1. DEFINITIONS AND INTERPRETATION
1.1. In these Terms of Business, the following words have the following meanings:
“Business Day” means a day (other than a Saturday, Sunday or public holiday) on which registered banks are open for general business in Wellington, New Zealand.
“Business Hours” means 8am to 5pm during Business Days in New Zealand.
“Contract” means the supply of Products and/or Services from Layer3 to the Customer in accordance with these Terms of Business and any other terms of Layer3 relating specifically to that Product and/or Service being supplied.
“Customer” means the party purchasing the Products and/or Services and includes any person acting on behalf of and with the authority of that party and any of its authorised users,.
“GST” means goods and services tax pursuant to the Goods and Services Tax Act 1985.
“Intellectual Property Rights” means all intellectual property rights recognised by law (whether registered or not) including:
b) design, patent, trade mark, semiconductor or circuit layout rights;
c) trade, business, company or domain name;
d) trade secret;
e) moral right;
f) knowhow, inventions, processes, confidential information (whether in writing, verbal or recorded in any form); and
g) any other proprietary, licence or personal rights arising from intellectual activity in the business, industrial, scientific, information technology or artistic fields.
“Layer3? means Layer3 Limited or any of its employees, agents or duly authorised representatives and including all assigns and successors.
“Personnel” means the officers, employees, contractors (including subcontractors and their employees), professional advisers, representatives and agents of a person.
“Planned Maintenance” means maintenance carried out during standard maintenance windows as set by Layer3 from time to time.
“PPSA” means The Personal Property Securities Act 1999.
“Price” means the cost of the Products and/or Services payable by the Customer to Layer3 and includes all disbursements including charges Layer3 may pay to others on the Customer’s behalf.
“Products” means all goods including hardware, software, equipment or inventory, supplied to the Customer by Layer3.
“Services” means all services and advice provided by Layer3 to the Customer including the provision of installation services, remedial services, fault diagnosis services, cloud based services including software as a service, support and maintenance services and labour associated with the supply of Products and/or Services by Layer3 to the Customer.
“Site” means the website located at www.layer3.co.nz and any replacement or associated websites.
“Terms of Business” means the provisions set out below as changed or modified in accordance with clause 2.3.
“Unscheduled Maintenance” means the maintenance performed outside Business Hours and the Planned Maintenance windows.
1.2. References to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended, re-enacted or consolidated and to all statutory instruments made pursuant to it.
1.3. Words denoting the singular will include the plural and vice versa.
1.4. The words “in particular”, “include” and “including” will not be construed as terms of limitation.
1.5. References to currency shall be to New Zealand dollars unless otherwise specified.
1.6. Person includes a natural person, company, corporation or other entity.
2.1. These Terms of Business together with any additional terms relating to any specific Product or Service, form the basis of the Contract between Layer3 and the Customer for the provision of any Products and/or Services to the Customer.
2.2. The Customer agrees to comply with the terms of the Contract.
2.3. Layer3 may at its sole discretion, change, modify, add or remove any portion of these Terms of Business at any time. Any changes to the Terms of Business shall be effective as soon they are notified by publishing them on the Site.
2.4. It is the Customer’s responsibility to check the Terms of Business from time to time for any changes. The Customer’s continued use of the Services or purchase of the Products and/or Services following the notification of any changes, deems the Customer to have accepted the revised Terms of Business.
2.5. On occasion the Customer may be prompted to click “I Accept” in relation to these Terms of Business. If prompted and the Customer does not accept, it must not use the Services or purchase the Products and/or Services from Layer3.
3.1. The Customer authorises Layer3 to contract on its behalf either as principal or agent with third party providers for products and/or services that may form the whole or part of the Products or Services being supplied under this Contract.
3.2. Where Layer3 enters into a contract of the type referred to in clause 3.1 the terms of such contract shall form part of this Contract and the Customer agrees to pay any amounts due under any third party contract.
4.1. Where no price is quoted in writing to the Customer, the Products and/or Services shall be deemed to be sold at Layer3’s then current price charged for such Products and/or Services at the time of delivery of the said Products and/or Services to the Customer.
