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  • IT Services

IT Services Terms and Conditions (Schedule B)

These terms (IT Services Terms) apply if we provide IT Services to you, in addition to Entity's standard Terms and Conditions (Standard Terms), which also apply to the IT Services provided by Entity. To the extent of any inconsistency between these IT Services Terms and the standard Entity Terms and Conditions, these IT Services Terms will prevail.

Please read these IT Services Terms carefully. By signing a contract, clicking “I agree”, by executing an order form that references these terms, or by approving, accessing or using any service, you acknowledge you have read, understand and agree to these IT Services Terms, including applicable policies referenced throughout. If you accept on behalf of a business or other legal entity, you represent and warrant that you have the legal authority to bind that legal entity to these IT Services Terms and "You" will refer to that legal entity and its affiliates.

If You accept these IT Services Terms solely as a third-party service Administrator (not as a direct Customer) managing or using any service on behalf of a Customer, You represent and warrant that You are acting as an agent of the Customer and You have the full authority to agree to these IT Services Terms with respect to access, use and support of the service. You agree to obtain the Customer’s authorisation and comply with the customer’s instructions at all times with respect to the use of the service and access to and management of IT Services, the transition of the IT Services to a different administrator, and transition assistance and cooperation upon termination or expiration of any relationship between or among an administrator, customer and us.

If You do not agree to these IT Services Terms, You may not engage any IT service from Entity.

