These Terms of Service for Cloud Region Pty. Ltd. (this “Agreement”) is a legal agreement between you (either an individual or an entity that you are representing, hereinafter “you”) and Cloud Region Pty. Ltd. and its suppliers and licensors.
Terms of Service
(1) Terms of Service
This Agreement commences on the date it is signed by both parties and will continue until terminated in accordance with this Agreement.
(2) Commencement of Services
We will begin providing Services to you in accordance with the timeframe that the parties agree in writing or, if no timeframe is agreed, within a reasonable time.
(3) Our Commitment to You
We will always:
a) provide the Services to you with due care and skill;
b) do our best to ensure that the Services are reliable and operate free of faults (although we do not guarantee that the Services will be continuous or fault free);
c) meet the service levels set out in Schedule 2 and in the Service Descriptions; and
d) ensure that all work that we perform in connection with the provision of the Services is carried out by competent and suitably qualified personnel and in a professional manner.
From time to time, we may temporarily suspend or restrict a service so that we can carry out maintenance and development work on the Network. We will always try to make sure that such suspensions or restrictions take place outside normal business hours and that we give you as much advance notice as possible.
Subject to clauses 5.5, 10.3 and 23.4, if any Service for which a fixed Charge is payable by you is unavailable for more than twenty-four 24 consecutive hours in any one calendar month then we will, if you ask us to, credit or refund an amount equal to the fixed charges that would have otherwise been payable over the period of unavailability.
(4) Your Commitment to Us
a) not to use the Services in any way which is unlawful;
b) not to use the Services in any way which could interfere with or damage our Network, any other operator’s network, or another customer’s enjoyment of our services;
c) to follow our reasonable instructions about the use of the Services; and
d) to only use the Services for the purposes for which they are provided.
You will make sure that all information you give to us is complete and accurate; this includes advising us promptly if you change premises or postal address.
You will, if we ask you to, obtain any third party authorization, license or consent that we reasonably require in connection with the provision of the Service (such as building consent).
You acknowledge that you are responsible for any use of the Services by any third party, whether authorised by you or not.
If you breach clause 5.1 and cause a fault in the operation of a Service then you will, if we ask you to, pay us the reasonable costs of restoring that Service.
We may charge you on a time and materials basis for diagnosing and/or fixing faults reported by you that fall outside our responsibilities under this Agreement or are not attributable to our Equipment, software or network.
(5) Invoicing & Payment
You agree to pay our Charges for all the Services we provide to you, irrespective of who ultimately uses them. The Charges will apply from the date you are connected. You also agree to pay any GST that may be payable in addition to the Charges.
We will invoice you at approximately monthly intervals for the Services we provide to you. Fixed charges will normally be invoiced in advance and other charges will normally be invoiced in arrears.
You agree to pay each invoice by the Payment Date and without set-off, counterclaim or deduction.
If any invoiced amount remains unpaid after the Payment Date we may charge you interest at the Late Payment Interest Rate on that amount until it is paid in full.
Part payment of your invoice will not amount to a full and final settlement unless we have agreed to this in writing.
(6) Disputed Accounts
If you believe that an invoice contains a mistake, please contact us as soon as possible and we will investigate the matter. You may withhold payment of the disputed amount, although you must still pay any undisputed amount by the Payment Date.
If we agree that we have made a mistake then we will correct the invoice immediately. If we find that there is no mistake, and the Payment Date has already passed, you agree to pay the outstanding amount straight away.
(7) Credit Arrangements
We are not obliged to begin providing Services to you until we have satisfied ourselves that you will be able to pay the Charges. If we have already begun providing Services to you and we then receive an unsatisfactory credit check, we may stop providing any Services.
We may at any time require you to make an advance payment or provide some other form of security to cover amounts payable by you under this Agreement. If this Agreement is terminated, we will return to you any security not required to cover outstanding amounts.
(8) Our Equipment
If you have asked us to provide Services that require location of our Equipment on your premises then you agree to give our representatives safe access to your premises so that we can install, inspect, maintain, replace or remove our Equipment. If you are in rented premises then you will obtain the written permission of the owner that we are authorised to access, and locate our Equipment on, your premises for these purposes.
