INTERNET AND DATA SERVICES AGREEMENT
THIS INTERNET AND DATA SERVICES AGREEMENT ("Agreement") is between Enternet Online Limited, 6th Floor Harrington House Harrington Street, Tauranga ("EOL") and THE CUSTOMER, as defined on the reverse.
EOL is in the business of providing access to the Internet and other Internet or data related services including hardware (the "Services"). THE CUSTOMER wishes to retain EOL to provide it with access to the Services on the terms and conditions contained herein.
FEES AND SERVICES. THE CUSTOMER shall receive those services and shall pay EOL those fees specified on the reverse of this form plus any applicable taxes such as GST. Such Fees shall be paid by THE CUSTOMER monthly, in advance. Accounts are suspended automatically once an account is 30 days past the invoice date. EOL retains the right to vary or change the fees from time to time and shall give THE CUSTOMER 14 days written notice of any such variations or changes. If THE CUSTOMER disputes the whole or any portion of the amount claimed in an invoice submitted by EOL, THE CUSTOMER shall pay the portion of the amount stated in the invoice which is not in dispute and shall notify EOL in writing (within 7 days of receipt of the invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was invoiced, then THE CUSTOMER shall pay the amount finally resolved together with interest on that amount at a rate of two percent per month. THE CUSTOMER shall pay EOL interest on any amount due and not paid by THE CUSTOMER within the time required by this Agreement at a rate of interest of two percent per month.
HARDWARE EQUIPMENT. Title to the Equipment will not at any time pass to THE CUSTOMER until such time payment in full for the Equipment has been received by EOL. THE CUSTOMER will not attempt to sell, assign, transfer or otherwise dispose of (whether by security or otherwise) or encumber the Equipment in any way until such time they have title of the Equipment.
USE OF THE SERVICES. THE CUSTOMER agrees to comply with all directions from EOL pertaining to the access and use of the Services. THE CUSTOMER warrants that in accessing and using the Services it will only use software that it is legally entitled to use and that such use will not be a breach of copyright. THE CUSTOMER shall be responsible for the use and compatibility of all software not provided by EOL. THE CUSTOMER acknowledges that EOL does not and cannot in any way supervise, edit or control the content and form of any information or data accessed through the Services and EOL shall not be held responsible in any way for any content or information accessed by the Services. EOL disclaims all or any liability for any material on the Internet that THE CUSTOMER finds offensive, upsetting, defamatory, personally offensive and in any way unsuitable for people under the age of 18. THE CUSTOMER will not act on or through the Services so as to interfere with or disrupt Internet users, service providers, their computers, software or hardware. Such actions include, but are not limited to, circulation of any unsolicited publicity or advertising material, propagation of the computer worms and viruses, using the Services to make an unauthorised access of any other computer accessible via the Services, sending harassing, obscene, indecent, offensive or threatening electronic mail, forgery (or attempted forgery) of electronic mail messages and the placement, transmission or storage of any defamatory material on the Internet. THE CUSTOMER agrees to refrain from the bulk transmission of unsolicited electronic mail. THE CUSTOMER will not access, nor permit any other party to access, the Services for any purpose or activity of an illegal, fraudulent or defamatory nature. THE CUSTOMER will not reproduce, distribute, transmit, publish, copy, transfer or commercially exploit any information accessed through or received from the Services that would be an infringement of any copyright, patent, trade mark, design or other intellectual property right. THE CUSTOMER will prepare and maintain sufficient back up files and data storage capacity for THE CUSTOMER'S data, including electronic messages. EOL has no responsibility to provide training in the use of the Services pursuant to this Agreement.
WITHDRAWAL OF ACCESS. EOL reserves the right to immediately and without notice to THE CUSTOMER withdraw THE CUSTOMER'S access to the Services if THE CUSTOMER fails to comply with any provision of this Agreement concerning the payment of any fees, if this Agreement is terminated for any reason or if THE CUSTOMER misuses the Services or fails to comply with THE CUSTOMER'S obligations as to the use and access of the Services as specified in this Agreement.
ACCESS TO THE SERVICES. THE CUSTOMER is responsible for maintaining the secrecy and confidentiality of all identification and log in information required by THE CUSTOMER to access the Services. THE CUSTOMER agrees not to disclose to any other person, corporation, entity or organisation any identification or log in information, whether in use or not, nor any other confidential information relating to the Services or EOL, except as validly required by any law, court or regulatory body. THE CUSTOMER is liable for all fees resulting from use of the Services accessed through THE CUSTOMER'S identification or log in information, whether authorised by THE CUSTOMER or not. Disclosure or loss of identification or log in information that results in the incurring of fees or misuse of the Services is THE CUSTOMER'S responsibility and any such occurrences should be immediately communicated to EOL. A bill presented by EOL shall be deemed to be correct and prima facie evidence of all connection, access, usage and other fees contained therein.
INDEMNITY. THE CUSTOMER shall indemnify and save EOL harmless from and against any and all claims, liabilities, damages, costs or expenses, including, without limitation, legal and other fees and amounts paid in settlement, incurred or suffered by EOL arising out of any action or proceeding commenced or threatened by any third party in respect of or in any way relating, directly or indirectly, to the use of the Services by THE CUSTOMER or a breach by THE CUSTOMER of any of its obligations hereunder.