  1. Orders
    1. These IT Services Terms are incorporated into each request for service (Order).
  2. Use of other information
    1. If You provide us with comments or other feedback regarding the services or our business (collectively “Feedback”), directly or through any third party, You do so without any expectation of compensation and hereby grant us a worldwide, irrevocable, perpetual, royalty-free right and license to use the Feedback to improve the services and for any other purpose. Feedback is strictly voluntary, and we are not required to hold it in confidence.
    2. Notwithstanding anything else in these IT Services Terms or otherwise, we may evaluate and process the use of services in an aggregate and anonymous manner and compile related statistical and performance information (“Aggregate Data”). We may use and share such Aggregate Data to improve the services, develop new services, analyse usage, and generally for any purpose related to our business. We retain all Intellectual Property Rights in Aggregate Data. For clarity, Aggregate Data does not include personally identifiable information or information that can identify any individual Customer or natural person.
    3. Operational data concerning the use of the services, that servers automatically record relating to the access and use of the services, IP address, authentication tokens, machine identification, access logs, and settings are used by us to provide the services and operate our business and you agree that we may use such Log Data for such purposes.
  3. Your responsibility for access to your service(s)
    1. You are responsible for the security of all Your access credentials to the service, including any action You permit any person or entity to take related to the service using your access credentials. You are responsible for the proper configuration and maintenance of safeguards as they relate to access to and use of the service, including but not limited to individual Administrator and User permissions, local device access, network connectivity and Internet connectivity.
    2. You agree to notify us as soon as practicable of any unauthorised use of any access credentials, password or account or any other known or suspected breach of security.
  4. Support
    1. We will provide reasonable support for the services in accordance with our current support Policies. An Administrator authorised by the Customer is responsible for providing first-level support for each service. By requesting support services, the Customer authorises us to access the service and/or the backed-up data for the purpose of providing the requested service support. We may rely on the instructions and authorisations given to us by any Administrator with access to a service, and we will have no obligation to inform any other Administrator of the service of the same.
  5. Time Keeping
    1. Regardless of whether you have a current IT contract with Entity or not, in all instances, Labour is defined as all time expended by Entity in service of the Client, whether on-site, by phone, by email, at our offices or workshop, remotely or while representing the Client in any capacity. Labour also includes meetings and all timekeeping and reporting activities;
    2. In the case of on-site support, unless you have a current IT contract with Entity that specifically excludes travel time, any and all travel time will be accounted for in the Labour at 50% of the agreed Labour rate. Such travel time is calculated on the assumption that the travel started from the closest regional office to Your location;
    3. In all cases, Labour shall be exclusively recorded on Entity’s timekeeping system;
    4. Unless Authorised Persons is defined in Schedule A of a current IT contract with Entity, all requests for Labour made by the Client’s Senior Leadership Team, Senior Staff or by support tickets created by the Client’s employees shall automatically be classified as an approved request for Labour;
    5. Labour shall be calculated as follows:
      1. On-site visits:
        1. Initial Fee: One (1) hour plus travel time;
        2. Subsequent Fee: Time as consumed, billed per second.
      2. Online support or at an Entity office:
        1. Free “Quick-Fixes” completed in under 5 mins will be considered on a case-by-case basis;
        2. Initial Fee: Fifteen (15) minutes;
        3. Subsequent Fee: Time as consumed, billed per second.
      3. Phone call:
        1. Free “Quick-Fixes” completed in under 5 mins will be considered on a case-by-case basis;
        2. Initial Fee: Five (5) minutes, then time as consumed, billed per second.
  6. Updates and Testing
    1. You agree that we may, and You hereby authorise us, from time to time, to interact remotely with any device in order to test, troubleshoot, or update such device. During maintenance windows the device may not be accessible; we will make reasonable efforts to notify You of such maintenance windows.
  7. Confidential information
    1. Both You and we agree to employ reasonable safeguards to
      1. maintain the confidentiality of each other’s Confidential Information using the same care to prevent disclosure as each of us employs to avoid disclosure of our own information of a similar nature but in no event less than a reasonable standard of care;
      2. limit access to Confidential Information to those persons or entities involved in providing or supporting the services or otherwise in complying with these IT Services Terms, its affiliates, and its financial or legal advisors, all of whom have a legal duty to protect the Confidential Information.
    2. Confidential Information does not include any information that
      1. is or becomes generally known to the public without breach of any obligation owed to the disclosing party,
      2. was known to the receiving party prior to its disclosure by the disclosing Party without breach of any obligation owed to the disclosing party,
      3. is received from a third party without breach of any obligation owed to the disclosing party,
      4. was independently developed by the receiving party;
      5. is approved for release or disclosure by the disclosing party without restriction; or
      6. is Feedback, Aggregate Data, Log Data or backed-up data.
    3. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Law, provided that the party required to make any such disclosure, where permitted by Applicable Law in the reasonable judgment of that party’s counsel, will first have given written notice to the other party in order to allow the disclosing party to seek, at its sole cost and expense, a protective order or other remedy to limit such disclosure.
    4. Each party acknowledges that any breach of any provision of this Section on Treatment of Confidential Information by the receiving party may cause immediate and irreparable injury to the disclosing party, and in the event of such breach, the injured party will be entitled to seek and obtain injunctive relief to the extent provided by a court of the applicable jurisdiction, without bond or other security, and to any and all other remedies available at law or in equity.
  8. Warranties and disclaimers
    1. Each of us represents and warrants that it has validly entered into this Agreement; has the legal power to do so, and by entering into this Agreement it is not in violation of any previous agreement or obligation between it and any third party.
    2. During an applicable Subscription Term, we will provide the service using a commercially reasonable level of skill and care in material accordance with the applicable Specifications. Your exclusive remedy in the event that we do not do so is to terminate this Agreement or any Order for cause as specified in section 17b.

      Except for the limited warranties herein, the services are provided as is and with all faults. To the maximum extent permitted by applicable law, we disclaim all other promises, representations and warranties, either express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, system integration, data security, or warranties arising out of any course of dealing, course of performance or usage of trade.

      We are not responsible for any delays, delivery failures, or other damage resulting from risks inherent in the use of the internet and electronic communications.

      We disclaim any duties of a bailee, and you hereby waive all rights and remedies of a bailor (arising under common law or statute), related to or arising out of any possession, storage, or transmission of data by us. You acknowledge that no password-protected system of data storage can be made entirely impenetrable and agree that the services are not guaranteed against all security threats or other vulnerabilities.