4.2. Unless otherwise agreed, quotes shall only be valid for 7 days.
4.3. All prices are exclusive of GST.
4.4. The Customer is responsible for payment of all taxes including GST and any other costs associated with the Product and/or Service including freight costs, data charges, Internet access, data roaming, data transmission charges and currency exchange.
4.5. Notwithstanding clauses 4.1 and 4.2:
a. at any time between the date of request and the date of delivery of the Products and/or Services, the price may be increased by the amount of any reasonable increase in the cost of supply of the Products and/or Services to Layer3; and
b. Layer3 is entitled to increase its price for any Products and/or Services upon 20 Business Days notice to the Customer being the earlier of publishing the price increase on the Site or sending written notice to the Customer.
a. for Products shall be made in full in cleared funds without deduction or set-off for any reason, on or before the date of delivery.
b. for Services shall be made in full in cleared funds without deduction or set-off for any reason, on the 20th day of the month following the date of the invoice.
(“the due date”).
5.2. Interest may be charged on any amount owing at the rate of 2% per month or part month from the due date to the date of payment.
5.3. Any expenses and costs incurred by Layer3 in the enforcement or attempted enforcement of any rights, powers or remedies contained in this Contract shall be paid by the Customer, including solicitor’s costs (on a solicitor-client basis) and debt collection agency fees.
5.4. Notwithstanding clause 5.1, Layer3 may require a deposit in advance at its sole discretion.
5.5. If payment is made by credit card, then Layer3 may recover the credit card fees or any other charges incurred.
5.6. Where any payment has not been made by the due date, Layer3 may withhold the supply of Products and/or Services not yet delivered at its sole discretion.
6. RISK AND DELIVERY
6.1. Risk in the Products shall pass to the Customer upon delivery to the Customer.
6.2. Delivery of Products shall be deemed complete when physical possession of the Products is given to the Customer being the earlier of:
a. directly to the Customer; or
b. to a carrier, courier, or other bailee for purposes of transmission to the Customer.
6.3. The time agreed for delivery shall not be an essential term of this Contract unless the Customer gives written notice to Layer3 making time of the essence and provided always that Layer3 accepts in writing that time shall be of the essence.
6.4. The Customer will ensure that Layer3 is provided with reasonable access to the delivery address together with adequate room for unloading. The Customer indemnifies Layer3 against all costs and liabilities Layer3 incurs with or arising out of the delivery or in unloading.
7. TITLE AND SECURITY
7.1. Subject to clause 8, title in any Products (other than software) supplied by Layer3 passes to the Customer only when the Customer has made payment in full for all Products and of all other sums due to Layer3 by the Customer on any account whatsoever.
7.2. The Customer hereby grants Layer3 a security interest pursuant to the PPSA over the Products for all monies owing by the Customer to Layer3 on any account whatsoever.The Customer will at Layer3’s request promptly execute any documents, provide all necessary information and do anything else required by Layer3 to ensure that the security interest constitutes a perfected security interest (as that term is defined in the PPSA). The Customer waives its right under the PPSA to receive a copy of any verification statement (as that term is defined in the PPSA).
7.3. The Customer agrees that Layer3?s rights in the Products (and proceeds of the same) continue in any goods with which the Products supplied become part of or are co-mingled with and to any moneys wherever held which are the proceeds of any sale of the Products (or their co-mingled good) prior to full payment being made in respect of the Products by the Customer to Layer3.
7.4. The Customer shall insure and keep insured the Products to the full price payable, against all risks until payment in full for the Products has been received by Layer3.
8.1. If the Customer receives software from Layer3 as part or all of the Products and/or Services supplied, such software shall be provided to the Customer under license, not sale.
8.3. The Customer is required to accept any update or upgrade to any software provided by Layer3.
8.4. Notwithstanding clause 8.2, unless Layer3 notifies the Customer in writing, any license to software ends immediately upon the expiry or termination of the Contract under which it was supplied.
9.1. Layer3 shall perform the Services agreed with the Customer:
a. in accordance with the Contract;
b. exercising professional standards of diligence, care and attention ;and
c. using Personnel of suitable skill, education and experience.
