Speedster limited general terms
1 APPLICATION OF THESE GENERAL TERMS
1.1 These General Terms set out the terms on which Speedster Limited (we, our or us), provides Services (as defined below) to its business and residential customers (you or yours).
1.2 Additional terms may apply to your use of some of our Services, as set out in the Service Order and the Service Description for the Service. The Service Descriptions for our various Services are available on our website: www.speedster.co.nz.
1.3 The Service Orders, the Service Descriptions and these General Terms together make up the Agreement.
1.4 In the event and to the extent of any inconsistency between two or more documents which form part of this Agreement, those documents shall, unless expressly stated otherwise, be interpreted in the following descending order of precedence (from high priority to low priority):
a the Service Orders;
b the Service Descriptions; and
c these General Terms.
1.5 By signing the Service Order or setting up an Account with us, you accept, and agree to be bound by the Agreement. If you do not agree with the Agreement, you are not authorised to access and use our Services, and you must immediately stop doing so.
2.1 By giving at least 14 days’ notice, we may change these General Terms or any Service Description from time to time. We will notify you of any change and the effective date of the change by email or by posting a notice on the Website.
2.2 In addition to clause 2.1, we reserve the right to urgently change these Terms if required by law or where necessary for security reasons, to prevent fraud or for technical reasons. We will notify you of the change as soon as practicable.
2.3 If the change has an adverse effect on you, you may terminate the Agreement on no less than 10 days’ notice, provided you give such notice within 60 days of the date we notify you of the change. If you do not terminate this Agreement in accordance with this clause, you are deemed to have accepted the changed General Terms or Service Description.
2.4 If you terminate the Agreement in accordance with clause 2.3 as a result of a change that has an adverse effect on you, you will not be required to pay any Early Termination Fee. In any other case, if you terminate during any minimum or fixed term, you must pay the applicable Early Termination Fee (if any).
2.5 These Terms were last updated on 15th April 2019 and are available on our Website.
3.1 Definitions: In the Agreement, the following terms have the stated meaning:
Acceptable Use Policy
the acceptable use policy available on our website.
the Service Orders, the Service Descriptions for the Services and these General Terms.
a person that acquires, or purports to acquire, the Services for the purposes of business, and includes any person that acquires Services we market as business-only Services.
all data, information and content (including Personal Information) owned, held, used or created by or on behalf of you that is stored using the Services.
means any equipment owned, operated or controlled by us that we provide to you for installation on your premises, excluding any equipment that you purchase from us and pay for.
Early Termination Fee
any early termination fee set out in the Service Order.
the fees set out on our Website or in the Service Descriptions, or that we have quoted to you in the Service Order, as updated from time to time in accordance with clause 8.4.
an event that is beyond the reasonable control of a party, excluding:
▲ an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
▲ a lack of funds for any reason.
this document entitled Speedster Limited General Terms.
Intellectual Property Rights
includes copyright and all worldwide rights conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
has the meaning given to it in the Telecommunications Act 2001.
includes being objectionable, defamatory, obscene, harassing, threatening, or unlawful in any way.
the payment terms set out in the Service Order or Service Description (if any).
any person who you authorise to access and use the Services on your behalf or using your account.
has the meaning given in the Privacy Act 1993.
the acceptable use policy available on our website.
means a person who acquires our Services for personal, domestic or household use.
descriptions of our Services available on our Website.
has the meaning given in clause 4.1c.
any services described in the Service Descriptions.
the date that you first access and use the Services.
the IT solutions, systems and networks (including software and hardware) used to provide the Services, including any third party solutions, systems and networks.
any user ID used to access your Account and/or the Services.
the Internet site at www.speedster.co.nz, or such other site notified by us.
a 12 month period starting on the Start Date or the anniversary of that date.
3.2 Interpretation: In the Agreement:
a clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
b words in the singular include the plural and vice versa;
c a reference to:
i a party to the Agreement includes that party’s permitted assigns;
ii a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
iii including and similar words do not imply any limit; and
iv a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them; and
d no term of the Agreement is to be construed against a party because the term was first proposed or drafted by that party.
4 PROVISION OF THE SERVICES
a If you require any of our Services, you may submit an order to us by way of:
i signing and returning to us a form titled Service Order;
ii submitting an online account sign-up form, Service Order or provisioning form available on our Website; or
iii such other means as is designated by us from time to time.
b Unless specified otherwise by us acceptance will take place on the earlier of us confirming acceptance by email, commencing supply of the Services, or taking any other action to fulfil the order such as setting up an account for you.
c Each order accepted by us in accordance with clause 4.1(b) (Service Order) forms part of, and is governed by, the Agreement. By submitting an order, you accept the terms of the Agreement. If you do not accept the Agreement, you are not authorised to access and use the Services.