We will always make sure that our Equipment is safe, free from defects and fit for the purpose for which it is provided.
a) to provide a safe and secure operating environment for our Equipment;
b) to take reasonable precautions to protect our Equipment from radio or electrical interference and power fluctuations;
c) not to damage or interfere with our Equipment;
d) to pay our charges for repairing or replacing any of our Equipment that is lost or damaged while located on your premises; and
e) if we ask you, to obtain and maintain insurance (to a value agreed by us) with a reputable insurance company against any loss or damage to our Equipment while under your control. You will ensure that our interest is noted on the policy.
If our Equipment is no longer required, or if you damage or interfere with our Equipment, then we may remove it from your premises.
(9) Your Equipment
You will ensure that all of your Equipment that is connected to the Network and/or to our Equipment is telepermitted and is installed in accordance with our specifications.
You agree to follow our reasonable instructions about modifications that you may need to make to your Equipment so that you can use the Services.
Notwithstanding anything else in this Agreement, if your Equipment causes a fault in the operation of a Service then you will, if we ask you to, pay us the reasonable costs of restoring that Service.
(10) Numbers, Addresses & Other Codes
We may allocate phone numbers, electronic addresses and other codes to you. You will not have any ownership rights in those numbers, addresses and/or codes and you may not transfer them to anyone else.
If required by law or if it is necessary to do so for operational reasons, we may change any phone number, electronic address or code allocated to you. However, we will always give you as much notice as reasonably possible of any such change.
We may suspend the provision of Services at any time if you breach this Agreement. We will always give you five (5) Working Days’ notice of our intention to suspend, unless you breach clause 5.1, in which case we may suspend Services without notice.
We may require you to pay a reconnection charge as a condition of lifting any such suspension.
We may stop providing any Service or terminate this Agreement after the expiry of the Initial Term (if any) by giving you sixty (60) days’ notice in writing.
Subject to clause 14.2, you may give up any Service or terminate this Agreement at any time, by giving us sixty (60) days’ notice in writing.
Notwithstanding clauses 13.1 and 13.2, either party may terminate all or part of this Agreement at any time by giving the other party notice in writing where the other party: a) commits a material breach of this Agreement which is incapable of being rectified; b) commits a material breach of this Agreement which is not rectified within 30 days of written notice of that breach having been given to the other party by the terminating party; c) (or its directors or principals) goes into liquidation, bankruptcy or receivership (or it appears that any of these events is likely to happen); d) has a receiver or statutory manager appointed over any or all of its assets; or e) is removed from the Companies Register (other than as a result of a solvent amalgamation), is dissolved or dies.
(13) Consequences of Termination
When this Agreement is terminated:
a) you will be Disconnected;
b) clauses 13 to 23 (inclusive) together with the other provisions of this Agreement which are required to give effect to those clauses, will remain in effect;
c) each party must immediately return to the other any information, equipment or any other item which is in its possession and which belongs to the other party; and
d) we may access your premises to remove our Equipment. If we are unable to gain access we may invoice you and you agree to pay the standard replacement charge for the Equipment in question.
If you give up any Service or terminate this Agreement under clause 13.2 or we terminate all or part of this Agreement under clause 13.3 prior to the expiry of the Initial Term, then we may require you to pay:
a) an amount equal to the value of the fixed Charges that would have otherwise been payable from the date of termination to the end of the Initial Term; and
b) if we have agreed to waive a set-up charge, the amount of that set-up charge multiplied by the number of months remaining in the Initial Term at the date of termination divided by the total number of months in the Initial Term; and
c) if we have agreed to apply a discount to your usage charges, the actual value of the discount received by you under this Agreement less the value of the discount that we advise you that you would have otherwise received had we agreed to an initial term with an expiry date corresponding with the date of termination.
Termination and the rights set out in clause 14.2 are without prejudice to any other rights or obligations either party may have under this Agreement.
(14) Confidentiality, Publicity & Privacy
Each party agrees not to reveal any information concerning the provisions of this Agreement or information provided under it to any third party, other than:
a) as required by law or by the rules of any stock exchange;
b) to its employees, agents and contractors in order to give effect to the purpose for which the information was provided;
c) where the information is already in the public domain (but not where it is in the public domain as a result of a breach of this clause); or
d) with the other party’s written consent.
