These are the terms on which Linewize Limited (the Company) and/or its subsidiaries agrees to supply the equipment (Equipment) and services (Services) listed on the order form that is shown on the reverse of, attached to, or otherwise provided with these terms and signed by the parties (Order Form). These terms and the Order Form together form the Hardware and Services Agreement (Agreement) that governs the supply of the Equipment and Services. You agree to comply with your obligations under this Agreement.
(a) “Abuse” means any damage to the Equipment that is not caused by fair wear and tear and includes, but not limited to, damage caused by liquid, electricity, impact or use outside normal operating conditions;
(b) "Agreement" means this agreement, its Schedules and terms and conditions, any other terms and conditions specifically relating to the various Equipment and/or Services provided, and all other documents forming part of this Agreement including the Customer Services Agreement;
(c) “Application Form” means the application form on the front page of this Agreement;
(d) "Business Hours” means 8.30am to 5.00pm Monday to Friday, excluding weekends and public holidays;
(e) “Commencement Date” means the date of this Agreement;
(f) ”Company", "we", “our” or “us" means Linewize Limited, its assignees, successors and any subcontractor engaged by, the Company to provide the Services;
(g) "Components" or "Parts" means any component part or complete unit of the Equipment;
(h) “Customer", "you" and “your” means the person(s) or legal entity named overleaf. If there is more than one, and/or it means each of you separately and all of you jointly and severally;
(i) "Customer Services Agreement" means the customer services agreement entered into by the Customer and the Company relating to the various Equipment and/or Services provided;
(j) "Location" means the place the Equipment and or Service has been located and/or where the Software has been installed;
(k) "End User" means the consumer who will purchase products and/or services from you;
(l) "End User Service" means any and all Services provided to you for the use by an End User;
(m) "Equipment" means all equipment terminals, Software and accessories provided by us to you, and includes all equipment supplied in addition to or in substitution of the equipment detailed overleaf;
(n) "Fees" means all the sums payable to us by you under this Agreement, over the full Term;
(o) "Guarantor(s)" means those person(s) guaranteeing the obligations of the Customer under this Agreement;
(p) “Initial Term" means the initial term provided for in the Customer Services Agreement;
(q) “Reseller” means the person or business that is detailed overleaf;
(r) "Services" means the Equipment and/or Services to be provided by the Company as detailed overleaf;
(s) "Service Centre" means the place advised to you from time to time which the Service Level will be provided to you;
(t) "Service Level" means Standard Telephone Support only. Any other service level requires a separate agreement to be entered into with you. if the Service Level is not specified then the level of service to be provided is Standard Telephone Support only;
(u) “Software” means the executable program and/or application loaded into Equipment or such other item to allow the delivery of the Services;
(v) "Telephone Support" means having a person available to answer any questions and/or to endeavour to resolve Issues with the provision of the Equipment and/or Services within Business Hours;
(w) "Third Party" means any organisation or individual or company who deliverers parts of the Services where these are not in our control;
(x) "Term" means the term of this Agreement from the Commencement Date until termination under clause 17..
(y) Any terminology of the singular also includes the plural.
2.1. Possession and use: In some instances, the Company may agree to provide you with Equipment to allow the Services to be delivered to you, in this instance;
(a) The Equipment remains our property at all times. You only have a right to use the Equipment for the Term and no right to purchase the Equipment on or before termination of this Agreement. You must protect, and make clear to others our interest in the Equipment. You must not give another person an interest in, or security over the Equipment to others for any reason;
(b) You have acted solely on your own judgement in taking the Equipment under this Agreement;
(c) You have not relied on any representation about the Equipment by or on behalf of the Company as to its suitability for any particular use;
(d) You must not part with possession of or alter the Equipment in any way unless agreed by us in writing;
(e) We may act in your name, or on your behalf, to take any steps to protect our interest in the Equipment;
(f) We have the right to enter your premises to exercise our right under this Agreement, including removal of the Equipment;
(g) We may engage sub-contractors to provide, install, maintain and/or restore all or any of the Equipment or Service;
(h) We may charge you for repairs to, or replacement of, any Equipment that is lost, damaged or destroyed while it is in your care (Repair Charges); and
(i) at any time swap the Equipment for alternative equipment offering essentially the same functionality.