WARRANTY. EOL warrants that the Services will be provided hereunder installed in a good and workable manner and acknowledges that where the Services are supplied for THE CUSTOMER'S personal use EOL is bound by the provisions of the Consumer Guarantees Act 1993 (the "Act"). Except as is provided in that Act, EOL gives no warranty as to quality, acceptability, fitness or suitability for any purpose, similarity to sample, merchantability or otherwise, including any condition or warranty contained in the Sale of Goods Act 1908 and where the Services are supplied to THE CUSTOMER for business purposes (as that term is defined in the Act), the provisions of the Act do not apply to that supply of Services. EOL does not warrant that the Services will be uninterrupted, error-free or completely secure and shall not be responsible for any loss or damage suffered by THE CUSTOMER as a result thereof.
EXCLUSION OF DAMAGES. Notwithstanding anything else in the Agreement, EOL shall not be liable for any amount of direct, special, incidental, punitive, consequential or other indirect damages incurred by THE CUSTOMER in connection with the Services or this Agreement, whether based on lost revenue or otherwise, regardless of whether EOL was advised of such losses in advance.
TERM AND TERMINATION. The term of this Agreement shall be as defined in the Internet and Data Services Application on the reverse side commencing on the date hereof and shall be automatically renewed on a month to month period unless (i) terminated by either party upon thirty (30) days prior written notice to the other or (ii) otherwise terminated in accordance with this Agreement. Early termination of this Agreement by THE CUSTOMER will incur a penalty payment calculated as specified in the Internet and Data Services Application on the reverse side.
CONSEQUENCES OF TERMINATION. Upon the termination of this Agreement, EOL shall immediately cease providing the Services to THE CUSTOMER and THE CUSTOMER shall immediately pay all amounts due to EOL hereunder.
NOTICE. Any notice required by this Agreement or given in connection with it shall be in writing and shall be given to the appropriate party by personal delivery at their respective addresses as indicted above.
NO ASSIGNMENT. Neither this Agreement nor any interest in this Agreement may be assigned by THE CUSTOMER without prior written consent of EOL. Subject thereto, the Agreement shall enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
ENTIRE AGREEMENT. The Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and terminates and supersedes all prior understandings or agreements, whether oral or written, of the parties on the subject matter hereof. With the exception of the ESA where one has been entered into between THE CUSTOMER and EOL, there are no warranties, representations or agreements between the parties in connection herewith except those specifically set out herein. The execution of this Agreement has not been induced by, nor do the parties rely on or regard as material any representations not included in this Agreement except as applicable any term of the ESA. No modification, supplement or waiver of this Agreement shall be binding unless executed in writing by both parties.
TIME OF ESSENCE. Time shall be of the essence hereof.
FORCE MAJEURE. Neither party shall be in default of its obligations hereunder to the extent its performance is delayed or prevented by causes beyond its control, including but not limited to acts of God, earthquake, flood, embargo, riots, sabotage, utility or transmission disruption, failure or delay, fire or labour disputes.
PROPRIETARY RIGHTS. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall directly, or indirectly, confer any title in EOL property or in any modification thereof to THE CUSTOMER or anyone operating under THE CUSTOMER. THE CUSTOMER hereby acknowledges and agrees that it shall have no right, title or interest in or to any IP addresses assigned to THE CUSTOMER and EOL may change such number(s), upon giving advanced notice to THE CUSTOMER. EOL shall have no obligation to notify any other party of a change of IP address pursuant to this Section.
EOL hereby acknowledges and agrees that it shall have no right, title or interest in or to any data transmitted by THE CUSTOMER over or through EOL facilities.
GOVERNING LAW. This Agreement shall be constituted and enforced in accordance with the laws of New Zealand.
FAIR USE POLICY. The terms "Flat Rate" or "Data Without Hidden Charges" carry with them our "fair use" policy. Bandwidth allocated to our users is reviewed and adjusted as required to ensure optimum service levels are maintained, but at any time there is only a fixed amount of bandwidth available to all users. The aim of this Fair Use Policy is to ensure that the experience of the vast majority of our other Internet users is not compromised by the extreme and unreasonable usage of a few flat rate users. We reserve the right to ask you to transfer to a fixed data cap plan, or find a new provider if you frequently use significantly more data than the majority of the flat rate users and/or use your internet service in a way that negatively affects the experience of any of our other users. You are not permitted to operate any hosted services from our IP addresses. You are not permitted to on-sell our service to any other users, and are not permitted to use our service to backhaul WI-FI network services. It is important to us that all eligible customers are able to access our services and get the best possible experience. For this reason, and to ensure the provision of a quality service, a Fair Use Policy must apply to our network where your usage can affect that of other customers. We may ask you to transfer to a fixed data cap plan, or find a new service provider within 7 days after giving you notice under this Fair Use Policy where in our reasonable opinion your use of our services is excessive and/or unreasonable by materially exceeding estimated usage patterns over any month. If we have given you notice to either choose one of our fixed data cap plans, or find a new service provider to transfer your service to, please do so within 7 days. If you fail to comply with our request within this time frame we may without further notice, apply charges to your account for the excessive and/or unreasonable element of your use; change you to a fixed plan, suspend, modify or restrict your use of our services or withdraw your access to the services.