These are the standard terms and conditions for the supply of KNOSSOS NETWORKS LIMITED (1118433) (“OnNetworks”) Products & Services (Consulting, domain registration, ISP, telecommunications, website hosting & email hosting) and any other services that may be offered from time to time by OnNetworks. These terms and conditions apply to you as a user of the Services (“Customer” or “you” or “your”). Please read these terms and conditions carefully.
1. Term & Amendment Procedure
1.1 These are the terms upon which we agree to provide the Services to you. In addition to these terms, you must also comply with;
(a) Any specific Policies for products or services you acquire;
(b) Terms and Conditions which apply to Services you acquire;
(c) Our Acceptable Use Policy (“AUP”) http://www.on.net.nz/terms/acceptable-use-policy ; and
1.2 We may vary any of the policies or terms referred to above, the amount we charge for any Service (excluding Services supplied under a fixed contract period), or the terms of the operation of any Service at any time by general notice on a page of the Internet referred to on the home page of the OnNetworks Website.
1.3 The changes will become effective upon publication of the notice. Where we vary the prices for Services you are receiving (excluding Services supplied under a fixed contract period), we will give at least 30 days notice of the change by the same means and the new prices will apply at the end of that period. If you use the Services after publication of any changes, your use will constitute an acceptance of the amended terms and prices.
1.4 These terms constitute the agreement in its entirety and supersede prior agreements (“Agreement”).To the extent any inconsistency occurs between a term of this Agreement and any Terms and Conditions or Policies referred to in clause 1.1, those Terms and Conditions or Policies shall have priority.
1.5 Term, the supply of Services commences from date the Services are made available for use by the Customer, and continue in effect the agreed minimum term (as specified in the product terms for each service or specific agreement) and thereafter until terminated by the expiry of 30 days written notice given by either party to the other party in accordance with Section 6 of these terms & conditions.
2.1 You must ensure that all details and information you give OnNetworks is accurate, complete and current at all times. We will use those details to notify you of anything which affects the Services and we do not take any responsibility for any loss, damages or expenses you incur if we have been unable to contact you because you have provided inaccurate or incomplete details, or you have not kept these details up-to-date.
2.2 You shall at all times keep secure any passwords and log-in details used with the Services. You agree that OnNetworks cannot and does not know whether you have given access (whether knowingly or not) to your account or to the Services to any other person. You therefore agree that you are responsible for when, how and by whom your account and the Services are used.
2.3 You are solely responsible for any of your data and content (whether supplied by you or third parties) and for any other files (including, without limitation, email files) residing on the Services. You are responsible for dealing with persons who access your data and content and must not refer complaints or inquiries in relation to such data to us.
2.4 You agree that you are solely responsible for the back-up of your content and any other files (including, without limitation, email files) unless otherwise agreed with OnNetworks.
2.5 OnNetworks or its suppliers may be required to perform maintenance from time to time, including but not limited to our network or servers. We will attempt to perform all scheduled maintenance at times which we believe will affect the fewest customers. We will attempt to provide you with notice of any maintenance downtime, except when circumstances beyond our control prevent either OnNetworks or its supplier from doing so.
3. Your Warranties & Indemnities
3.1 You warrant that:
(a) You are an identifiable individual over the age of 18 years of age, or, a legally constituted organization;
(b) If you are not the Customer, you have the power and authority to enter into this agreement on behalf of the Customer and will indemnify us for any breach of this agreement by the Customer;
(c) You will conduct such tests and computer virus scanning as may be necessary to ensure that any data uploaded by you to the Services does not contain any computer virus and will not in any way, corrupt the data or systems of any person;
(d) You have not entered into this Agreement or obtained any Services on the basis of, or in reliance on, any statement or representation (whether made orally or in writing and regardless of the medium used) made by OnNetworks or its suppliers which has not been stated expressly in this Agreement, or in any descriptions or specifications contained in any other document, including any catalogues or publicity material which we have produced.
3.2 You will indemnify and defend OnNetworks, all directors, officers, employees, and agents of OnNetworks (each an “Indemnified Party”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable legal fees) incurred by any Indemnified Party arising out of, or relating to, Your Products and Services (if applicable) and/or the use of the Services by you, including the implementation of the AUP by OnNetworks, any action taken by OnNetworks in accordance with the AUP, or, any breach or violation of the AUP. Such claims shall include, but shall not be limited to, claims based upon trademark, service mark, trade name, copyright and patent infringement, trademark dilution, tortious interference with contract or prospective business relations, unfair competition, defamation or injury to reputation, or other injuries or damage to business.