(j) You must not move the Equipment to any other location without our permission in writing;
(k) You must use the Equipment for the purpose for which it was designed and in accordance with the manufacturers instructions. Opening the cases will be considered Abuse;
(l) Replaced Components become part of the Equipment once they have been exchanged for any reason;
(m) If additional or different Equipment is provided to you, it will be on the same terms and conditions as contained in this Agreement and you must pay all additional Fees thereof;
(n) Only the Company and its service agents shall be permitted to carry out any installation or removal of the Equipment which shall be completed at the Customers cost.
2.2. Personal property: You agree that the Equipment is personal property.
2.3. Equipment not a fixture: You must not affix the Equipment to land without the Company's consent in writing and, if the Equipment becomes affixed to land, you agree to grant to, or procure for, the Company an interest in and right of entry to such land for the purposes of removing the Equipment. You agree to obtain an acknowledgement from all mortgagees and owners of the land that the Equipment is personal property, owned by the Company, and not a fixture.
2.4. Acceptance: You must acknowledge acceptance, in good working order, of Equipment sent to you by the Company. the Company will be entitled to deem that you have accepted such Equipment if you do not notify the Company within two days of dispatch.
3.1. Services: the Company will provide the Services within a reasonable time, and will use reasonable endeavours to comply with any specific time agreed with you in writing.
3.2. Swapwize™: If you receive the Swapwize™ Service, you agree to only use the Equipment supplied under the Swapwize™ Service as backup Equipment in case of a failure of any Equipment you have for day to day use.
3.3. SIM card: If you receive a the Company SIM card to allow connection to a mobile network, you agree:
(a) only to use the SIM card reasonably and for the purpose it is intended;
(b) not to alter or tamper with the SIM card in any way; and
(c) not to attempt to use the SIM card with any device except the Equipment provided to you by the Company.
4.1. Customer May Not Assign: The Customer may not assign or transfer all or any of its rights, benefits and obligations under this Agreement without the prior written consent of the Company, the granting of which shall be at the sole and unfettered discretion of the Company. If you wish to assign your rights under this Agreement, you can apply to do so on our 'Assignment Agreement' form;
4.2. Company May Assign: The Company may at any time assign or otherwise transfer to any party all or any part of its right and obligations under this Agreement and in that event (and subject to clause ( 4.3.) the assignee or transferee should have the same rights against the Customer and the Guarantor as it would have had if it had been a party to this Agreement;
4.3. Company may Assign to Financier: The Company may assign this Agreement to a financier of the Company at its sole discretion. Where such an assignment occurs, the Customer agrees and acknowledges that the financier shall take assignment of all rights of the Company under this Agreement, but shall not take an assignment of any of the Company's obligations under clause 7. or any other obligation of the Company to the Customer under this Agreement or at law.
4.4. Assignment Fee: A fee is payable, in advance, to cover the administrative costs of Assigning an existing Agreement;
4.5. Creditworthiness: Assignment of an Agreement is subject to the creditworthiness of the Assignee and at our discretion.
4.6. Information: The Customer and the Guarantor agree that the Company may disclose to a potential assignee or to any person who may otherwise enter into contractual relations with it in relation to this Agreement such information about either of them as the Company considers appropriate, absolutely or by way of security.
