RexNetworks TERMS OF SERVICE This Agreement is between you as our Subscriber and RexNetworks Ltd and it sets forth the terms and conditions under which you agree to use and we agree to provide the Service.
THIS IS A CONTRACT. PLEASE READ THESE TERMS CAREFULLY. IF YOU DO NOT AGREE TO THESE TERMS DO NOT USE THE SERVICE AND CONTACT US IMMEDIATELY TO TERMINATE IT.
1. Term and Acceptance of Agreement; Agreement Terms Generally Included:
The term of this Agreement will be either month-to-month or for the term specified for the Service or Bundled Service plan you select (the “Term”). The Term begins when you accept this Agreement and ends when you or we terminate this Agreement as permitted herein. Acceptance by you of this Agreement occurs upon the earlier of:
(a) your acceptance of this Agreement electronically during an online order, registration or when performing Standard Installation of the Equipment or the Software;
(b) your use of the Service; or
(c) your retention of the Equipment or the Software we provide beyond thirty (30) days following delivery.
If you change Service plans, your term and monthly rate may change (depending on the plan you select), but all other provisions of this Agreement will remain in effect unless otherwise noted. This Agreement consists of the terms below, plus
(a) the specific elements of your Service or Bundled Service plan (including the plan’s pricing, and duration, all as described in the information made available to you when placing and confirming your order);
(b) our Acceptable Use Policy (Attachment A) and Additional Services Terms (Attachment B);
(c) Applicable Early Termination Fees (“ETF”) schedule (Attachment C);
(d) Other Applicable Fees (Attachment D);
(e) our Service Level Agreement (“SLA”) (Attachment E),
You can also receive a paper copy of this Agreement by emialing us at [email protected].
2. DEFINITIONS AND CHANGES TO SERVICE:
“Broadband Services” means Satellite broadband or Line-of-Sight Wireless Broadband or DSL-based Internet services (whichever applies). RexNetworks DSL-based Internet service is also known as “Asynchronous Digital Subscribers Line” (“ADSL” or “ADSL2+”). Bundled Service(s)” means a combination or “bundle” of a Broadband Service with one or more other eligible RexNetworks services, including but not limited to RexNetworks Voice Over Internet Protocol (“VOIP”), RexNetworks Line-of-Sight Wi-Fi or RexNetworks Hotspot Service. “Content” means content provided by RexNetworks or its third party licensors or suppliers and accessible on the Service, including without limitation images, photographs, animations, video, audio, music, and text in any format. “Equipment” means the modem, antenna, BUC, LNB, router and/or other equipment provided by RexNetworks for use with the Service. “Standard Installation” means and consists of: FOR SATELLITE BROADBAND INSTALLATION – Fitting standard 800mm mount and dish to roof; laying up to 15m of cable to indoor unit. Connect one computer via CAT-5 cable length up to 2m long; configuring one computer to connect to the Internet; running speed test to confirm throughput, FOR LINE-OF-SIGHT WIRELESS BROADBAND INSTALLATION – Fitting standard 2m roof mount and outdoor unit to roof; laying up to 15m of cable to indoor unit; connecting one computer via CAT-5 cable length up to 2m; configuring one computer to connect to the Internet, and running speed test to confirm throughput. “Service” means all RexNetworks Broadband Service and Wi-Fi wireless Hotspot Internet access services (where applicable), Software, Equipment, Content, Additional Services as defined in Attachment B, technical support, email, domain name server (“DNS”) and related services, RexNetworks Web Sites and other products and services provided by RexNetworks under the pricing plan applicable to your Service. The Service does not include voice telephony services. “RexNetworks Web Site(s)” mean the sites located at http://rexnetworks.co.nz, which is comprised of various web pages, tools, information, software, content, and features operated by RexNetworks.
3. REVISIONS TO THIS AGREEMENT:
From time to time we will make revisions to this Agreement and the policies relating to the Service. We will provide notice of such revisions by posting revisions to the Website Announcements page, or sending an email to your primary email address specified in your account, or both. You agree to visit the Announcements page periodically to review any such revisions. We will provide you with at least thirty (30) days notice prior to the effective date of any increases to the monthly price of your Service or Bundled Service plan (excluding other charges as detailed in Sections 8.1(a)-(d)); revisions to any other terms and conditions shall be effective on the date noted in the posting and/or email we send you. By continuing to use the Service after revisions are effective, you accept and agree to abide by them.
