The below sets out the Solarix Networks Limited terms of Sale.
In this Agreement, unless the context requires otherwise, words beginning with capital letters must be interpreted by reference to meaning of those words as given in this Agreement and:
|Agreement||means this agreement, the Schedules, the Contract Notes, these terms and conditions and all documents agreed by both parties as forming part of it;|
|Commencement date||means when the Services are ready for service [defined as CPE being installed and able to be pinged].|
|Confidential Information||means all information and other material relating to the disclosing party’s business, employees and customers:
but excluding everything which;
|Contract Note||means an order for Services issued by CUSTOMER and agreed to by SOLARIX substantially in the form set out in Schedule 1;|
|Fees||means the charges set out in this Agreement and/or a Contract Note, plus GST and any other payable Local, Regional or National Tax, Levy or other, which are payable by CUSTOMER to SOLARIX for the Services;|
|GST||means goods and services tax payable under the Goods and Services Tax Act 1985;|
|Intellectual Property||includes (without limitation) any right to, and any interest in, any patent, design, trade mark, trade name and all goodwill rights associated with such works, copyright, trade secrets and any other proprietary right or form of intellectual property (protectable by registration or not) in respect of any know-how, technology, concept, idea, data, component, tool, and object codes), specification, formula, drawing, document, program, design, system, process, logo, mark, style or other thing of similar nature, conceived, used, developed or produced by any person, whether in relation to the Services or otherwise;|
|Internet||means the world wide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol|
|Network||means the network and network components owned by SOLARIX and does not include any of CUSTOMER’s equipment or any third party network or equipment;|
|CUSTOMER||Means CUSTOMER and its permitted assigns and successors;|
|CUSTOMER Contact Person||means the CUSTOMER’ staff member identified on the front page who has the overall responsibility for CUSTOMER’ business relationship with SOLARIX.|
|CUSTOMER’ Intellectual Property||means:
|SOLARIX||means SOLARIX NETWORKS LIMITED, its assigns and / or successors;|
|SOLARIX Contact Person||means the SOLARIX staff member identified on the front page who is responsible for the overall CUSTOMER’s business relationship.|
|SOLARIX’s Intellectual Property||means all Intellectual Property other than CUSTOMER’s Intellectual Property that is owned or developed by SOLARIX independently of this Agreement without reference to CUSTOMER’s Intellectual Property or Confidential Information;|
|Services||means the services as described in a Contract Note;|
|Service Levels||means those levels of Services covered by the Services provided, in accordance with Schedule 1|
|Service Request||means a request for Services to SOLARIX by CUSTOMER in the form of a draft Contract Note;|
|Third Party Materials||includes all software, hardware and equipment supplied by any person other than CUSTOMER or SOLARIX;
Services means the services as described in a Contract Note;
|Third Party Intellectual Property||means all Intellectual Property rights in the Third Party Materials;|
|Working Day||means any day of the week except Saturday, Sunday or a Public Holiday in Auckland, New Zealand, unless otherwise specified;|
2 CONSTRUCTION AND INTERPRETATION
In the construction of this Agreement, unless the context otherwise requires:
Currency: references to monetary amounts are to New Zealand currency;
Dates and Times: all periods of time include the day on which the period commences and also the day on which the period ends. Unless specifically stated otherwise, time will not be of the essence for any dates and times expressed in this Agreement. Any date which is not a Working Day, upon or by which anything is due to be done by any party, will be deemed to be a reference to the next Working Day;
Headings: headings are inserted for ease of reference only and do not affect the interpretation of this Agreement.
Including: means including, without limitation to the generality of the surrounding words;
Negative Obligation: any obligation not to do something will be deemed to include an obligation not to suffer, permit or cause that thing to be done.
Person: includes any individual natural person, company, corporation, partnership, joint venture, association (whether corporate or unincorporated), trust, organisation, government department, Minister of the Crown, state or agency of a state (in each case, whether or not having separate legal personality), and includes a person’s executors, administrators, successors and assigns;
Singular and Plural/Genders/Enactments:
- the singular includes the plural and vice versa;
- words importing one gender will import all other genders; and
- a reference to an enactment is a reference to that enactment as amended, or to any enactment that has been substituted for that enactment;
Tax: includes any present or future tax, levy, impost, duty, rate, charge, fee, deduction or withholding imposed, assessed or levied by any governmental agency (whether national or local), and any interest, penalties, fines, costs, charges and other liabilities arising from or payable in respect of these things;
Where there is any inconsistency between the parts of this Agreement, then the following priority will apply in descending order:
- Contract Note;
- Schedules to a Contract note (if any);
- body of this Agreement;
- the Schedules to this Agreement.