5.1. You agree:
(a) That this Agreement creates a Security interest for the value of this Agreement in accordance with the PPSA;
(b) To waive your right to receive verification statements connected with any financing statement or financing change statement registered under the PPSA in relation to the security interest arising under this Agreement;
(c) To the extent permitted by law sections 114(1)(a) and 133 of the PPSA will not apply;
(d) To the extent permitted by law they will have none of the rights referred to in section s116, 199, 120(2), 121, 125, 126, 127, 129, 131 and 132 (PHA) and
(e) That where the Company has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
(f) You must do all such things and execute all such documents as we may require to ensure that the Company has a perfected first ranking security interest(s) in the Equipment and for indebtedness relating to the fees payable under the terms of this Agreement; and
(g) You will indemnify us for any costs the Company incurs in doing any of the above Including registering, maintaining and enforcing the security interest and
(h) You will immediately upon request by us, procure from any person considered by the Company to be relevant to its security position, such agreements and waivers as the Company may at any time require; and
(i) You will immediately notify us of any change in (i) your name, (ii) any trading or business name you may use or (iii) in the legal or beneficial shareholding in the Customer.
6.1. In signing this Agreement you acknowledge and agree:
(a) That you accept that the Company will be providing a range of Services, to be delivered and/or operated on the Equipment listed overleaf or via Equipment you have provided (at exclusive option of the Company);
(b) You agree to pay the Fees on or before the dates specified in the Agreement for the Term of the Agreement;
(c) To immediately call the Service Centre to log any defect, fault and/or failure with the Equipment or End User Services;
(d) To allow us to have immediate access during Business Hours to install, inspect, test, repair, replace or upgrade Equipment to maintain Service;
(e) To not commit any Abuse of the Equipment, including attempting to modify or alter the Equipment and/or Software without our consent;
(f) To pay for the repair or replacement of the Equipment if Abuse occurs, whether or not such Abuse is your fault or caused by you.
(g) To keep the Equipment in the same good working condition as at the commencement of this Agreement excepting fair wear and tear;
(h) To have the Equipment repaired and maintained in accordance with the manufacturer's instructions;
(i) To not represent that we or the Reseller will pay for any repair or maintenance work done by others;
(j) To immediately notify us of any loss, damage, or destruction to the Equipment, no matter how it occurred;
(k) To obtain and maintain any appropriate consents (such as building or landlord) as may be necessary to provision the Equipment or Service of End User Service;
(l) To first obtain written consent of and comply with the directions of us or any Third Party relating to the use of our or the Third Party's marks, logos or advertising materials;
(m) To ensure that the Equipment: (i) is used in a careful and prudent manner and solely for the purpose intended by its manufacturer and in accordance with the manufacturer's instructions; (ii) is kept in its possession and under its control at the place at which it is installed or at such other place approved by the Company; (iii) shall not be used in contravention of any policy of insurance relating to it; and (iv) is used solely for the purposes of and incidental to the Customer's business;
(n) To ensure that every user and/or operator of the Equipment complies with all laws affecting: (i) the Equipment; and (ii) the use and possession of the Equipment;
(o) To ensure that no user and/or operator interferes with any identification marks, labels, logos or notice on the Equipment;
(p) Not to allow the Equipment to be used or permit anything to happen to the Equipment whereby the warranties relating to the Equipment may become inoperative or be prejudicially affected;
7.1. Service Provision: Providing all Fees have been paid, then we will provide the Service Level to you during the Term of this Agreement. In the event a replacement Part is required then we may use either new or refurbished Parts;
7.2. Service Hours: Telephone support will only be available during business hours unless you have entered into a separate Service Level Agreement.
7.3. Service Expediency: We will use all reasonable endeavours to respond to service calls in accordance with the Service Level however we make no guarantee as to the time period for such a response;
7.4. Best Effort: We are not obliged to provide the Service Level if prevented from doing so by circumstances beyond our control or the control of any Third Party that provides the Service Level.