4. AUTHORIZED USER, ACCOUNT USE, AND RESPONSIBILITIES:
You acknowledge that you are eighteen (18) years of age or older and that you have the legal authority to enter into this Agreement. You agree promptly to notify RexNetworks whenever your personal or billing information changes. You are responsible for all use of your Service and account, whether by you or someone using your account with or without your permission, including all secondary or sub-accounts associated with your primary account, and to pay for all activity associated with your account. You agree to comply with all applicable laws, regulations and rules regarding your use of the Service and to only use the Service within New Zealand (unless otherwise permitted by this Agreement). Restrictions on Use. The Service is a consumer grade service and is not designed for or intended to be used for any commercial purpose. You may not resell the Service, use it for high volume purposes, or engage in similar activities that constitute such use (commercial or non-commercial). If you subscribe to a Broadband Service, you may connect multiple computers/devices within a single home to your modem and/or router to access the Service, but only through a single RexNetworks-issued IP address. You also may not exceed the bandwidth usage limitations that RexNetworks may establish from time to time for the Service, or use the Service to host any type of server. Violation of this section may result in bandwidth restrictions on your Service or suspension or termination of your Service.
6. AVAILABILITY OF AND CHANGES TO SERVICE:
Service and Bandwidth Availability and Speed. The Service you select may not be available in all areas or at the rates, speeds, or bandwidth generally marketed, and some locations may not qualify for the Service even if initial testing showed that your line was qualified. We will provision qualified ADSL lines or Wireless frequency slots or Satellite frequency slots at the rate specify on the plan or maximum line rate available to your location based on our standard line qualification procedures. Bandwidth is provided on a per-line (not a per-device) basis. The bandwidth available to each device connected to the network will vary depending upon the number, type and configuration of devices using the Service and the type of use (e.g. streaming media), among other factors. The speed of the Service will vary based on network or Internet congestion, your computer configuration, weather conditions, changes in atmospheric conditions, the condition of your telephone line and the wiring inside your location, among other factors. We and our suppliers reserve the right, at any time, with or without prior notice to you, to restrict or suspend the Service to perform maintenance activities and to maintain session control. Changes to Service or Features. RexNetworks reserves the right to change any of the features, Content or applications of the Service at any time with or without notice to you.
7. SOFTWARE LICENSES AND THIRD PARTY SERVICES:
We may provide you, for a fee or at no charge, software for use in connection with the Service which is owned by RexNetworks or its third party licensors, providers and suppliers (“Software”). We reserve the right periodically to update, upgrade or change the Software remotely or otherwise and to make related changes to the settings and software on your computer or Equipment, and you agree to permit such changes and access to your computer and Equipment. You may use the Software only in connection with the Service and for no other purpose. Certain Software may be accompanied by an end user license agreement (“EULA”) from RexNetworks or a third party. Your use of the Software is governed by the terms of that EULA and by this Agreement, where applicable. You may not install or use any Software that is accompanied by or includes a EULA unless you first agree to the terms of the EULA. For Software not accompanied by a EULA, you are hereby granted a revocable, non-exclusive, non-transferable license by RexNetworks or its applicable third party licensor(s) to use the Software (and any corrections, updates and upgrades thereto). You may not make any copies of the Software. You agree that the Software is confidential information of RexNetworks or its third party licensors and that you will not disclose or use the Software except as expressly permitted herein. The Software contains copyrighted material, trade secrets, patents, and proprietary information owned by RexNetworks or its third party licensors. You may not de-compile, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the Software, otherwise reduce the Software to a human readable form, modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense or distribute copies of the Software, or otherwise transfer the Software to any third party. You may not remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Software. You are not granted any title or rights of ownership in the Software. You acknowledge that this license is not a sale of intellectual property and that RexNetworks or its third party licensors continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the Software and related documentation, as well as any corrections, updates and upgrades to it. The Software may be used in New Zealand only, and any export of the Software is strictly prohibited. Your license to use the Software or any Additional Services will remain in effect until terminated by RexNetworks or its third party licensors, or until your Service is terminated. Upon termination of your Service, you must cease all use of and immediately delete the Software from your computer. If you subscribe to or otherwise use any third party services offered by RexNetworks, your use of such services is subject to the EULA of that third party provider. Violation of those terms may, in our sole discretion, result in the termination of your Service. All title and intellectual property rights (including without limitation, copyrights, patents, trademarks and trade secrets) in and to the RexNetworks Web Sites (including but not limited to, related software, images, photographs, animations, video, audio, music, text, and content), are owned by RexNetworks, its affiliates or licensors. All title and intellectual property rights in and to the information and content which may be accessed through use of the RexNetworks Web Sites are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement does not grant you any rights to use such content, nor does it grant any rights to the RexNetworks Web Sites, other than the right to use the RexNetworks Web Sites according to the terms of the Agreement.
