost of installing the Software at the Customer's site or its desktop/ LAN/WAN environment (as the case may be).
4. TelstraClear can, at the Customer's request and cost, provide the following professional services:
- Architecture design
- Development
- Implementation expertise
- Telecommunications expertise
- Project management.
Please contact TelstraClear on 0508 555 500 for the applicable professional service rates.
PART C - SPECIFIC TERMS
1. In this Service Schedule:
"Affiliate" means, with respect to either Microsoft Corporation or MRS, a legal entity that:
(i) owns or controls Microsoft Corporation or MRS, directly or indirectly; or
(ii) is owned or controlled, directly or indirectly, by Microsoft Corporation or MRS, excluding any legal entity organised as a joint venture between Microsoft Corporation or MRS and a third party; or
(iii) is directly or indirectly under common ownership or control with Microsoft Corporation or MRS.
"Documentation" means any online operating manuals and other materials which may be supplied by TelstraClear to the Customer from time to time, and relating to Envision;
"Envision" means TelstraClear's application service provider service that enables the Customer to use hosted Software through Internet technologies;
"Intellectual Property" has the meaning set out at clause 6 of this Service Schedule; "MRS" means Microsoft Regional Sales Corporation;
"Software" means the Microsoft Outlook Client 2000, Microsoft Outlook Web Access or intraNet software (as more particularly set out in Part A of this Service Schedule) selected by the Customer to be hosted by TelstraClear as part of Envision;
"User" means a user within the Customer who uses Envision.
2. Subject to the Customer complying with the conditions of this Service Schedule, TelstraClear will provide the Customer with a username and password to access Envision and the Software. The Customer is fully responsible for the safekeeping of its password and for all use or access of Envision and the Software by anyone using the Customer's password and their compliance with this Agreement.
3. TelstraClear may require the Customer to change its password at anytime. The Customer will contact TelstraClear immediately if the Customer suspects any unauthorised use or disclosure of its password. TelstraClear may, at its discretion, require the Customer to comply with TelstraClear's password security policy in place from time to time.
4. The Customer will not make any copies of the Software or the Intellectual Property.
5. The licence granted pursuant to this Agreement is personal to the Customer, is not-exclusive and is not transferable. The Customer may not sub-licence any of its rights under this Service Schedule, Envision and/or other software licensed by TelstraClear to the Customer.
6. The Software is licensed not sold. All copyright, patents, registered or unregistered designs, trade marks, trade secrets, logos, know-how, get up, confidential information or other intellectual property, whether protected or otherwise, which makes up Envision and the Software or is made available to the Customer through Envision or the Software or in connection with this Service Schedule, now and in the future ("Intellectual Property"), will at no time be the property of the Customer except as licensed to the Customer under this Service Schedule.
7. The Customer will not:
a) reverse engineer, decompile or disassemble, modify, translate or make any derivative works of any part of Envision or the Software;
b) remove any copyright, trade mark, patent or other proprietary notices from any Envision web site or the Software or otherwise breach any of TelstraClear's intellectual property rights or those of TelstraClear's suppliers;
c) rent, lease, lend, host products or service deliverables, or offer or provide Envision or the Software to any other person in any way;
d) attempt to bypass any security mechanism in place on TelstraClear's or any of TelstraClear's supplier's systems or use any of TelstraClear's or TelstraClear's suppliers systems or services to attempt to bypass any security mechanisms in place on any remote system. This includes, but is not limited to, running any password cracking software, or attempting to access a system which the Customer or any user authorised by the Customer or using the Customer's password knows or reasonably should know is not authorised for access in the manner or to the extent attempted; or
e) otherwise gain or attempt to gain unauthorised access to TelstraClear's systems or those of TelstraClear's suppliers, Envision, the Software or any of TelstraClear's customers systems, information or data.
8. The Customer will at its cost:
(a) effect and maintain security measures to prevent:
(i) persons, other than the Customer, from gaining access to, and/or using, Envision and/ or the Software;
(ii) any other interference with the provision of Envision; (such access, use or interference referred to in this Service Schedule as "Unauthorised Use"); and
(iii) any loss or damage arising from Unauthorised Use;
(b) notify TelstraClear as soon as practicable after it becomes aware of any Unauthorised Use and, subject to the Customer not being in default in ensuring security under this Service Schedule, at TelstraClear's cost, take any reasonable action which is reasonably necessary or which TelstraClear may reasonably require to prevent any further Unauthorised Use occurring and any loss or damage arising from any Unauthorised Use;
(c) only use Envision and the Software in accordance with the normal operating procedures set out in the Documentation or as otherwise reasonably directed by TelstraClear from time to time; and
(d) not gain, or attempt to gain unauthorised access to TelstraClear's systems or use Envision or the Software in a manner not contemplated or authorised by this Service Schedule.
9. The Customer is responsible for ensuring that it has the correct hardware and software configuration which is required to use Envision and the Software. TelstraClear will if requested by the Customer advise the Customer of current configuration requirements. The Customer is responsible for any PC-related problems, Internet connection issues or failure of the Customer's ISP.
10. TelstraClear may audit or track the Customer's use of Envision and/or the Software to ensure that the Customer is complying with its obligations under this Agreement.
11. The Customer acknowledges that Envision is provided from New Zealand and that the Customer is responsible for any access to or use of Envision outside New Zealand and compliance with any local laws. The Customer agrees to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which the Customer resides.
12. TelstraClear reserves the right, at its discretion, to change this Service Schedule. Any changes will be effective from the date on which they are posted on the Clearnet website or emailed to the Customer, or are otherwise changed in accordance with this Agreement. TelstraClear also reserves the right to change any part or all of Envision or the Software, or the configuration the Customer must have to use Envision or the Software. Any material changes will be notified to the Customer by posting them on the Envision web site or emailing them to the Customer, however, no notice will be required for immaterial changes. The Customer's continued use of Envision or the Software after a change made under this clause will be subject to this Agreement and will constitute conclusive acceptance of that change.
13. Without any exclusion or limitation and to the fullest extent permissible by law, the Customer agrees to indemnify and hold TelstraClear, and each of its officers, employees, partners, agents and suppliers harmless from and against any loss, expense, claim or demand (including any reasonable solicitor and own client costs) arising from or in relation to:
(a) any breach by the Customer of this Agreement,
(b) any act or omission for which the Customer is responsible at law;
(c) any information and data provided by the Customer;
(d) the Customer's use of Envision or the Software, or any infringement of the rights of any other person.
14. To the maximum extent permitted under applicable law, any conditions or warranties imposed or implied by law, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose with respect to Envision or the Software, and any conditions or warranties not made expressly in this Service Schedule, are hereby excluded. The following is without prejudice to any rights the Customer may have at law which cannot legally be excluded or restricted. The Customer acknowledges that no promise, representation, warranty