8.1. Authorised Signatory: The person signing this Agreement confirms that they are properly and duly authorised to sign on behalf of the Customer. Should they not be authorised then they agree to accept full responsibility for all aspects of this Agreement on a personal basis;
8.2. Non Binding: This Agreement is not binding on us until accepted and signed by an authorised signatory of the Company but it is binding on you once you have signed This Agreement;
8.3. Additional Conditions: In some instances Services and/or End User Services will require specific additional terms and conditions. If not specifically noted in these terms and conditions, we will provide these to you and those terms and conditions also form part of this Agreement. Further, where those terms and conditions are not consistent with these terms and conditions, then these standard terms and conditions will take precedence;
8.4. Whole Agreement: This Agreement, and any other specific terms and conditions provided relating to Service or End User Services is the whole Agreement between us, and you have not relied on any other statement document or promise made by a third person introducing you to us, whether before or after this Agreement is executed. You acknowledge that we may pay a commission to that introducing person or business;
8.5. No Variation: The terms of this Agreement cannot be varied or waived by you without our written consent;
8.6. Validity: Any provisions which are invalid in law will be ineffective but will not make any other provisions invalid;
8.7. Third Party Indemnity: You will indemnify us against any claim or loss suffered by us as a result of you being in breach of any terms and conditions imposed by any Third Party in relation to supply of Services or End User Services or the Equipment.
8.8. Set-off: If the Customer fails to make any payment to the Company when due, the Company may debit the amount to any other account of the Customer with the Company or airy related company or deduct it from any amount the Company or any such related company owes the Customer.
9.1. Governing Law: This Agreement is governed by and shall be construed in accordance with the laws of New Zealand.
10.1. Access: You must allow us to enter any premises where we believe that the Equipment is located for the purposes of exercising any of our rights (including retaking possession) of the Equipment in accordance with this Agreement.
11.1. Right of Completion: You authorise us to fill out any spaces left blank by you in this Agreement, including but not limited to, the Term or Service Level or Fees, and to correct any errors relating to any aspect of this Agreement.
12.1. The Customer irrevocably appoints the Company and any authorising officer of the Company severally to be The attorney of the Customer to execute all such documents and to do such things as may be required on the part of the Customer to give effect to the provisions of the this Agreement.
13.1. Right of Variation: The pricing will be at the rates as quoted at the time of entering this Agreement and the Company reserves the right to vary the rates from time to time by giving at least 30 days written notice to the Customer. The variation shall lake effect from the date nominated in the notice;
13.2. Order Variation: The Company may pass on any Increase in the cost of the Service, the installation or provision of the Service where such Increase is caused by (i) any act, omission or delay by you or any variation in the Equipment or Service ordered, requested by you after the date of this Agreement or any material fact not discoverable at the date of this Agreement (ii) any Third Party.
14.1. Fees: The fees for the Equipment and Services are those stated in the Order Form or, where no fees are stated, are the Company's then current fees for the relevant Equipment and/or Services (Fees).
14.2. You must pay Fees: You must pay the Fees, and any applicable taxes including GST, beginning from the Commencement Date. If no Commencement Date is shown then you must pay the Fees from the Date of Customer Execution.
14.3. Fee variation: the Company may vary the Fees at any time by notice in writing to you for any reason, including to reflect changes to charges payable by the Company to its suppliers.
14.4. Payment obligation ongoing: Your obligation to pay the Fees will continue even if the Equipment is lost, damaged, or not fully functional.
14.5. Invoices: the Company will issue invoices to you for all amounts due under this Agreement. Any amount due under this Agreement that is not Fees will be payable as if it was Fees in accordance with the payment terms set out in this clause 14..
14.6. Payment: Payment of amounts due will be made without deduction or set off no later than the due date showing on the relevant invoice.
14.7. Default charges: You agree that the Company may charge you additional fees if you fail to make any payment under this Agreement when due, including fees for steps taken to recover overdue amounts or Equipment (Default Charges).
14.8. Default charges variable: Default Charges may be varied by the Company at any time and will be added to any existing overdue amount.
14.9. Interest: Overdue amounts will accrue interest at the rate of 12.5% per annum from the due date until the date of payment.
14.10. Indemnity: You agree to indemnify the Company against all costs and losses incurred by the Company as a result of your overdue payment, including in the recovery of any overdue amounts.
14.11. Payment completion: Payment is not deemed to have been made until it has been cleared by the Company's bank.
15.1. Equipment Liability: The Equipment is at your risk from the date of signing this Agreement;
15.2. Equipment Cover: You must insure and keep insured the Equipment with an Insurer approved by the Company. Such insurance must:
(a) Be for such risk and for such amount or amount(s) and on such terms as are set out in this Agreement or as are otherwise acceptable to the Company;
(b) Provide all losses are payable to the Company.