4.2 General: We must use best efforts to provide the Services:
a in accordance with the Agreement and New Zealand law;
b exercising reasonable care, skill and diligence; and
c using suitably skilled, experienced and qualified personnel.
4.3 Non-exclusive: Our provision of the Services to you is non-exclusive. Nothing in the Agreement prevents the us from providing the Services to any other person.
a Not all Services are available to all customers or in all areas.
b We will use reasonable efforts to ensure the Services are available on a 24/7 basis in New Zealand. However, due to the nature of telecommunications services, we cannot promise that the Services will always be available or fully-functioning. It is possible that on occasion the Services may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.
c We will use reasonable efforts to restore any Service outages or faults as soon as possible. If there is a problem with the Services, please contact us at firstname.lastname@example.org.
d We are not liable or responsible for anything which occurs as a result of a failure to the systems or network infrastructure of the Network Operators we use to provide the Services.
5.1 CPE loan: Where we provide you with any CPE, this clause 5 will apply.
5.2 Conditions: You must:
a use the CPE solely in connection with the Services;
b not, except as expressly provided for in the Agreement:
i rent, sell, lease, sublicense, or otherwise transfer the CPE to any third party; or
ii modify or service the CPE;
c ensure the CPE is protected at all times from misuse, damage, destruction or any form of unauthorised use, copying or disclosure;
d maintain all proprietary notices on the CPE;
e not grant a security interest in the CPE;
f immediately notify us if the CPE is lost or stolen;
g if the CPE is damaged, faulty or breaks down, immediately:
i notify us; and
ii cease using the CPE and return the CPE to us.
5.3 Title: Legal and beneficial ownership of the CPE remains with us at all times.
5.4 Security interest: Where we provide you with CPE for a term of 1 year or more, we will have a security interest in the CPE for the purposes of the Personal Property Securities Act 1999.
a Risk in the CPE passes to you on delivery of the the CPE to you.
b Risk in the CPE passes back to us when the CPE has been returned to us.
5.6 Insurance: You must, during the term of the Agreement, and until the CPE has been returned to us:
a fully insure the CPE for full replacement value; and
b not allow anything to be done that might prejudice the insurance.
5.7 Returns: The CPE must be returned to us on or before the termination or expiry of the Agreement in the same order and condition as at the date we provide it to you (fair wear and tear excepted). If the CPE (or any part of it) is damaged, lost, stolen or otherwise not returned in accordance with this clause, we may charge the you for the CPE at the higher of:
a the purchase price at the Start Date; and
b then-current replacement value.
5.8 Inspection and repossession: Without limiting our rights at law, until the CPE is returned to the us, we are permitted to enter onto your premises at any reasonable time to:
a inspect, maintain, relocate or remove the CPE; and/or
b where you are in breach of the Agreement (including failing to pay any Fees when due), to repossess the CPE.
6 YOUR OBLIGATIONS
6.1 General use: You and your Permitted Users must use the Services in accordance with the Agreement solely for:
a your own personal or internal business purposes;
b not resell or make available the Services to any third party, or otherwise commercially exploit the Services; and
c lawful purposes (including complying with the Unsolicited Electronic Messaging Act 2007).
6.2 Access conditions: When accessing and using our Services, you and your Permitted Users must:
a not impersonate another person or misrepresent authorisation to act on behalf of others or us;
b correctly identify the sender of all electronic transmissions;
c not attempt to undermine the security or integrity of the Underlying Systems;
d not use, or misuse, the Services in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Services;
e not attempt to view, access or copy any material or data other than:
i that which you are authorised to access; and
ii to the extent necessary for you to use the Services in accordance with these Terms;
f neither use the Services in a manner, nor transmit or store any Content, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and
g comply with the Acceptable Use Policy.
6.3 Your information: You must provide true, current and complete information in your dealings with us (including when setting up an account), and must promptly update that information as required so that the information remains true, current and complete.
6.4 Account information: If you are given a User ID, you must keep your User ID secure and:
a not permit any other person to use your User ID, including not disclosing or providing it to any other person; and
b immediately notify us if you become aware of any disclosure or unauthorised use of your User ID, by sending an email to email@example.com.
6.5 Permitted Users. Subject to clauses 8.5 and 11.4:
a you are liable for all charges accrued using your account or User ID; and
b you indemnify us against all loss we suffer or incur as a direct or indirect result of your failure to comply with the Agreement, including any failure of a person who accesses and uses our Services by using your User ID.