9.2. For any cloud based Services provided to the Customer:
a. The Customer shall be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Layer3’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the Internet.
b. The Customer acknowledges that in order to access and use the Services, its systems and data must meet the minimum technical requirements determined by Layer3 from time to time. Such minimum requirements shall be published on the Site or advised to the Customer.
c. The Customer acknowledges that the minimum technical requirements may need to be altered by Layer3 from time to time and that Layer3 may in its absolute discretion revise the minimum technical requirements in whole or in part. The Customer will be responsible for all costs associated with any necessary change to its own systems and/or data that become necessary to meet the minimum technical requirements.
d. Layer3 will provide notice on its Site of any amendments to its minimum technical requirements.
e. Layer3 shall use commercially reasonable endeavours to make the Services available to the Customer for the timeframes and term agreed in the Contract except for:
i. Planned Maintenance; and
ii. Unscheduled Maintenance, provided that where possible Layer3 has used reasonable endeavours to give the Customer at least 2 Business Hours notice in advance.
f. Layer3 will:
i. host and support the current version of any software provided as part of its Services;
ii. allow access to that software’s web interface from Customer terminals that meet the minimum technical requirements; and
iii. make and store daily back-ups of the applications and data on all servers comprising the processing environment for the Services.
g. Subject to clause 9.2(e), Layer3 will use all reasonable endeavours to ensure that the Services will be free of hosting service outages for at least 99% of each calendar day (being the period of 24 hours beginning at midnight).
10. LIABILITY AND WARRANTIES
10.1. The Consumer Guarantees Act 1993, the Fair Trading Act 1986 and other statutes may imply warranties or conditions or impose obligations upon Layer3 which cannot by law (or which can only to a limited extent by law) be excluded or modified. In respect of any such implied warranties, conditions or terms imposed on Layer3, Layer3?s liability shall, where it is allowed, be excluded or if not able to be excluded only apply to the minimum extent required by the relevant statute.
10.2. The guarantees contained in the Consumer Guarantees Act 1993 are excluded where the Customer acquires Products or Services from Layer3 for the purposes of a business in terms of section 43 of that Act.
10.3. Subject to clause 10.1:
a. Layer3 gives no warranty that the Products and/or Services will be fit for any particular purpose. The Customer acknowledges that it has performed its own investigation and made its own assessment of the applicability of the Products and/or Services for its own purposes.
b. Layer3 does not provide any guarantee and has no liability to the Customer in respect of the network connections and telecommunications links between the Customer and Layer3 enabling access to the Services.
c. Layer3 does not guarantee error free or uninterrupted use of the Products and/or Services. The Customer must immediately notify Layer3 of such intermittent faults. The Customer agrees to meet Layer3?s then applicable charges for examining, investigating or diagnosing intermittent faults (including travelling time or associated expenses), except where such charges are covered by a manufacturer’s warranty and subject to clause 10.1.
10.4. Except to the extent that the law prevents Layer3 from excluding liability, Layer3 shall not be liable for any loss, cost, expense, liability or damage of any kind whatsoever whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss cost, expense, liability or damage arises directly or indirectly from Products and/or Services provided by Layer3 to the Customer.
10.5. Under no circumstances will Layer3 be liable to the Customer in contract, tort (including negligence) or otherwise for loss (whether direct or indirect) of profits, business or anticipated savings or for any indirect or consequential loss whatsoever.
10.6. The Customer shall indemnify Layer3 against all claims and loss, cost, expense, liability or damage of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause, whether caused or arising as a result of the negligence of Layer3 or otherwise, which is brought by any person in connection with any matter, act, omission, or error by Layer3 or its Personnel in connection with the Products and/or Services.
10.7. To the extent that Layer3 is found liable for any reason for any loss, cost, expense, liability or damage incurred by the Customer arising from any breach of this Contract or for any other reason, such liability is limited at the Customer’s option to:
a. The costs of replacing the Products in respect of which the obligation has been breached with a product of equivalent specification;
b. The provision of the Services again; or
c. The price for those Products and/or Services paid by the Customer.