15.3. Right of Information: You must provide us with details of the insurer and policy number if requested.
15.4. Right to Cover: if you do not effect or keep such Insurance, the Company may effect or keep such insurance at your cost either in the name of the Company or the Company and the Customer;
15.5. Claim Notification: You must immediately notify the Company and the Insurer of the happening of any insured event in relation to the Equipment;
15.6. Claim Payment: Any moneys payable under any insurance policy covering the Equipment must be paid to the Company unless otherwise consented to in writing by the Company;
15.7. Claim Options: The Company may:
(a) apply the insurance moneys to replace or repair the Equipment if in the Company's opinion the insurance moneys are adequate for this purpose;
(b) terminate this Agreement by giving notice to the Customer if in the Company's opinion the insurance moneys are not adequate to repair the Equipment; and
(c) be entitled to receive and apply any Insurance moneys towards payment of Fees and other moneys payable to the Company under this Agreement.
15.8. Power of Attorney: The Customer appoints the Company its attorney to recover and/or compromise any claim for loss or damage under any Insurance policy relating to the Equipment or otherwise to give valid releases or receipts for such claims.
16.1. Term: This Agreement will come into force on the Date of Customer Execution and will continue until the end of the Minimum Term or until the Expiry Date, whichever occurs later (Initial Term). If no Minimum Term or Expiry Date is stated on the Order Form this Agreement will continue on a month to month basis, subject to clause 17.1..
16.2. Expiry of Initial Term: Without limiting clause 17.1., following the end of the Initial Term either party may terminate this Agreement immediately by notice in writing to the other party. This Agreement will continue on a month to month basis until such notice is received or it is otherwise terminated or expires.
16.3. Your obligations continue: Notwithstanding termination or expiry of this Agreement, your obligations under this Agreement will continue in full force and effect until the Company agrees, in its sole discretion, that the Equipment has been returned in good working order and all amounts due to the Company under this Agreement have been paid in full.
17.1. Termination of Agreement: It is fundamental provision of this Agreement that should any of the following events occur:
(a) You or the Guarantor fails to observe or perform any of the provisions of this Agreement including failure to make payment of any Fees and such default continues for 7 days; or
(b) You breach of any of the terms of the Insurance policy in relation to the Equipment or it is refused or cancelled; or
(c) We discover a false statement or omission made by you in this Agreement; or
(d) An application is made to adjudicate you or the Guarantor bankrupt or an application or resolution is passed for your or the Guarantor's liquidation or winding up, or you or the Guarantor are dissolved or struck off the NZ Companies office register; or
(e) A receiver, liquidator, administrator or like person is appointed to you or the Guarantor or any part of your assets and Income or the Guarantors assets and income; or
(f) Any act which you cause or permit threatens the safety, condition or safe keeping of the Equipment or You or the Guarantor ceases to carry on your business or you or the Guarantor repudiate this Agreement or your or the Guarantors conduct indicates that you or the Guarantor no longer intend to be bound by this Agreement;
(g) You or the Guarantor allows a judgment or order against it to remain unsatisfied;
(h) THEN we may at any time, and without notice, terminate this Agreement and take possession of the Equipment. In addition you provide us with the right to request suspension or termination of the Services until such time as the default has been rectified and/or all Fees owed have been paid;
17.2. Payment on Termination: At the date of termination you shall pay us the following cumulative amount (Payout Amounts):
(a) Any fees owing which you have not paid, Including any cost incurred by us including those incurred in obtaining or attempting to obtain possession of the Equipment and the removal, storage and sale of the Equipment (if any);
(b) All interest accrued on such amounts at the rate of 20% per annum from the due date until payment is made to the Company calculated on a daily basis;
(c) The market value of the Equipment, if it is not returned;
(d) The cost of any repair or damage to Equipment;
(e) Any termination Fees, payable at the then current rates charged by us;
17.3. Non Limiting: This does not limit your liability to us for any other legal action we may have against you for any breach;
17.4. Outstanding Fees: Any fees owing at the date of termination shall be immediately paid and the Service Level shall cease to be provided at that date;
17.5. Fees Non-Refundable: Any fees that have been paid at the date of termination shall be deemed to have been fully utilised;
17.6. Additional Fees: After termination we may Issue an Invoice to you for any additional Fees (including costs of collection and/or interest) which shall be immediately paid by you;
17.7. Equipment Repossession: Alter the termination or expiry of this Agreement, we may enter the Location and remove all Equipment and Software relating to the Services provided. You also agree to return immediately any (i) documentation (ii) marketing material (iii) collateral (iv) other Information or data relating to the Services provided by us;
17.8. Early Termination: Should we terminate this Agreement under 17.1 then the Early Termination Fee will also be payable to us.