8.1 Fees: You agree to pay the Fees for the Services provided by us.
8.2 Invoicing and payment:
a We will provide you with valid GST tax invoices on the dates set out in the Service Order, or if there are none, monthly in advance for the recurring Fees and monthly in arrears for variable Fees. We will send your invoice to your contact email address.
b If you are a Residential Customer, the Fees include GST.
c If you are a Business Customer, the Fees exclude GST (unless stated otherwise), which you must pay on taxable supplies under the Agreement.
d Unless otherwise agreed by us, all fees must be paid by direct debit. We will debit the Fees from your nominated account on the date set out in the invoices.
e We reserve the right to impose a credit limit on your account.
f Where we have agreed to accept payment by means other than by direct debit, you must pay the Fees:
i on the dates set out in the Service Order or Service Description, or if there are none, by the 20th of the month in which the date of invoice was issued (or if the invoice is issued after the 15th of day of a month, the 20th day of the following month); and
ii electronically in cleared funds without any set off or deduction.
8.3 Overdue amounts: If payment of any amount owed to us is not received by the due date, we may:
a charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by our primary trading bank as at the due date (or, if our primary trading bank ceases to quote that rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum; and/or
b recover all costs incurred in recovering overdue amounts and interest from you, including the actual fees charged by our lawyers and any debt collection agency.
a Except as otherwise set out in the Service Order, we may, by giving at least 30 days’ notice, increase the Fees from time to time for any of our Services. We will notify you of any Fee increase and the effective date of the Fee increase by emailing you at the email contact address that you have most recently supplied to us.
b if you do not wish to pay the increased Fees, you may terminate the Agreement on no less than 10 days’ notice, provided the notice is received by us before the effective date of the Fee increase. If you do not terminate the Agreement in accordance with this clause, you are deemed to have accepted the increased Fees.
c If we increase the Fees during any minimum or fixed term, and you terminate the Agreement in accordance with clause 8.4b, you will not be required to pay any Early Termination Fee.
8.5 Invoice disputes: You may withhold payment of an invoice or part of an invoice that you dispute in good faith. You must notify us of the dispute within 14 days of the receipt of the invoice. You must pay any undisputed portion of the disputed invoice by the due date set out in clause 8.2f. Any disputed invoice under this clause must be dealt with in accordance with clause 13.1.
9 INTELLECTUAL PROPERTY
9.1 Ownership: Title to, and all Intellectual Property Rights in, the Services, the Underlying System and the Website is and remains our (and our licensors) property. You must not dispute that ownership.
9.2 Content: Title to, and all Intellectual Property Rights, in Content is and remains your property. You grant us a worldwide, non-exclusive, fully paid up, transferable, irrevocable licence to use, store, copy, modify, make available and communicate the Content for any purpose in connection with the exercise of our rights and performance of our obligations in accordance with the Agreement.
9.3 Feedback: If you provide us with ideas, comments or suggestions relating to the Services (together feedback):
a all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by us; and
b we may use or disclose the feedback for any purpose.
10.1 Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement, which constitute binding obligations on the warranting party.
10.2 No implied warranties: To the maximum extent permitted by law:
a our warranties are limited to those set out in the Agreement, and all other conditions, guarantees or warranties whether expressed or implied by statute or otherwise (including any warranty under the Sale of Goods Act 1908) are expressly excluded and, to the extent that they cannot be excluded, liability for them will not exceed $5000 for any one event or a total of $10,000 in any Year; and
b we make no representation concerning the quality of the Services and do not promise that the Services will:
i meet your requirements or be suitable for a particular purpose; and
ii be secure, free of viruses or other harmful code, uninterrupted or error free.
10.3 Consumer Guarantees Act 1993:
a If you are a Residential Customer, nothing in the Agreement has the effect of contracting out of the Consumer Guarantees Act or any other consumer protection law that cannot be excluded.
b If you are a Business Customer, you agree that you are acquiring the Services, and accepting the Agreement, for the purpose of a business and no consumer protection legislation applies to the supply of the Services or the Agreement.
10.4 Limitation of remedies: Where legislation or rule of law implies into the Agreement a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Agreement. However, our liability for any breach of that condition or warranty is limited, at our option and to the extent permitted by law, to:
a supplying the Services again;
b paying the costs of having the Services supplied again; and/or
c refunding the Fees for the Services.
11.1 Our maximum liability: Subject to clause 10.3a, our maximum aggregate liability under or in connection with the Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will not exceed $5000 for any one event or a total of $10,000 in any Year. The cap in this clause 11.1 includes the cap set out in clause 10.2a.
11.2 Your maximum liability: Your liability to us under or in connection with the Agreement or relating to the Services, whether in contract, tort (including negligence), breach of statutory duty or otherwise, will not exceed $5000 for any one event or a total of $10,000 in any Year.