In Addition you indemnify us against all costs, expenses, loss or liability that we may suffer resulting from:
(b) Your use or misuse of the Service;
(c) The use or misuse of the Service by any person using your account; and
(d) Publication of defamatory, offensive or otherwise unlawful material on any web site forming part of your service.
3.3 If your use of our Services involves storage, processing or transmission of or access to any credit cardholder data, you warrant that the tools, programmes, processes and technologies you use to do so comply with the Payment Card Industry Data Security Standard (“PCI Standard”) which is available at https://www.pcisecuritystandards.org. If you breach this warranty, OnNetworks may terminate this agreement immediately upon written notice to you, and without prejudice to any other rights we may have under this agreement or at law.
4. Our Disclaimer & Warranties
4.1 OnNetworks will endeavour to provide the Services with due care and skill, however we do not guarantee or represent any Services provided will:
(a) Be uninterrupted or error free;
(b) Meet your requirements, other than as expressly set out in this agreement;
(c) Be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorized access to the services or systems of OnNetworks.
(d) make any warranty concerning the results that may be obtained from the use of the Services or as to the accuracy, reliability or content of any information services or merchandise contained in or provided through the Services.
4.2 To the extent permitted by law, neither OnNetworks, nor any employees, affiliates, agents, contractors, suppliers, third-party information providers, merchants, licensors nor the like (each a “Relevant Party”) of OnNetworks, makes any warranties of any kind, either expressed or implied, statutory or otherwise, relating in any way to the subject matter of this agreement, including, but not limited to, warranties of merchantability or fitness for a particular purpose, or non-infringement for the Services or any equipment provided, and all such warranties are hereby excluded.
4.3 All conditions and warranties, which may be implied by law into this agreement, are excluded except to the extent that it would be unlawful to do so. The above limitations and exclusions do not limit any rights a consumer may have under the Consumer Guarantees Act, except where goods or services are required for the purposes of a business, in which case the guarantees under the Consumer Guarantees Act 1993 shall not apply.
4.4 Except as expressly provided to the contrary in this Agreement, we exclude all liability for indirect and consequential loss or damage of any kind, loss or corruption of data, loss of revenue, loss of profit, failure to realize expected profits or savings and any other commercial or economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Agreement and/or its subject matter.
4.5 Other than liability under the Consumer Guarantees Act 1993, our total liability for loss or damage of any kind not excluded by 4.4, however caused is limited to the amount of the fees paid by you to OnNetworks for the Service in the month immediately prior to the event of liability.
5. Billing & Payments
5.1 You must pay all Service charges, and other amounts incurred by you or any designated users or incurred as a result of any use of your account (whether authorized or not), in accordance with the billing option selected and in advance. All Customers are required to make payments by way of a direct debit from their bank account. Customers will be provided with notice of the impending automatic debit or credit deduction. Excess call, traffic and/or storage charges will be invoiced monthly in arrears.
5.2 If you have elected to manage your own services, or have appointed an Approved OnNetworks Partner to manage your services that does not supply billing services to you. An “Approved OnNetworks Reseller” is an organisation which provides services to a customer upon the terms of an Approved OnNetworks Partner Contract with OnNetworks.
5.3 Payment, the full sum of any invoice is due within 20 days of the date shown on the invoice.
5.4 You agree if payment is overdue OnNetworks may, at its discretion;
(a) Suspend or restrict access to the Services until the full overdue amount is paid.
(b) Charge the customer 15% per annum interest on the overdue amount, until the date the full overdue amount including interest is paid.
(c) Charge the Customer any costs incurred by the OnNetworks in trying to recover the overdue amount.
5.5 You authorise us to obtain from and give to credit reporting agencies and other credit providers certain information about you so that we may manage your account with us. This information may include personal details such as your name, address, date of birth, company details and address, credit history and creditworthiness, credit standing with us and credit capacity. We reserve the right to refuse your application for, monitor ongoing usage of, or restrict your access to the Services on the basis of our assessment of credit information relating to you. You are entitled to see and correct any credit information we hold about you. You also authorise us to exchange information about you and your account with us to our suppliers, agents and contractors, and use that information for account management and business planning.