      No oral or written information or advice given by us or any reseller, administrator or other party will create any additional warranties, abrogate the disclaimers set forth above or in any way increase the scope of our obligations hereunder.
  9. Limitation of Liability
    1. To the fullest extent allowed by applicable law, in no event will either party be liable for any incidental, indirect, special, consequential or punitive damages or costs, regardless of the nature of the claim, arising out of the use or inability to use the services, even if advised of the possibility of such damages (whether such damages arise in contract, tort, strict liability or otherwise). In no event will we be liable for the procurement of substitute services.
    2. To the fullest extent permitted by applicable law, our entire cumulative liability for all claims and damages (whether such damages arise in contract, tort or strict liability) will be limited to direct damages only that does not exceed an amount equal to the fees we receive for the individual applicable service in the 12 full calendar months immediately preceding the month in which the event involving that service giving rise to the claim occurred.
    3. The disclaimers, exclusions and limitations of liability set forth in Sections 8 and 9 form an essential basis of this Agreement and have been relied on by both You and us, and absent such disclaimers, and limitations of liability, these IT Services Terms and the fees applicable to the services would be substantially different.
  10. Indemnification
    1. You agree to defend us, our suppliers and affiliates, and the officers, directors, employees and representatives of each of them (each an “Indemnified Party"), from all damages and costs incurred as a result of a third-party claim and You will indemnify and hold any and all “Indemnified Parties harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by You in a settlement in connection with any such claim, to the extent the claim arises out of (a) Your breach of these IT Services Terms, including Your failure to comply with Applicable Law; or (b) if You are a third party Administrator, Your failure to cause each Customer to agree to the applicable service's  IT Services Terms and/or Customer Terms or Your actions in excess of the authority granted to You by any Customer.
    2. Any indemnification obligations set forth in this Agreement will be subject to the following conditions: (a) the party seeking indemnification will notify the indemnifying party in writing promptly upon learning of any claim for which indemnification is sought; (b) the indemnifying party will have control of the defence or settlement; and (c) the Indemnified Party will reasonably cooperate with the defence, at the indemnifying Party's expense.
  11. Arbitration and/or Class action waiver
    1. All claims and disputes arising out of this Agreement or the use of any service, except for those set forth below, that can’t be settled informally between us will be settled by binding arbitration. Arbitration proceedings must be initiated within the statute of limitations and within any deadlines imposed for the pertinent claim. Any settlement offer made by either party may not be disclosed to the arbitrator until after the arbitrator’s determination of any award. Judgment upon the award rendered by way of such arbitration may be entered in any court having jurisdiction thereof. Costs of arbitration (including reasonable attorneys' fees) will be made a part of the arbitrator’s award. The arbitration will take place in Auckland, New. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, will be strictly confidential.
    2. Notwithstanding the foregoing, any claims involving the following are not subject to mandatory arbitration:
      1. alleged infringement or misappropriation of Intellectual Property Rights;
      2. any claims involving a party’s right to indemnification under this Agreement; or any claim for temporary or permanent injunctive relief.
    3. In any circumstances where the parties may litigate in court, the parties hereby waive any right to a trial by jury and hereby submit to the personal jurisdiction of the courts set forth in section 17.
    4. All disputes arising out of or related to this Agreement or any service must be brought on an individual basis, and You hereby waive Your right to, and agree that You will not, bring (or join) a claim as a plaintiff or a class member in a class, consolidated, or representative arbitration, litigation or other proceeding.
  12. Term and Termination
    1. A Subscription Term will commence on the date specified in the Order and will continue for the initial term specified in the Order or, if not specified, for an initial term of one (1) year. Each Subscription Term will automatically renew for subsequent terms of one (1) year each unless either party provides written notice of its desire to terminate at least ninety (90) days prior to the expiration of the then-current Subscription Term. These IT Services Terms will continue until all Subscription Terms have expired or been terminated.