Except as set out in a Contract Note, the terms of this Agreement prevail over any inconsistent terms in any other communication or agreement even if at some later date CUSTOMER signs or otherwise purports to accept the terms of that communication or agreement other than in the manner outlined in clause 22 (Variation).
4 REQUESTING SERVICES FROM SOLARIX
4.1 Contract Note
CUSTOMER will request SOLARIX to perform Services by issuing SOLARIX with a Service Request in the form of a draft Contract Note.
4.2 Commencement of the Services
If both parties accept and execute the draft Contract Note, that Contract Note will be appended to, and will form a part of, this Agreement.
5.1 Term of the Agreement
This Agreement is for a fixed period of time and commences on the Commencement Date and will terminate on the last day of the period stated – unless mutually agreed in writing, and duly signed by authorised Officers of both Parties to this contract between. On the expiry of the Initial Term, provided neither party has given notice of termination in accordance with this clause, this Agreement (and any then current Contract Note) will continue in full force and effect. Either party may terminate this Agreement with effect from or after the end of the Initial Term by giving the other party current month plus thirty (30) days’ written notice.
6.1 SOLARIX’s Obligations
Subject to CUSTOMER’s complying with clause 9 (Invoicing and Payment) and CUSTOMER’s obligations under this clause 6, SOLARIX will during the term of this Agreement:
- provide the Services specified under a Contract Note for the Fees specified in that Contract Note or (if no Fees are specified) at the Fees set out in Schedule 1 (as amended from time to time)
- use best endeavours to manage and maximise arrangements with other carriers (“Interconnecting Carriers”) that interconnect with national and international networks as part of SOLARIX’s national and internal network. The interconnecting carriers facilitate delivery of traffic between international and national gateways and other points connected to the internet. SOLARIX will endeavour to maintain those arrangements and facilitate such traffic. However, because of the nature of interconnected IP Networks, SOLARIX cannot accept any responsibility or liability whatsoever (including arising from negligence) for any traffic beyond our own infrastructure.
6.2 CUSTOMER’s Obligations
- provide SOLARIX with all reasonable assistance including providing personnel, access to information, documentation, facilities and equipment as SOLARIX reasonably considers necessary;
- maintain, and procure that SOLARIX’s customers maintain, the secrecy and confidentiality of all identification and log-in information required by CUSTOMER or CUSTOMER’s customers to access the Services;
- take full responsibility for, and promptly pay, all taxes imposed on either party in respect of any Services;
- take full responsibility for all charges relating to purchases made by CUSTOMER and any surcharges incurred by CUSTOMER while using any supplementary networks other than the Network or services other than the Services;
- not do, and procure that CUSTOMER’s customers do not do, anything unlawful with or in relation to the Network or any Third Party Materials;
- not do, and use all reasonable ends or means to procure that CUSTOMER’s customers do not do anything that may have the effect of jeopardising the operation of the Network or any Service;
- meet all the responsibilities required by CUSTOMER for the provision in each Contract Note; and
- where applicable, provide any Third Party Materials reasonably required by CUSTOMER for the provision of the Services and obtain all consents necessary from third parties to enable the legitimate use of the Third Party Materials by CUSTOMER in providing the Services.
7 CUSTOMER’S WARRANTIES
- that it is authorised to enter into this Agreement;
- that its obligations will be carried out with care, skill and diligence in accordance with good business practice;
- and indemnifies SOLARIX against any liability in relation to the material or information accessed by CUSTOMER or CUSTOMER’s customers;
These warranties are in lieu of all other warranties by CUSTOMER. All representations, warranties or conditions implied by statute, at law, by trade, custom or otherwise are expressly excluded to the fullest extent permitted by law.
8 INTELLECTUAL PROPERTY
8.1 SOLARIX’s Intellectual Property
CUSTOMER acknowledges that all right, title and interest in SOLARIX’s Intellectual Property is owned by SOLARIX.
8.2 CUSTOMER’s Intellectual Property
SOLARIX acknowledges that all right, title and interest in CUSTOMER’s Intellectual Property is owned by CUSTOMER.
8.3 Third Parties’ Intellectual Property
Each party acknowledges that it will not obtain any right, title or interest in the Third Party Intellectual Property.