8. PRICING; BILLING: CHANGES TO SERVICE PLANS AND PAYMENT:
Prices and Fees; Billing. You agree to pay the fees applicable to your Service or Bundled Service, either on a monthly or prepaid basis, as applicable, and to pay:
a) applicable taxes,
c) recovery fees,
d) telephone charges,
e) activation fees,
f) installation fees,
g) de-installation fees,
h) re-installation fees,
i) re-activation fees,
j) data over usage fees,
k) late payment fees,
l) set-up fees,
m) equipment charges,
n) ETFs, and
o) other recurring and nonrecurring charges associated with the Service plan you have selected.
The taxes, fees and other charges detailed in a)-d) above may vary on a monthly basis. Surcharges and recovery fees are not taxes and are not required by law, but are set by RexNetworks and may change. You also agree to pay any additional charges or fees applied to your account, including interest and charges due to insufficient credit or insufficient funds. Non-recurring charges such as set up, activation and installation fees, and equipment charges, will be included in your first bill. Monthly Service and Bundled Service recurring charges will be billed one month in advance; any usage charges will be billed in arrears. Pre-paid pricing plans for Additional Services will be billed in advance. Based on your election and subject to our approval, RexNetworks or its agent will bill you directly. Billing for Broadband Services will automatically begin on the date installation of your Broadband Service is complete (“Installation Completion Date”). Billing for Additional Services will begin on your Installation Completion Date if you are also ordering a new Broadband Service. Otherwise, billing for Additional Services will begin upon submission of your order, unless otherwise noted. We may, at our election, waive any fees or charges. If you cancel any component of a Bundled Services plan, the monthly charges for the remaining services on your account will automatically convert to the applicable existing, non-discounted month-to-month service rate. Plans with Minimum Terms. If you choose a Service or Bundled Services plan with a minimum term commitment, you agree to maintain your Service for the term of that plan (a “Term Plan”). For Broadband Services, your Term Plan begins on the later of:
(a) the date you change your existing Broadband Service plan to a Term Plan; or
(b) your Installation Completion Date; for Bundled Services, your Term Plan begins once all Bundled Services have been provisioned.
At the end of any Term Plan you may be given the option to select a new Term Plan. If you do not select a new Term Plan, your Service will automatically convert to a month-to-month Service plan at a monthly fee that may be higher than your current rate. If you select a new Term Plan, the terms of that plan will apply. When you sign up to a plan of your choice it is up to you the customer to initiate a change with regard to any new plan should you wish to up or down grade the plan that you are currently on, there are new plans launched from time to time at various rates which may be higher or lower than the existing plan you are currently on, for the same GBs as your current plan. If you are on a monthly plan with no fixed term you are eligible to up or down grade your plan (Monthly Plan) any time with notice in writing. The administration fee $35+GST will apply to up or down grade your plan. All current plan charges must be cleared, prior to any plan up or down grade. Should you wish to change your plan to take advantage of new rates that are associated with the release of new plans the account holder must contact our support team with your request before the account can be changed. Monthly plans are designed to give the customer the flexibility of taking advantage of new plans as they are released to the market, we recommend that you visit our website from time to time to check you are on the best plan available. RexNetworks will not amend your plan with out the express written request of the account holder. Discontinuation of Service for Nonpayment. We may discontinue your Service without notice if you fail to make payment when due. Late Fees. If any portion of your bill is not paid by the due date, RexNetworks may charge you a late fee on unpaid balances and may also terminate or suspend your Service without notice. The late fee will be $30 per month, or the highest rate permitted by law. If RexNetworks uses a collection agency or legal action to recover monies due, you agree to reimburse us for all expenses we incur to recover such monies, including solicitors’ fees. Limitation on Special Pricing Promotions. You may only take advantage of one special pricing promotion during any consecutive twelve (12)-month period. Refundable Deposit. We may require that you provide us with a refundable deposit, which will be specified at the time of your order (“Subscriber Deposit”). We may also require an additional deposit after activation of the Service if you fail to pay any amounts when due. Within ninety (90) days after termination of your Service, we will return your Subscriber Deposit, less any unpaid amounts due on your account, including any amounts owed for unreturned or damaged Equipment. Amounts held on deposit will not accrue interest except as required by law. Credit Related Matters. We may evaluate your credit history before modifying or providing you Service. In order to establish an account with us and/or obtain or modify Service, we may obtain a report from a consumer credit agency or exchange information with our affiliates in connection with determining your creditworthiness. If you fail to pay your bill, we may submit a negative credit report to a credit reporting agency, which will negatively affect your credit report.