    2. Termination for Breach. Either party may terminate this Agreement or an individual Order for cause upon 30 days notice of a material breach of any of its duties, obligations or responsibilities under this Agreement, provided that the breaching party has failed to cure such breach (or provide an acceptable plan for curing such breach) within the thirty (30) day notice period.
    3. Access to backed-up sites. If a backed-up site amends its API guidelines in such a way that materially affects our ability to access the backed-up Site to provide the service in accordance with the Specifications, and if we are unable to perform substantially the same functionality, either party may terminate the applicable Order by providing to the other thirty (30) days written notice. We will refund any unused prepaid fees for the remainder of the applicable Subscription Term as your sole and exclusive remedy.
    4. Effect of Termination. Upon any termination of a Subscription Term, Customer will immediately discontinue all use of the service. For up to sixty (60) days after the effective date of termination, we will, upon written request allow Customer to export or download a copy of its backed-up Data as provided in the Specifications. After such period, we have no obligation to maintain or provide any backed-up Data and may thereafter delete or destroy all copies of the backed-up Data, unless legally prohibited.
    5. We reserve the right at any time to modify these IT Services Terms and updated IT Services Terms will be posted within the applicable Online Portal. We will make reasonable efforts to notify You of material changes and Your continued use of any service after an update will indicate Your acceptance of any updated IT Services Terms. If You do not agree to any updated IT Services Terms, You must terminate Your use of the service immediately. If You provide written notice of any such termination, we will provide a refund of any pre-paid but unused fees applicable to the service. We may also modify and update Policies, Specifications, and other support materials. All such changes are effective immediately upon posting to the Online Portal and You should review such materials on a regular basis so that You will be apprised of any changes.
  13. Miscellaneous
    1. Construction. The section headings in these IT Services Terms are for convenience only and will not be deemed to be substantive; any rule of construction that ambiguities are to be resolved against the drafting party will not be applied in the interpretation of these IT Services Terms.
    2. Governing Law. This Agreement will be governed, by Connecticut law, without reference to conflicts of law principles. The parties agree that exclusive jurisdiction for any permitted actions connected with this Agreement will be in the Superior Courts of Fairfield County, Connecticut or the United States District Court for the District of Connecticut. This Agreement will not be governed by the U.N. Convention on Contracts for the International Sale of Goods.
    3. Independent Contractors. Nothing contained herein will be construed or implied to create an agency, partnership or employer and employee relationship between the Parties.
    4. Enforceability. If any provisions herein are deemed invalid, illegal, or unenforceable, the validity, legality and enforcement of the remaining provisions will not be affected or impaired.
    5. Electronic Communications. You consent to receive communications from us in electronic form and agree that this Agreement and all notices, disclosures, and other communications that we provide to You electronically satisfy any legal requirement as if in writing.
    6. Assignment. You may not assign this Agreement (including with respect to any individual service), without our express written consent. Any assignment or transfer in violation of the foregoing will be null and void. We reserve the right to assign this Agreement to any (i) affiliate; or (ii) any entity in connection with the sale, combination, or transfer of all or substantially all of the assets or capital stock or from any other corporate form of reorganisation by or of us. Subject to all of the terms and conditions hereof, this Agreement is binding upon the parties, their permitted successors and assigns.
    7. Force Majeure. Any delay in or failure of performance of either of us will not constitute a default under these IT Services Terms or give rise to any claim for damages to the extent such delay or failure of performance is caused by a force majeure event, including acts of God, fire, flood, explosion, war, strikes, loss of any necessary power or communications sources or connections, failures in or affecting the Internet or associated intranets, any computer virus or other malicious code released by a third party, the terrorist, illegal or malicious acts of a third party, changes or modifications in international, national, or industry standards or protocols, and the existence of or changes in laws prohibiting or imposing criminal penalties or civil liability for performance hereunder; provided that, any such delay does not extend beyond 30 calendar days.