10.8. The rights of the Customer described in clause 10.7, only apply if:
a. the Products are returned or a claim is made in writing to Layer3 within 14 days of the Products and/or Services being provided;
b. the Customer supplies the date and number of any invoice relating to the Products and/or Services;
c. Layer3 is given a reasonable opportunity to inspect the Products and/or alleged issue arising from the Services;
d. the use of Products and/or Services by the Customer has been in accordance with the information, instructions and specifications supplied by Layer3; and
e. the use of Products and/or Services has only been for the purpose for which they were designed.
10.9. The Customer shall not have the rights described in clause 10.7 if any fault damage or defect in the Products and or arising from the Services:
a. is the result of alterations or modifications to the Products and/or Services and such alterations or modifications were not authorised in writing by Layer3;
b. is the result of the use of other hardware, software, equipment or products in combination with the Products and/or Services supplied by Layer3 and such use was not authorised in writing by Layer3; or
c. has been caused by power surges or user error.
10.10. If the Customer permits any unauthorised third person to examine, investigate, diagnose or repair any faults with the Products and/or arising from the Services without the prior written consent of Layer3. The Customer undertakes that it will be fully responsible for all Layer3?s costs of rectifying the Products and/or Services should any such unauthorised action(s) take place.
10.11. Where Products are supplied under a manufacturer’s warranty, the warranty is only to the extent and for the period specified in the manufacturer’s warranty. The warranty period is measured from the date of delivery.
10.12. Any claim under a manufacturer’s warranty shall only cover the repair or replacement costs as detailed in the manufacturer’s warranty. The Customer acknowledges that such warranty shall not cover any of Layer3?s labour costs or charges relating to the diagnosis of any faults or defects. The Customer shall pay the labour costs or charges incurred by Layer3 associated with the diagnosis of any faults or defects.
11. INTELLECTUAL PROPERTY RIGHTS
11.1. The Customer acknowledges that all the Intellectual Property Rights in the Products and/or Services and the Site is owned, controlled or licensed by or to Layer3. The Customer shall not in any way question or dispute the Intellectual Property Rights of Layer3 in the Products and/or Services.
11.2. Layer3 may from to time and at its discretion introduce modifications, enhancements or updates to the Products and/or Services or Site. Any modifications, enhancements or updates to the Products and/or Services or Site, whether carried out by Layer3 or any other person, shall remain controlled by, licenced to, or the sole and exclusive property of Layer3.
11.3. The copyright of all content of the Site including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and is owned by Layer3 and/or is the proprietary property of its suppliers, affiliates, or licensors.
11.4. The Customer agrees that it shall not itself or through any subsidiary, agent or third party copy, modify, duplicate, create derivative works, decompile, disassemble, reverse engineer, sell, lease, license, sub-license or otherwise deal with the Intellectual Property Rights of Layer3 in the Products, Services or Site, or any variations, modifications, copies, releases, versions or enhancements of the Products, Services or Site.
11.5. Trade marks owned by Layer3 including “Layer3” and its associated logo (whether registered or unregistered) may not be copied, imitated, or used, in whole or in part, without Layer3’s prior written permission.
11.6. The Customer agrees to indemnify Layer3 against all loss, damage, liabilities, costs and expenses which Layer3 may incur as a result of any breach of this clause 11.
12. CONFIDENTIAL INFORMATION
12.1. All information, data, drawings, specifications, documentation, software, procedures, source or object code which Layer3 makes available to the Customer relating to the Products and/or Services are proprietary and confidential to Layer3. The Customer shall not disclose it directly or indirectly to any third party without Layer3?s prior written consent.
12.2. The Customer agrees that it shall not itself or through any subsidiary, Personnel or third party have any software or other program written or developed for itself based upon any confidential information supplied to it by Layer3.
12.3. The Customer agrees to indemnify Layer3 against all loss, damage, liabilities, costs and expenses which Layer3 may incur as a result of any breach of this clause 12.