8.4 CUSTOMER’s use of Intellectual Property belonging to SOLARIX
SOLARIX grants to CUSTOMER’s, for the term of this Agreement, a personal, non exclusive, non transferable licence to use SOLARIX’s Intellectual Property which directly relates to the Services for its own internal business purposes on the terms of this Agreement.
8.5 Future Developments
Notwithstanding any other provision in this Agreement or a Contract Note, CUSTOMER acknowledges that SOLARIX may utilise anything arising as a result of the provision of the Services to provide services which are the same as, or similar to, the Services to other parties and may replicate and exploit the Services and the results of the Services.
9 INVOICING AND PAYMENT
Unless otherwise stated, all Fees are exclusive of GST, which must be paid by CUSTOMER as set out in the invoice terms.
SOLARIX will issue to CUSTOMER one or more invoice(s) addressed to the CUSTOMER Contact Person via email and in PDF form for the Fees as set out in each Contract Note in relation to Services performed by SOLARIX or utilised by CUSTOMER (including Services utilised by CUSTOMER’s customers and any person using (whether that use is authorised or not) any password issued to CUSTOMER by SOLARIX) during the previous month and for all other charges agreed as acceptable by the parties. Unless stated otherwise in the relevant Contract Note, CUSTOMER will provide payment by an automatic payment schedule for SOLARIX’s invoices by the 20th day of the month following the date of the relevant invoice.
9.3 Invoice Disputes
Where CUSTOMER genuinely disputes a SOLARIX invoice, CUSTOMER must promptly pay the undisputed portion of the invoiced amount to SOLARIX. The dispute over the remaining unpaid amount will then be determined in accordance with clause 13 (Dispute Resolution).
10 CONFIDENTIAL INFORMATION
10.1 Use of Confidential Information
A party (Recipient) must always keep the other party’s Confidential Information confidential and unless the other party gives its prior written consent, the Recipient must not:
- use the Confidential Information for any purpose other than for the reason it was provided; or
- otherwise copy or reproduce any of the Confidential Information in any way.
10.2 Disclosure to Staff
The Recipient must only disclose the other party’s Confidential Information to its staff and permitted contractors who need it to enable the carrying out the purpose for which the Confidential Information was provided, but before the Recipient does so it must first inform its staff and permitted contractors of the confidential nature of the Confidential Information.
10.3 Disclosure where Legally Required
If the Recipient is legally required to disclose any of the other party’s Confidential Information, the Recipient must advise the other party of this before disclosing it. The Recipient must only disclose that part of the Confidential Information which the other party’s legal advisors reasonably believe is necessary to disclose by law.
10.4 No Intellectual Property Rights
Each party acknowledges that it does not own or acquire any Intellectual Property rights in the other party’s Confidential Information.
10.5 Rights at Law Remain
Both parties acknowledge that their obligations of confidentiality under this Agreement are in addition to the duties of confidentiality which the law imposes.
11 SOLARIX’S LIABILITY
11.1 Consequential Losses
SOLARIX will have no further liability or responsibility to CUSTOMER for any other direct, indirect or consequential injury, loss (including loss of profits, data or business opportunity) or damage, whether arising in contract, tort, equity or otherwise arising between the parties.
11.2 Third Party Materials
SOLARIX will not be liable to CUSTOMER for any defects in, or damage caused by, any Services, or Third Party Materials.
11.3 Limitation of Actions
No action of any kind by either party against the other party arising as a result of this Agreement (other than in relation to payment of Fees) may be commenced more than 6 months from the date the cause of action first arose.
12 DEFAULT AND TERMINATION
If CUSTOMER fails to pay the Fee(s) to SOLARIX in accordance with this Agreement and/or a Contract Note, CUSTOMER will be in default and must on demand by SOLARIX pay to SOLARIX default interest on the amount due from the due date of payment until the date of actual payment at a rate equal to two percent (2%) per month, in addition to CUSTOMER remaining liable for the full amount outstanding.
12.2 Immediate Termination
Either party may terminate this Agreement immediately on written notice to the other party if the other party:
- enters into a composition with its creditors, is declared bankrupt, goes into liquidation (except for the purposes of solvent amalgamation or reconstruction), or a receiver, or a receiver and manager, or statutory manager is appointed in respect of it, or any steps are taken towards its winding up or it is unable to pay its debts when due, or the other party forms the opinion in good faith that the other party is or may be insolvent; or
- assigns its rights under this Agreement or a Contract Note otherwise than in accordance with clause 21 (Assignment).