    8. No Waiver. The failure to enforce or the waiver by either of us of one default or breach by the other will not be considered to be a waiver of any subsequent default or breach.
    9. Survival. The applicable sections titled Fees and Payment, Use of Other Information, Confidential Information, Warranties and Disclaimer, Limitations of Liability, Indemnification, Term and Termination, Arbitration and Class Action Waiver, Miscellaneous and Definitions will survive the termination or expiration of this Agreement.
    10. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
    11. English Language. These IT Services Terms have been drafted in the English language and such version will be controlling in all respects and any non-English version is solely for accommodation purposes.
    12. Notices. All notices required or permitted hereunder will be in writing and delivered by a nationally recognised overnight courier and will be deemed effective upon receipt as evidenced by courier delivery confirmation. Notices to You will be sent to You at the address specified in Your Order or in an Online Portal. Notices to us must be sent to P.O. Box 272-1203, Papakura, 2244. In addition, we may send any notice required or permitted hereunder to You at the email address specified in an Online Portal and such notice will be deemed effective upon our receipt of email delivery notification.
    13. Entire Agreement. These Term of Use, applicable Order and applicable Policies constitute the entire understanding of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter. No modification of this Agreement will be binding on us unless it is in writing and signed by us.
    14. Publicity. You agree that we may publicly refer to Customer on our website and sales presentations, as a customer of ours and may use the Customer’s logo for such purposes.
  14. Definitions
    1. “Administrator” means one or more persons or entities authorised by Customer to manage or use the service on Customer’s behalf, including access to and control of backed-up Data. A service may have multiple Administrators and we expressly may rely on the authorisation and instructions of any service Administrator, until we receive written instructions to the contrary.
    2. “Agreement” means an Order for a service together with and subject to these IT Services Terms.
    3. "Applicable Law" means any applicable law, rule, regulation, directive, code, order or other requirement in any jurisdiction contemplated by these IT Services Terms.
    4. “Confidential Information” means all operational written or oral information, disclosed by either party to the other that has been identified by the disclosing party as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential, but not including Feedback, Aggregate Data, Log Data or backed-up Data.
    5. “Customer” is the entity that owns the backed-up site account. References to “Customer” shall in the applicable context also refer to any Administrator acting on Customer’s behalf.
    6. “Device” means any hardware-based component of a service offering.
    7. "Enhancement" means any upgrade, update or modification to a service. All Enhancements will be subject to these IT Services Terms.
    8. "Intellectual Property Rights" means all intellectual property rights, however arising and in whatever media, whether or not registered, including patents, copyrights, trademarks, service marks, trade names, design rights, database rights, domain names, trade secrets or other proprietary rights and any applications for the protection or registration of such rights and all renewals and extensions thereof throughout the world.
    9. “Online Portal” means a web-based application or interface that contains information related to the service, including the ability to order, pay for, manage, monitor, support and/or use the service.
    10. “Order” means an order for a service that specifies such things as the backed-up Site, data storage allotment and/or number of Users. An Order may be created at the time of service, by separate written or electronic document or by an Administrator or reseller on behalf of the Customer.
    11. "Policies" means the terms and conditions applicable to order, configure, access, use, and support the service. Policies are published on an Online Portal.
    12. "Specifications" means any documentation, user manuals or other materials relating to the services. Specifications may be published on an Online Portal.
    13. “Subscription Term” means the initial and any renewal term during which Customer agrees to subscribe to a service, as specified in an Order and these IT Services Terms and Policies.
    14. “User” means an individual affiliated with Customer who Customer authorises to use or have use of the service. For purposes of this Agreement, the Customer will be the consumer of the service and the Customer is responsible for the acts and omissions of its Users.
    15. “You” means, in the applicable context, the person or entity agreeing to these IT Services Terms, either a Customer or an authorised Administrator acting on behalf of a Customer.
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