Each party agrees not to issue any press release or public announcement concerning this Agreement without the other party’s prior written approval.
If you are an individual, you agree that we can collect personal information about you and that we can hold and use that information for a range of lawful purpose connected with our business operations, such as checking your credit worthiness, providing the Services and keeping you informed about new products and services. You may ask to see the information that we hold about you at any time and for any errors in that information to be corrected.
(15) Intellectual Property Rights
You acknowledge that all rights to intellectual property contained in the Services and in our Equipment (including any improvements or changes to any Service or to our Equipment) belong to us or to our licensors, provided that you are licensed by us to use our intellectual property for the purposes, and in accordance with the terms, of this Agreement. These intellectual property rights include, but are not limited to, all copyright, trademark and design rights relating to the Services.
If we provide you with any software in connection with the provision of the Services, you agree not to copy, modify or reverse assemble the software; and that you are licensed by us to use the software only for the purposes, and in accordance with the terms, of this Agreement and any terms upon which the software is ordinarily licensed or which we notify to you.
(17) Compensation & Liability
You acknowledge that you are acquiring the Services for the purposes of a business and the Consumer Guarantees Act 1993 does not apply.
We will compensate you for any physical damage, which we cause to your property through our negligence, provided that our maximum liability to you under this clause will be $10,000 for any event or series of related events and $20,000 for all events occurring in any twelve (12) month period.
We will compensate you for any loss, costs or damages which you incur as a direct result of our failure to meet any of our obligations under this Agreement or for any negligence by us in relation to the supply of the Services, provided that our maximum liability to you under this clause will be the value of three (3) average months’ Services used by you under this Agreement for all events occurring in any twelve (12) month period.
Notwithstanding any other clause in this Agreement we will not be liable to you in tort (including negligence), contract or otherwise for any economic loss, loss of profit, loss of savings, loss of anticipated profit or savings, or for any indirect, special or consequential loss or damage, however caused.
No other network operator and/or third party supplier (including their officers, employees, contractors and agents) will be liable to you for loss or damage of any kind arising from your use of the Services. This clause creates an obligation that other network operators and/or suppliers can enforce as a defense to any claim.
Apart from the warranties expressly given to you in this Agreement, all other warranties, express or implied, are excluded (to the extent permitted by law).
(18) Dispute Resolution
If any dispute arises out of this Agreement, neither party is to commence proceedings relating to the dispute (except where urgent interlocutory relief is sought) unless that party has first complied with this clause 19.
A party claiming a dispute has arisen is to give written notice to the other party specifying the nature of the dispute. On receipt of that notice, the parties will use all reasonable endeavours to resolve the dispute by discussion, negotiation or other informal means.
If the parties do not resolve the dispute within ten (10) Working Days of the receipt of the notice then either party can, by writing to the other, require that the dispute be mediated in accordance with the standard mediation agreement of LEADR New Zealand Incorporated (Lawyers Engaged in Alternative Dispute Resolution), and the Chair of LEADR will select the mediator and determine the mediator’s fee.
Any notice given pursuant to this Agreement must be in writing and be delivered, or sent by post or by facsimile, to the other party’s contact address. Our address for any such notice is PO BOX 302-329, North Harbour, 0751, Auckland or facsimile no. (09) 929 3119, Attention: Accounts.
Any such notice will be assumed to have been delivered in the case of delivery, when received; in the case of facsimile, when a correct transmission confirmation slip is received, or in the case of posting, on the second Working Day after the date of posting.
(20) Entire Agreement & Variation
This Agreement supersedes all prior discussions and agreements that you may have had with Cloud Region Pty. Ltd. for the provision of the Services.
No variation or waiver of any provision of this Agreement shall be recognised or binding unless it is in writing and signed by authorised representatives of both parties.