9. TERMINATION OR SUSPENSION OF SERVICE:
– Termination of Service.
Subscribers with Month-to-Month Accounts. If you are a month-to-month Service customer, you may terminate this Agreement at any time by giving 30 Days notice to RexNetworks as set forth in this Agreement. Termination by you will be effective upon receipt of your notice to us. Activation or set-up fees paid at the initiation of your Service, if any, are not refundable. Subscribers with Term Plans; Early Termination Fee. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, IF YOUR BROADBAND SERVICE IS TERMINATED BY YOU OR BY US BEFORE COMPLETING YOUR TERM PLAN, THEN YOU AGREE TO PAY RexNetworks THE ETF SET FORTH IN THE PRICING PLAN YOU HAVE CHOSEN. If you terminate Service at your location, your existing Term Plan cannot be carried over to a new Service location, unless prior arrangement has been agreed upon by RexNetworks. Termination and/or Suspension by RexNetworks.
RexNetworks reserves the right to change, limit, terminate, modify or temporarily or permanently cease providing the Service or any part of it with or without prior notice if we elect to change the Service or a part thereof or if you violate the terms of this Agreement. If RexNetworks terminates your Service under this Section 9.1.3, you must immediately stop using the Service and you will be responsible for the applicable fees and/or Equipment charges set forth in Sections 8.5, 9.1.1, or 9.1.2. If the termination is a result of violation by you of the terms of this Agreement, you also shall be liable to pay the ETF. If RexNetworks terminates or ceases to offer service to your location, you shall not be liable to pay the ETF. If your Service is reconnected, a reconnection fee may apply.
– Deletion of Data upon Termination.
YOU AGREE THAT IF YOUR SERVICE IS TERMINATED FOR ANY REASON, RexNetworks HAS THE RIGHT TO IMMEDIATELY DELETE ALL DATA, FILES AND OTHER INFORMATION (INCLUDING EMAILS, ADDRESS BOOK AND WEB STORAGE CONTENT) STORED IN OR FOR YOUR ACCOUNT WITHOUT FURTHER NOTICE TO YOU.
– Return of Equipment upon Termination.
If your Service is terminated for any reason you must return the Equipment to RexNetworks or you will be charged for the Equipment unless you own or purchased the equipment.
10. MANAGEMENT OF YOUR DATA AND COMPUTER:
Your Responsibilities Regarding Management of Your Computer and Data. You are solely responsible for obtaining, maintaining and updating all equipment and software necessary to use the Service, and for management of your information, including but not limited to back-up and restoration of your data. YOU AGREE THAT RexNetworks IS NOT RESPONSIBLE FOR THE LOSS OF YOUR DATA OR FOR THE BACK-UP OR RESTORATION OF YOUR DATA REGARDLESS OF WHETHER THIS DATA IS MAINTAINED ON OUR SERVERS OR YOUR DEVICE(S). YOU SHOULD ALWAYS BACK-UP ANY IMPORTANT INFORMATION SEPARATELY FROM DATA STORED ON RexNetworks OR ANY THIRD PARTY’S SERVERS. Content and Data Management by RexNetworks. We reserve the right to:
(a) use, copy, display, store, transmit and reformat data transmitted over our network and to distribute such content to multiple RexNetworks servers for back-up and maintenance purposes; and
(b) block or remove any unlawful content you store on or transmit to or from any RexNetworks server.