5.6 All fees are non-refundable.
6. Suspension & Termination
6.1 We may or suspend or terminate a Service if you fail to comply with any provision of this Agreement (including failure to pay fees due), or do, or allow to be done, anything which in our reasonable opinion may have the effect of jeopardising the operation of the Service on 30 days written notice.
6.2 You may cancel or terminate a Service by providing written notice to us, however, you acknowledge that:
(a) You will not be entitled to a refund of any fees paid in advance; and
(b) If you have a fixed contract period Service, you will be liable to OnNetworks for any unpaid portion of that Service for the remainder of the minimum term.
(c) you must pay all outstanding charges (including, without limitation, power, data transfer bandwidth over-usage charges and/or disk space over-usage charges) to OnNetworks immediately.
6.3 You agree that the cancellation of a Service under clause 6.2 or deletion of a Service under clause 6.5 will not result in the cancellation of any other Services you are receiving which are reliant upon and applicable to the Service. You will continue to be billed for these Services.
6.4 We may terminate this Agreement with you and cease providing Services (other than Services for a fixed contract period) for any reason, on 30 days written notice to you. With respect to Services for a fixed contract period, the notice will not expire before the end of the fixed contract period.
6.5 OnNetworks reserves the right to refuse to supply Services to a Potential Customer who has previously had an account with OnNetworks which was either terminated for breach, or has any unpaid fees remaining on it. In this clause, “Potential Customer” includes:
(a) (if the Potential Customer is a corporation) its Related Company (as that phrase is defined in the Companies Act 1993); and
(b) (if the Potential Customer is an individual) any corporation in which the potential customer was at the relevant time an officer or shareholder, or a Relative of a shareholder (as that phrase is defined in the Companies Act 1993).
6.6 If we become aware that you have failed to comply with any provision of the AUP in relation to any Services, or have done, or allowed to be done, anything which in our opinion may have the effect of jeopardising the operation of the Services, in addition to any other rights of OnNetworks under this Agreement (including, for the avoidance of doubt, under the AUP), we may immediately take corrective action, including suspension of any and all Services or termination of this Agreement and your Services, immediately, by written notice to you. In the event that any such corrective action due to a violation of the AUP occurs, you will not be entitled to a refund of any pre-paid fees.
6.7 In addition to any other rights under this agreement, you agree that OnNetworks may without notice to you remove, amend or alter your data upon being made aware of:
(a) any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory, offensive or in breach of a third party’s rights;
(b) for Australian customers, if directed to do so by the Australian Broadcasting Authority under a “take down notice”, in accordance with the Broadcasting Services Amendment (Online Services) Act 1999 (as amended or replaced from time to time) if we determine (acting reasonably) that such Act applies to you; or
(c) an outside party or outside device disrupting or attempting to disrupt the Services.
6.8 Where OnNetworks supplies a Service to you through a Supplier, OnNetworks may terminate and replace such Supplier at any time without notice to you. OnNetworks will, however, endeavour to replace such Supplier:
(a) with no or minimal disruption to the supply of the Services; and
(b) on substantially the same terms as are set out in this agreement.
6.9 Where OnNetworks is unable to comply with clause 6.8 (a), (b) you may terminate your agreement with OnNetworks and cease obtaining any Service/s from OnNetworks within 30 days’ of being notified of the new terms on which OnNetworks intends to supply the relevant Service/s to you. Where you terminate your agreement OnNetworks under this clause 6.10 you may do so without penalty.
6.10 On termination OnNetworks may delete all of your data from any storage media.
7. Limitation of Liability
7.1 You agree that OnNetworks shall not be liable for any indirect, incidental, special or consequential damages, or loss of profits, revenue, data or use, suffered by you or any third party, whether in an action in contract, tort or strict liability or other legal theory, even if OnNetworks (as the case may be) has been advised of the possibility of such damages.
7.2 Subject to clause 11, you further agree that the aggregate liability of OnNetworks for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) shall not exceed the actual dollar amount paid by you for the Service which gave rise to such damages, losses and causes of actions during the 12-month period prior to the date the damage or loss occurred or the cause of action arose.