Service Level Agreement
Cloud Region HelpDesk
The Cloud Region Helpdesk is your primary point of contact. Through the Helpdesk, we will:
a) provide you with a fault logging facility;
b) investigate and manage faults through to resolution;
c) update you on progress with fault resolution;
d) escalate unresolved faults to the appropriate Cloud Region Pty. Ltd. representative;
e) respond to MAC requests;
f) respond to service request;
g) respond to billing inquiries Fault Management;
We will use all reasonable endeavors to resolve any faults for which we are responsible in accordance with the resolution times specified below. However, we do not guarantee that these resolution times will always be met. Faults will be assigned a priority rating depending on the impact that the fault is having on the Services. We will determine that priority rating in consultation with you. Priority ratings are as per the Priority levels as set in our Escalation Table. Proactive Alarms.
Some designated Services and Equipment that are under continuous surveillance by us may automatically generate a range of alarm conditions. In that case we may, at our discretion, advise you of such faults and generate a “trouble ticket” for service response. In the case of priority one faults, we will use all reasonable endeavors to respond to those faults within 20 minutes of the alarm being generated, provided that the alarm is generated within Service Hours. We will inform you as soon as practical with the escalation procedure and the fault ticket number.
Helpdesk Contact Details
Telephone: 07 3177 6322
Facsimile: (09) 929 3119 Email: firstname.lastname@example.org
Please be prepared to provide the following information:
a) your business name and account number
b) a full description of the fault, including the impact on your business
c) contact details for the individual to be advised of progress and resolution
d) arrangements for accessing the affected site (if required) Moves, Adds & Changes (MACs)
A MAC is an ad hoc rearangement, deletion or addition of standard service components or features. MAC requests must be made by those persons you have notified us in writing as being authorised to initiate such requests. Within three (3) Working Days of receipt of a written MAC request, we will advise you of the charge and likely completion time for the work (unless the work involves Telecom tails, in which case, the likely completion date will be provided within seven (7) Working Days). We will update you on any changes to the likely completion time. Completion times will vary depending on the complexity of the MAC, starting at 3 Working Days for simple MAC’s, to longer time frames for complex MAC’s. The implementation of additional Services, relocation of existing Sites, addition of new sites or activities that require specific design, consulting or project management effort will be deemed to be “Additional Services”.
Cloud Region Pty. Ltd. operates an automatic escalation process within our Fault Management Centre for all service issues. If you ask us to, the Cloud Region Pty. Ltd. representative who is coordinating resolution of the fault will escalate any unresolved faults to the following personnel: Level 1 Group Team Leader – Complex Faults Level 2 Group Manager – Complex Faults Level 3 Department Manager – Fault Management Centre Customer Planned Outages
Please provide us with reasonable notice of any activity that you are planning that may cause an interruption in the Services. Response Times:
Critical Impact Definition: a catastrophic fault, where a minimum of 50% of users at a particular Site cannot use a particular Service.
Resolution Time: four (4) hours during Service Hours (or eight (8) hours during Service Hours where fault is assigned to a third party network operator for resolution.
Site Visits: Metro Sites – within four (4) hours during Service Hours or eight (8) hours during Service Hours where the fault is assigned to a third party network operator for resolution
Regional Sites – eighty (80) percent within eight (8) hours, ninety (90) percent within sixteen (16) hours Other Australian Sites – eighty (80) percent within twelve (12) hours, ninety (90) percent within twenty-four (24) hours.
Progress Reports: At one (1) hour intervals during Service Hours following our initial response.
Major Impact Definition: up to fifty (50) percent of users at a particular site cannot use a particular Service.
Resolution Time: eight (8) hours during Service Hours. Site Visits:
Metro Sites – within four (4) hours during Service Hours or eight (8) hours during Service Hours where the fault is assigned to a third party network operator for resolution.
Regional Sites – eighty (80) percent within eight (8) hours, ninety (90) percent within sixteen (16) hours Other Australian Sites – eighty (80) percent within twelve (12) hours, ninety (90) percent within twenty-four (24) hours .
Progress Reports:At two (2) hourly intervals during Service Hours
Minor Impact Definition: repeated quality problems, intermittent faults or degraded service that has no major impact.
Resolution Time: five (5) working days.
Progress Reports: at eight (8) hourly intervals during Service Hours.