13. CANCELLATION OF PRODUCT ORDER
13.1. Once an order for Products has been accepted by Layer3, it can only be cancelled, varied or suspended (whether in whole or in part) upon the following terms and conditions.
a. if Layer3 agrees in writing to such cancellation, variation or suspension;
b. the Customer agrees to accept delivery of and pay or all Products held by Layer3 in respect of such order and all Products in transit to or subsequently delivered to Layer3 for such order; and
c. the Customer agrees to pay all costs, expenses and liabilities incurred by Layer3 in consequence of the cancellation, variation or suspension of the order.
14. DEFAULT AND TERMINATION
14.1. Either party (“the non defaulting party”) may immediately terminate this Contract by notice in writing to the other party (“the defaulting party”)if:
a. the defaulting party is in breach of any of its obligations under the Contract:
i. and fails to remedy such breach within 10 Business Days after being given written notice specifying the breach and requiring it to be remedied;
ii. that is unable or unlikely to be capable of remedy; or
iii. that is a material obligation including an obligation in relation to Intellectual Property Rights and confidential information;
b. the defaulting party becomes bankrupt or goes or is put into liquidation or has a receiver or statutory manager appointed of its assets or becomes insolvent, ceases to carry on its business or makes any composition or arrangement with its creditors.
14.2. Layer3 may immediately terminate this Contract by notice in writing to the Customer if the Customer fails to pay any part of any amount owing to Layer3 within 20 Business Days of that part of the fee becoming due (including the payment of interest).
14.3. A Contract may be terminated if a term enabling termination of a Contract is invoked and complied with.
14.4. The Customer acknowledges that any breach of this Contract by its Personnel shall be deemed to be a breach of this Contract by the Customer.
14.5. On termination or expiry of this Contract the Customer must immediately cease to use any:
a. Services and must immediately, upon request of Layer3, return any materials associated with the Customer’s use of the Services;
b. software licenced to it as part of the Products and Services and comply with Layer3’s direction regarding its return, disablement or destruction.
14.6. Termination or expiry of this Contract is without prejudice to any obligations or rights of either party arising prior to such termination or expiry.
15. FORCE MAJEURE
15.1. Layer3 shall not be liable for delay or failure to perform any of its obligations under this Contract if the cause of the delay or failure is beyond Layer3’s reasonable control.
16. MAINTENANCE & SUPPORT
16.1. These Terms of Business relate only to the supply of Products and/or Services. In the event that the Customer wishes to purchase any maintenance or support services for the Products and/or Services, the Customer agrees to enter into an exclusive and additional maintenance and support agreement with Layer3.
16.2. In the absence of any maintenance and support agreement, If Layer3 agrees to perform any maintenance and support services for the Customer, a minimum charge of one hour applies to all onsite service calls which is inclusive of all travel time to and from site. A minimum charge of 15 minutes applies to remote or telephone support. Where service and/or support work is required outside Business Hours, Layer3 will charge a surcharge per hour over and above the normal hourly charge for such services. Unless specifically agreed otherwise, a call out fee will also apply. Layer3 may vary its charge out rates at any time at its discretion.
17. CUSTOMER REQUIREMENTS
17.1. The Customer shall:
a. provide Layer3 with:
i. all necessary co-operation; and
ii. all necessary access to such information as may be required by Layer3;
for the performance of the Contract.
b. carry out all Customer responsibilities set out in this Agreement in a timely and efficient manner;
17.2. The Customer acknowledges and agrees that it will:
a. initiate and maintain effective systems to back-up all information and data inputted to the Customer’s computer systems (including the Products and/or Services); and
b. install and/or maintain appropriate security measures (including software protection) to protect the Customer’s computer systems (including the Products and/or Services) from security breaches, bugs or computer viruses.
17.3. Under no circumstances will Layer3 be liable in contract, tort or any other principle of legal liability, or to compensate the Customer for any loss, injury, or damage whatsoever (including but without limitation consequential loss or damage, loss of profit, business, revenue, good will or anticipated savings) arising directly or indirectly from any failure by the Customer to:
a. back up such information and inputted data as referred to in clause 17.2.(a) (including any such loss, injury or damage to back-up copies); and/or
b. maintain appropriate security measures as provided in clause 17.2(b).