18.1. Commencement of Term: The Customer acknowledges that the Customer has taken or will take possession of the Equipment on the Commencement Date and this Agreement runs until the earlier of:
(a) The date this Agreement is terminated under clause 17.; or
(b) The date that one party gives the other 90 days written notice of termination, provided that the Customer shall not be entitled to terminate this Agreement under clause (b) until the expiry of the Initial Term.
18.2. Continuation of Term: The Customer acknowledges that, pending termination in accordance with clause 18.1., this Agreement will continue in full force and effect after the Initial Term.
18.3. Completion of Term: When this Agreement is duly terminated, you must, on the day of termination, return the Equipment to us at our registered office and pay far any costs of delivery. Failure to do so will result in us invoicing you for the market value of the Equipment.
19.1. No warranty: Except as expressly provided otherwise in this Agreement, and to the maximum extent permitted by law, the Company excludes all express or implied warranties or representations in relation to the Equipment and Services. We have made no representation or statement and give no condition, warranty or guarantee about (i) the condition, quality, fitness, suitability or safety of the Equipment (ii) the date the Equipment will be delivered, (iii) any taxation issues or (iv) the Service provided.
19.2. Business purposes: You agree that the Equipment and Services are acquired for business purposes and that the Consumer Guarantees Act 1993 does not apply to this Agreement. We are not liable to you or anyone else for any loss, damage, expense or claim, direct, indirect or consequential arising out of the performance or non-performance of the Product and/or Equipment and/or Services;
19.3. Service provision: We do NOT guarantee that the Equipment will work at all sites and in all instances. It is up to you to ensure that the Equipment meets your needs and the Service is acceptable before signing this Agreement;
19.4. Indemnity: You agree to indemnify the Company against damage, loss or theft of the Equipment and against any losses, damages or costs related to the supply of the Services.
19.5. Third party supplier’s terms binding: If you receive any Equipment or Services under this Agreement from a third party supplier to the Company then you agree to comply with that third party supplier’s terms and conditions relating to the supply of the Equipment or Services and you indemnify the Company against all loss, costs or damage suffered or incurred by the Company as a result of your failure to comply with such terms and conditions.
20.1. Certain types of liability excluded: In no event will the Company be liable (whether in contract, tort including negligence, or otherwise):
(a) for loss of revenue or profit, loss of anticipated savings, loss of goodwill or opportunity, loss of production, loss or corruption of data or wasted management or staff time; or
(b) loss, damage, cost or expense of any kind whatsoever that is indirect, consequential, or of a special nature, arising directly or indirectly out of this Agreement, even if the Company had been advised of the possibility of such damages, and even if such loss, damage, cost or expense was reasonably foreseeable by the Company.
20.2. the Company's total liability limited: Subject to clause 20.1., the maximum liability of the Company for any breach will be limited, at the option of the Company, to any one or more of, (i) the replacement of the same or equivalent Equipment or Service, (ii) the repair or payment for repair of such Equipment, (iii) repayment of all Fees paid up to the date liability is proven;
20.3. Third party liability excluded: We take no responsibility nor accept any liability for the performance of Third Parties in relation to the delivery of Services;
20.4. Scripted message liability excluded: We take no responsibility nor accept any liability for the accuracy or statutory compliance of messages scripted by you;
20.5. Content liability excluded: We accept no liability for claim or prosecutions arising from any music, video, advertising or message placed as part of the Service.