11.3 Unrecoverable loss: Subject to clause 10.3a, neither party is liable to the other under or in connection with the Agreement or the Services for any:
a loss of profit, revenue, savings, business, use, data (including Content) and/or goodwill; or
b consequential, indirect, incidental or special damage or loss of any kind.
11.4 Unlimited liability:
a Clauses 11.1 and 11.3 do not apply to limit our liability under or in connection with the Agreement for:
i personal injury or death; or
ii fraud or wilful misconduct.
b Clauses 11.2 and 11.3 do not apply to limit your liability:
i to pay the Fees;
ii under clause 6.5b; or
iii for those matters stated in clauses 11.4ai and 11.4aii.
11.5 No Network Operator liability: No Network Operator or other third party supplier of ours will be liable to you for loss or damage of any kind arising from your use of the Services. This clause creates a right and benefit that such Network Operators and suppliers can enforce as a defence to any claim.
11.6 No liability for other’s failure: Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its permitted users.
11.7 Mitigation: Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.
12 TERM, TERMINATION AND SUSPENSION
12.1 Duration: Subject to this clause 12, the Agreement:
a starts on the Start Date; and
b continues until we or you give 30 days’ notice that this Agreement will terminate on the expiry of that notice.
12.2 Termination of Agreement:
a Either party may, by notice to the other party, immediately terminate this Agreement and your right to access and use the Services if the other party:
i breaches any material provision of the Agreement and the breach is not:
▲ remedied within 10 days or the receipt of a notice from the first party requiring it to remedy the breach; or
▲ capable of being remedied; or
ii becomes insolvent, liquidated, bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed or becomes subject to any form of insolvency action of external administration, or ceases to continue business for any reason; or
iii is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.
12.3 Termination of Service Orders:
a Each Service Order will terminate:
i on expiry or termination of the Agreement under clauses 12.1 or 12.2 or
ii subject to clause 12.4, on either party giving to the other not less than 30 days’ prior written notice of termination; or
iii in accordance with any additional rights to terminate set out in the Service Order or relevant Service Description.
b Where a party has a right to terminate this agreement under clause 12.2 it may, at its discretion and to the extent practicable, instead of terminating the Agreement in full terminate the affected Service Order.
c Clause 12.5 applies, with all necessary changes, to termination of a Service Order.
12.4 Minimum/fixed term: Subject to clauses 2.4 and 8.4, if a Service Order or Service Description includes a minimum or fixed term, or if ou have otherwise agreed to a minimum or fixed term (including by way of accepting a minimum or fixed term variation or extension offer made to you by us), the earliest date either party may terminate the Agreement under clause 12.1b or the relevant Service Order under clause 12.2aii will be the expiry of the minimum or fixed term.
12.5 Consequences of termination or expiry:
a Termination or expiry of the Agreement does not affect either party’s rights and obligations accrued before that termination or expiry.
b On termination or expiry of the Agreement, you must pay all Fees for the Services provided prior to that termination or expiry.
12.6 Obligations continuing: Clauses which, by their nature, are intended to survive termination or expiry of the Agreement, including clauses 5.7, 5.8, 6.5b, 9, 10, 11, 12.5, 12.6, 13.4, 13.6 and 13.8 continue in force.
12.7 No compensation: Subject to clause 12.5a, no compensation is payable by us to you as a result of termination of the Agreement for whatever reason, and you will not be entitled to a refund of any Fees that have already been paid.
12.8 Suspension: Without limiting any other right or remedy available, we may restrict or suspend your access to our Services if we consider you, or a Permitted User, has:
a undermined, or attempted to undermine, the security or integrity of our Services or any Underlying Systems;
b used, or attempted to use, the Services for improper purposes or in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Services;
c transmitted or stored any Content that breaches or may breach the Agreement or any third party right (including Intellectual Property Rights and privacy rights), or that is, or may be, Objectionable, incorrect or misleading;
d failed to pay the Fees when due in accordance with clause 8.2; or
e otherwise materially breached the Agreement.
12.9 Notice: We will notify you if we restrict or suspend your access to any of our Services in accordance with clause 12.8.
13.1 Disputes: If you have a dispute with us or relating to the Services, please contact us at firstname.lastname@example.org.
13.2 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the Agreement to the extent caused by Force Majeure.
13.3 Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
13.4 Notices: If we need to contact you, we may do so by email or posting a notice on the Website. You agree that this satisfies all legal requirements in relation to written communications.
13.5 Severability: Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.
13.6 Entire agreement: The Agreement sets out everything agreed by the parties relating to the Services, and supersedes and cancels anything discussed, exchanged or agreed prior to the Start Date. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the Agreement that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Start Date.
13.7 Assignment: You may not assign, novate, subcontract or transfer any right or obligation under the Agreement without our prior written consent. You remain liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
13.8 Law: The Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with the Agreement.