We do not guarantee the protection of your content or data located on our servers or transmitted across our network (or other networks) against loss, alteration or improper access. Your Responsibilities Regarding Security. You agree that you are solely responsible for maintaining the security of your computer(s) and data, including without limitation, encryption of data and protection of your User ID, password and personal and other data. WE STRONGLY RECOMMEND THE USE (AND APPROPRIATE UPDATING) OF COMMERCIAL ANTI-VIRUS, ANTI-SPYWARE AND FIREWALL SOFTWARE. Monitoring of Network Performance by RexNetworks. RexNetworks automatically measures and monitors network performance and the performance of your Internet connection and our network. We also will access and record information about your computer and Equipment’s profile and settings and the installation of software we provide. You agree to permit us to access your computer and Equipment and to monitor, adjust and record such data, profiles and settings for the purpose of providing the Service. You also consent to RexNetworks monitoring of your Internet connection and network performance, and to our accessing and adjusting your computer settings, as they relate to the Service, Software, or other services, which we may offer from time to time. We do not share information collected for the purpose of network or computer performance monitoring or for providing customized technical support outside of RexNetworks or its authorized vendors, contractors and agents.
11. LIMITATIONS ON USE OF THE SERVICE:
You acknowledge and agree that RexNetworks:
(a) is not responsible for invalid destinations, transmission errors, or the corruption of your data; and
(b) does not guarantee your ability to access all websites, servers or other facilities or that the Service is secure or will meet your needs.
You acknowledge that the Service will allow access to information which may be sexually explicit, obscene or offensive, or otherwise unsuitable for children. You agree that the supervision of use of the Service by children is your responsibility and that RexNetworks is not responsible for access by you or any other users to objectionable or offensive content. RexNetworks STRONGLY RECOMMENDS THE USE OF COMMERCIALLY AVAILABLE CONTENT FILTERING SOFTWARE. You understand and agree that if you type a nonexistent or unavailable Uniform Resource Locator (URL), or enter a search term into your browser address bar, RexNetworks may present you with an advanced web search page (“AWS Page”) containing suggested links based upon the query you entered in lieu of your receiving an NXDOMAIN or similar error message. RexNetworks provision of the AWS Page may impact applications that rely on an NXDOMAIN or similar error message and may override similar browser-based search results pages. You are not authorized to use any RexNetworks name or mark as a hypertext link to any RexNetworks Web site or in any advertising, publicity or in any other commercial manner without the prior written consent of RexNetworks Licensing Company. You agree that RexNetworks assumes no responsibility for the accuracy, integrity, quality completeness, usefulness or value of any Content, advice or opinions contained in any emails, message boards, chat rooms or community services, or in any other public services or social networks, and that RexNetworks does not endorse any advice or opinion contained therein, whether or not RexNetworks provides such service(s). RexNetworks does not monitor or control such services, although we reserve the right to do so. You represent that when you transmit, upload, post or submit any content, images or data using the Service you have the legal right to do so and that your use of such data or content does not violate the copyright or trademark laws or any other third party rights. Websites linked to or from the Service are not reviewed, controlled, or examined by RexNetworks and you acknowledge and agree that RexNetworks is not responsible for any losses you incur or claims you may have against the owner of third party websites. The inclusion of any linked websites or content from the Service, including websites or content advertised on the Service, does not imply endorsement of them by RexNetworks. If you choose to access the RexNetworks Web Sites from locations outside New Zealand, you do so on your own initiative and you are responsible for compliance with all applicable local use controls, laws and regulations, including those relating to the transmission of technical data exported from or imported to New Zealand or the country in which you reside. RexNetworks makes no representation that materials on the RexNetworks Web Sites are appropriate or available for use in locations outside New Zealand and accessing them from territories where their contents are illegal is prohibited.