21.1. Guarantors obligation: The Guarantors, jointly and severally guarantee to pay to the Company all fees that become owing by the Customer under this Agreement. The Guarantors give this Guarantee because the Company has agreed, at your request, to enter into this Agreement;
21.2. Enforcement of guarantee: The Company may enforce this Guarantee against the Guarantors before exercising its rights against you. This Guarantee remains enforceable against the Guarantors in any event whatsoever, including changing of the terms, releasing you from some obligations and/or giving you extra time to pay.
21.3. Additional equipment and services: The Guarantors acknowledge that the Customer may acquire from the Company Equipment and/or Services additional to that described in the Agreement and this Guarantee extends to that further Equipment and/or Services.
21.4. Continuing guarantee. The guarantee in clause 21.1. will be a continuing guarantee until actual performance by the Customer of its obligations under this Agreement.
21.5. Company indemnity: As a separate and independent stipulation, the Guarantor agrees to indemnify the Company against any loss or damage the Company may suffer or sustain by reason deny breach by the Customer of the terms of this Agreement or by reason of this Agreement becoming void or unenforceable in any respect against the Customer.
22.1. Access to personal information: The Customer, directors and Guarantors authorise us to collect, retain and use personal Information about you and/or the Guarantor (the "Information") including directors in the case of a limited liability company or trustees in the case of a trust.
22.2. Right to information: The Customer, directors and Guarantors authorise us (and any financier to whom this Agreement may be assigned pursuant to clause 4.3. ("a financier") to provide and request the information to and from any person for assessing the Customers, directors and/or Guarantors credit worthiness, administering the financing of the Equipment and/or Services, enforcing our (or any financier's) rights (as applicable) under this Agreement or at law, marketing goods and services provided by us or our related companies or a financier (as applicable) and providing information to or requesting Information from, Third Parties or credit agencies for the purpose of maintaining effective credit records and assessing the Customers, directors or Guarantors creditworthiness;
22.3. The Customer irrevocably acknowledges:
(a) That the information shall be deemed to be held by the Company, Third Parties and by any other person for the purposes described above;
(b) That where the information can be readily retrieved, the Customer shall have access to it, the right to request correction and the right to be notified of action taken in response to any such request, subject to payment of any reasonable charge.
23.1. Service: Any notice to be served under this Agreement shall be addressed to the party upon whom it is to be served and shall be sent to that party's address specified on the execution page of this Agreement or to such address as may from time to time be given in writing by a party to the other parties. Any such notice shall be deemed to have been duly served in the case of a communication by letter on the day after being posted by fastpost, correctly addressed and stamped or, if given by hand when actually delivered by personal delivery to the address specified on the execution page of this Agreement, in the case of a communication by facsimile, when Transmitted, Material transmitted by facsimile shall for all purposes be regarded as being in writing.
24.1. Company has ownership: Where we provide you with Software to operate on your hardware (as supplied by you), or Equipment supplied by us to provide the Service, you agree that you have no ownership of this Software and all intellectual Property remains with us. Further, should we further develop the Software, with or without your assistance and knowledge, you agree that ail rights to such developments remains with us;
24.2. Company owns associated properties: Associated electronic music, electronic video and message files supplied by us remain the property of us;
24.3. Violation: You are not to permit or allow staff or any Third Party any access to the Software and/or files in any way which may facilitate the analysis, copying, reverse engineering of the operating system or copying of any music, video or message files. We reserve the right to claim compensatory or other relief for breach of this condition.