12.3 Termination by either Party
If one party materially defaults in the performance of any of its obligations under this Agreement and:
- the material default is capable of being remedied, and within 14 days of notice by the non-defaulting party specifying the default, is not remedied; or
- the material default is not capable of being remedied, then the non-defaulting party may immediately terminate this Agreement at its sole discretion.
12.4 Consequences of Termination
On termination of this Agreement for any reason whatsoever, CUSTOMER will promptly pay to SOLARIX an amount to fairly reflect Services performed by SOLARIX (whether completed or not), and following this payment CUSTOMER will return all SOLARIX supplied documentation and SOLARIX supplied items to the SOLARIX Contact Person within thirty (30) days of the termination date. CUSTOMER must immediately pay all outstanding Fees.
The provisions of clauses 1, 2, 3, 8, 9, 10, 11, 12.5, 14, 15, and 16 and all other provisions intended to survive termination shall continue in effect after termination or expiry of this agreement.
13 DISPUTE RESOLUTION
The parties agree to use their best efforts and good faith to resolve any dispute that may arise in relation to this agreement by negotiation. If the parties cannot resolve the dispute by negotiation, either party may give written notice to the other party referring the dispute to arbitration.
The arbitration shall be conducted by one arbitrator who shall conduct the arbitral proceedings in accordance with the Arbitration Act 1996. If the parties are unable to agree the single arbitrator, an arbitrator shall be appointed, upon request of either party, by the President of the Auckland District Law Society (President).
The terms of appointment of the arbitrator shall, if the parties fail to agree, be fixed by the President. The decision of the arbitrator shall be final.
The parties shall continue to perform their obligations under this agreement as far as possible as if no dispute had arisen pending the final settlement of any matter referred to dispute resolution.
Nothing in this clause shall preclude either party from taking immediate steps to seek urgent equitable relief before a New Zealand Court.
Neither party will advertise or publicly announce any matter relating to or arising from the performance of this Agreement or a Contract Note without the prior written consent of the other party. Notwithstanding the above, the parties may agree that CUSTOMER will act as a reference site to reasonably assist SOLARIX to promote services as describe within the agreement.
15 RELATIONSHIP OF THE PARTIES
The parties agree that SOLARIX is an independent contractor to CUSTOMER and that nothing in this Agreement constitutes a partnership, joint venture or relationship of employer and employee between the parties. Neither party may:
- act or hold itself out as an agent or representative of the other party; or
- assume, create or waive any obligations on behalf of the other party.
16 CONTRACTS PRIVITY ACT
This agreement will not and is not intended to confer any benefit on or create any obligation enforceable at the suit of any person not a party to this agreement.
17 FORCE MAJEURE
Notwithstanding any other provision of this Agreement, non-performance by either party of any of its obligations (other than to pay money) under this Agreement will be excused, without liability for non-performance, during the time and to the extent that this is prevented by an event or circumstance beyond the reasonable control of that party (Force Majeure). The party claiming the benefit of this clause must promptly give written notice to the other party specifying the cause and extent of its inability to perform any of its obligations under this Agreement and the likely duration of the non-performance and must take all reasonable steps to remedy or reduce the Force Majeure.
18 ENTIRE AGREEMENT
This Agreement and each Contract Note will constitute the entire agreement between the parties for the provision of the Services and supersedes all prior written and oral proposals, agreements and communications between the parties.
Any variation of this Agreement or a Contract Note will be in writing, refer to this clause and be signed by a duly authorised representative of each party.
If any provision of this Agreement or a Contract Note is declared invalid, the remaining provisions of this Agreement or the Contract Note will continue to apply.
SOLARIX may assign any or all of its rights and/or subcontract any of its obligations under this Agreement or any Contract Note and will give CUSTOMER thirty (30) days’ notice of any assignment.
CUSTOMER must not assign any or all of its rights under this Agreement or a Contract Note without SOLARIX’s prior written consent.
Any notice required or permitted under the terms of this Agreement or required by statute, law or regulation will (unless otherwise provided) be in writing and delivered by hand, by prepaid mail or by facsimile to the addresses set out on the front page of this Agreement and will be deemed to have been received at the time when actually delivered if delivered by hand, or upon confirmation of successful transmission if sent by facsimile, or three (3) days after posting if sent by mail.