18.1. Any notice or other communication (“notices”) given under this Contract must be in writing and must be served in the manner described in this Contract. In the absence of any manner specified for the provision of notice, the following shall apply:
a. It may be served personally or sent to any of the relevant party’s communication points communicated to the other party in writing.
b. Notices are deemed served at the following times:
i. when given personally, upon delivery;
ii. when sent by post or document exchange within New Zealand, 3 Business Days after posting;
iii. when sent airmail outside New Zealand, 5 Business Days after posting;
iv. when sent by fax or email upon receipt of the correct answerback or receipt code.
18.2. Any notice which has been served on a Saturday, Sunday or public holiday is deemed to be served on the first Business Day after that day.
18.3. Time is of the essence.
19. UNSOLICITED ELECTRONIC MESSAGES ACT 2007
19.1. The Customer consents to receiving email, instant messaging, SMS and MMS (text and image-based mobile phone messaging) of a commercial nature.
20. COLLECTION AND USE OF INFORMATION
20.2. The Customer acknowledges and agrees that Layer3 may access, collect, retain, use and disclose information about the Customer, including the content of the Customer’s communications, in order to:
a. assess the Customer’s credit worthiness;
b. enforce any rights under the Contract;
c. comply with the law or respond to lawful requests or legal process;
d. protect the rights or property of Layer3 or its customers, including the enforcement of Layer3’s agreements or policies governing the Customers use of the Services;
e. act on a good faith belief that such access or disclosure is necessary to protect the personal safety of Layer3’, its Personnel, customers, or the public; or
f. market any Products and/or Services to the Customer or any other party.
20.3. Where the Customer is a natural person the authorities under clause are authorities or consents for the purposes of the Privacy Act 1993.
21.1. Failure by Layer3 to enforce any of the terms and conditions contained in this Contract shall not be deemed to be a waiver of any of the rights or obligations Layer3 has under this Contract.
21.2. If any provision of this Contract is found to be invalid, void or illegal or unenforceable this Contract will be read as if such provision had not been inserted and the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.3. The Customer shall not assign all or any of its rights or obligations under this Contract without the written consent of Layer3. Layer3 may assign, transfer, or otherwise dispose of its rights and obligations under this Contract, in whole or in part, at any time without notice to the Customer.
21.4. Where these Terms of Business conflict with an order or instructions from the Customer, these Terms of Business shall prevail unless otherwise agreed by Layer3 in writing.
21.5. If required by Layer3 the Customer will store Products and/or Services supplied by Layer3 in a way that enables them to be identified as having been supplied by Layer3.
21.6. Nothing in this Contract constitutes the parties as partners, joint venturers or as agents for each other (unless otherwise expressly provided for in this Contract), or gives to any party the rights, or subjects any party to any of the liabilities, of a partner, joint venturer or agent. No party has any authority to bind the other or act on its behalf except to the extent expressly provided for in this Contract.
21.7. This Agreement is governed by the laws of New Zealand and the parties agree to submit to the non-exclusive jurisdiction of the Courts of New Zealand.
21.8. These Terms of Business are intended to operate in tandem with any other terms produced by Layer3 relating to a specific Product and/or Service. However, in the event of any conflict between the Terms of Business and such other terms, the terms relating to the specific Product and/or Service shall prevail.
21.9. This Contract constitutes the entire agreement between the parties relating to its subject matter and replaces all prior agreements or undertakings between them. Each party confirms that on entering into this Contract it has not relied upon any statement, warranty or other representation made or information supplied by or on behalf of the other party.
21.10. The provisions of clauses 5 (Payment), 7 (Title and Security), 10 (Liability and Warranties), 11 (Intellectual Property Rights), 12 (Confidential Information), 14 (Default and Termination), 18 (Notices), 21 (General) and any other provision which by its nature is intended to survive the termination or expiration of this Contract will survive the termination or expiration of this Contract.
1. DEFINITIONS AND INTERPRETATION