25.1. Right to use Customer material: You grant us the right to use (at no cost) your branding and other Information as to your Location and other contact details and business information, on our captive portal and/or web site and/or other piece for marketing and promotion of the locations for access to the End User Service;
25.2. Promotion: You also agree to display documentation, marketing material, price lists, collateral or other Information in relation to the Product and/or End User Services;
25.3. Service provision assistance: You agree to make all reasonable efforts to ensure the ongoing functioning of the End User Service;
25.4. Costs for service restoration: You agree to pay any costs incurred by us due to any breach of this Agreement and/or any repairs needed to the site Infrastructure to restore the Services;
25.5. Adherence with law: You must observe and comply with the provisions of the Fair Trading Act 1986, the Consumers Guarantees Act 1993 and all other applicable laws, regulations and requirements of any government or statutory body, including applicable industry guidelines or codes of conduct.
26.1. Information disclosure: This Agreement is confidential and all information in relation to it, including any Software, Equipment, pricing and other commercially sensitive Information, is strictly private and confidential. On termination or expiry of this Agreement, you will not divulge any information in it to any third party or use it in any way for your own advantage, unless, (i) the information becomes public knowledge otherwise than by us; (ii) you are required by law to make the disclosure; or (iii) we have consented in writing to the disclosure.
27.1. Adherence with acceptable use: All Services are provided on the basis that the acceptable use policy are in place and updated from time to time, is adhered to by you at all times.
27.2. Prohibited uses: You agree that you will not: use the Services for any unlawful purpose, defined at the total discretion of the Company, but including any actions that may be construed as being an infringement of any copyright or intellectual property rights, or otherwise is objectionable, or impacts another person in going about their lawful dates and/or constitutes a criminal offense.
28.1. Responsibility for misuse: As the registered user of the Services, you are responsible for any misuse of the Services, even if the misuse was committed by a friend, family member, or guest with access to your account.
29.1. Force majeure: Neither party will be liable to the other for any breach of, or failure to perform, any of its obligations under this Agreement where such breach or failure is caused by anything beyond that party’s reasonable control, including (without limitation) war, civil commotion, hostility, act of terrorism, strike, lockout, other industrial act, weather phenomena or other act of God, or governmental regulation or direction.
29.2. Variations: the Company may vary this Agreement from time to time and the varied Agreement will become effective immediately it is provided to you.
29.3. Waiver: No failure or delay by either party to exercise any right or remedy under this Agreement will be treated as a waiver of such right or remedy. No single or partial exercise of any right or remedy will prevent the further exercise of such right or remedy.
29.4. Defined terms: Capitalised words and phrases used in this Agreement that are not defined in these terms carry the meaning given to them, if any, in the Order Form.
29.5. Survival: Clauses 14., 19.4., 17.1., 17.5., 10.1., 29.5., 29.6. and any other clause intended to survive termination of this Agreement will continue in full force and effect notwithstanding such termination.
29.6. Partial Invalidity: If at any time any provision of this Agreement becomes illegal, invalid or unenforceable in any respect then that provision shall be severed from this Agreement and the legality, validity or enforceability of the remaining provisions of this Agreement shall not be affected or impaired in any way.
29.7. Rights Not Prejudiced: The rights and obligations expressed in this Agreement shall not be abrogated, prejudiced or affected by the granting of time, credit or any indulgence or concession to the Customer or any other person whomsoever by the Company or by any compounding, compromise, release, abandonment, waiver, variation, relinquishment or renewal of any of the rights of the Company or by any omission or neglect or any other dealing matter or thing which but for this clause could or might operate to abrogate, prejudice or affect the rights of the Company or the obligations of the Customer or Guarantor under this Agreement.
29.8. Remedies: Time shall be of the essence in this Agreement but no failure or delay on the part of the Company in exercising any right or remedy under this Agreement will operate as a waiver thereof nor will any single or partial exercise thereof or the exercise of any other right or remedy.
29.9. Non exclusive rights: The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
29.10. Entire agreement: This Agreement contains the whole of the contract and understanding between the parties relating to the matters covered by it. This Agreement supersedes all prior representations, agreements, statements and understandings between the parties relating to those matters, whether verbal or in writing.