7.3 You agree that where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, the liability of OnNetworks for any breach of the term will, if permitted by that statute, be limited, at our option, to the re-supply of the services again; or payment of the cost of having the services supplied again.
8. Intellectual Property
8.1 You acknowledge that all right, title and interest in any and all technology, including the software that is part of or provided with the Services and any trademarks or service marks of OnNetworks (“Our, OnNetworks”) are vested in OnNetworks and/or the licensors of OnNetworks.
8.2 Unless otherwise specifically provided in this agreement, you agree that you shall have no right, title, claims or interest in or to Our Intellectual Property.
8.3 You may not copy, modify or translate any of Our Intellectual Property or related documentation, or decompile, disassemble or reverse engineer any of Our Intellectual Property, to use it other than in connection with the Services, or grant any other person or entity the right to do so.
8.4 Unless otherwise specifically permitted by this agreement, you are not authorised to distribute or to authorise others to distribute any of Our Intellectual Property in any manner without the prior written consent of OnNetworks; provided, however, that nothing in this clause 9.4 shall preclude you from using Our Intellectual Property as incorporated in the Services. This clause 9.4 shall not operate to extinguish, restrict, vary, waive or affect in any manner whatsoever any right, title or interest which you may now have or hereafter acquire in, or in relation to, the third-party software that is part of or provided with the Services solely to the extent such third-party licensors publicly provide such rights, title or interest in the third-party software to you.
9. Confidential Information
9.1 You acknowledge that, in the course of the performance of this agreement, you may have access to customer information and communications, including proprietary information claimed to be unique, secret, or confidential, and which constitutes the exclusive property and trade secrets of OnNetworks (“Confidential Information”). You agree to maintain the confidentiality of the Confidential Information and to use the Confidential Information only to the extent necessary for legitimate business uses in connection with this agreement. Upon request of OnNetworks or on termination or expiration of this agreement, you shall return the Confidential Information of OnNetworks then in your possession to OnNetworks. Nothing in this agreement shall prohibit or limit your use of information which;
(a) is now, or hereafter becomes, publicly known or available through lawful means;
(b) is rightfully in your possession, as evidenced by your records;
(c) is disclosed to you without confidential or proprietary restriction by a third party who rightfully possesses and rightfully discloses the information;
(d) is independently developed by you without any breach of this agreement;
(e) is the subject of a written permission to disclose provided by OnNetworks; or
(f) is required by law to be disclosed.
10. Force Majeure
OnNetworks shall not be liable for failure or delay in performing its obligations under this agreement if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services.
11.1 Unless otherwise agreed in writing, these Standard Terms and Conditions contain all the terms of our relationship (other than those applicable Terms and Conditions or Policies referenced in clause 1.1) and continue to apply no matter where you are located or where you reside at the time any of the Services are provided, and shall continue to apply until these Standard Terms and Conditions are either cancelled or terminated, except as otherwise stated in these Standard Terms and Conditions.
11.2 OnNetworks may transfer its rights and obligations under these Standard Terms and Conditions to any third party upon prior written notice to you.
11.3 These Standard Terms and Conditions shall be governed by New Zealand Law and the Courts of New Zealand shall have exclusive jurisdiction to hear and determine any dispute arising in relation to these Standard Terms and Conditions.
11.4 If a provision of these terms is illegal, void or unenforceable in any relevant jurisdiction, the legality, validity or enforceability of the remainder of these terms will not be affected and these terms will be read as if the relevant part had been deleted in that jurisdiction only.
11.5 To the extent permitted, the parties agree that:
(a) where you or any party for whom you are acting as agent supplies incorrect information regarding a Service, and OnNetworks incurs costs in any matter concerning that Service, OnNetworks may recover those costs from you.
(b) any dispute or claim you may have, arising out of or in connection with these Standard Terms and Conditions, must be brought within 60 days from the date on which the event giving rise to the dispute or claim occurred.
11.6 The cancellation or termination of these Standard Terms and Conditions will not affect any rights or obligations that have arisen prior to such cancellation or termination of these Standard Terms and Conditions, and which by their nature survive (or should survive) the cancellation or termination, including, without limitation, any warranties, indemnities and limitations of liability provisions.