12. WARRANTIES AND LIMITATION OF LIABILITY:
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE SUPPLIED HEREUNDER IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY EQUIPMENT PROVIDED BY RexNetworks (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH EQUIPMENT), RexNetworks (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES) (COLLECTIVELY THE “RexNetworks PARTIES”), ITS THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS, DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS FOR THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, COMPATIBILITY OF SOFTWARE PROGRAMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. ALSO, THERE IS NO WARRANTY OF WORKMANLIKE EFFORT OR LACK OF NEGLIGENCE. NO ADVICE OR INFORMATION GIVEN BY RexNetworks OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY WITH RESPECT TO ADVICE PROVIDED. RexNetworks DOES NOT WARRANT OR GUARANTEE THAT SERVICE CAN BE PROVISIONED TO YOUR LOCATION, OR THAT PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF RexNetworks HAS ACCEPTED YOUR ORDER FOR SERVICE. THE PROVISIONING OF SERVICE IS SUBJECT TO NETWORK AVAILABILITY, GEOGRAPHICS LOCATION, CIRCUIT AVAILABILITY, LOOP LENGTH, THE CONDITION OF YOUR TELEPHONE LINE AND WIRING INSIDE YOUR LOCATION, AND YOUR COMPUTER/DEVICE CONFIGURATION AND CAPABILITIES, AMONG OTHER FACTORS. IN THE EVENT YOUR LINE IS NOT PROVISIONED FOR ANY REASON, NEITHER YOU NOR RexNetworks SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT (OTHER THAN YOUR OBLIGATION TO RETURN ANY RexNetworks-PROVIDED EQUIPMENT). RexNetworks DOES NOT WARRANT THAT THE SERVICE OR EQUIPMENT PROVIDED BY RexNetworks WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, DISABLING CODE OR CONDITIONS, OR THE LIKE. RexNetworks SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. IN NO EVENT SHALL THE RexNetworks PARTIES OR RexNetworks THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS BE LIABLE FOR:
(A) ANY INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE, LOSS OF PROGRAMS OR INFORMATION OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICE, OR RELIANCE ON OR PERFORMANCE OF THE SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF RexNetworks HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR
(B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY. THE LIABILITY OF THE RexNetworks PARTIES, OR (SUBJECT TO ANY DIFFERENT LIMITATIONS OF LIABILITY IN THIRD PARTY END USER LICENSE OR OTHER AGREEMENTS) OUR THIRD PARTY LICENSORS, PROVIDERS OR SUPPLIERS, FOR ALL CATEGORIES OF DAMAGES SHALL NOT EXCEED A PRO RATA CREDIT FOR THE MONTHLY FEES (EXCLUDING ALL NONRECURRING CHARGES, REGULATORY FEES, SURCHARGES, FEES AND TAXES) YOU HAVE PAID TO RexNetworks FOR THE SERVICE DURING THE SIX (6) MONTH PERIOD PRIOR TO WHEN SUCH CLAIM AROSE, WHICH SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY REGARDLESS OF THE TYPE OF CLAIM OR NATURE OF THE CAUSE OF ACTION. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULL EXTENT PERMITTED BY LAW, AND ARE NOT INTENDED TO ASSERT ANY LIMITATIONS OR DEFENSES WHICH ARE PROHIBITED BY LAW. ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS SECTION 12 ALSO APPLY TO RexNetworks THIRD PARTY LICENSORS, PROVIDERS AND SUPPLIERS, AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT. THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless the RexNetworks Parties from and against all liabilities, costs and expenses, including reasonable solicitors’ and experts’ fees, related to or arising from your use of the Service (or the use of your Service by anyone else),
(a) in violation of applicable laws, regulations or this Agreement;
(b) to access the Internet or to transmit or post any message, information, software, images or other materials via the Internet;
(c) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible (including data) property; or
(d) claims for infringement of any intellectual property rights arising from or in connection with use of the Service.
Notices required under this Agreement by you must be provided to us at [email protected]: Customer Service. Notice by RexNetworks to you (including notice of changes to this Agreement under Section 3) shall be deemed given when:
(a) transmitted to your account’s primary email address; or
(b) mailed via NZ Post to your address on file with us; or
(c) when posted to the Announcements page of the Website.
If you send us an email, you agree that the User ID and/or alias contained in the email is legally sufficient to verify you as the sender and the authenticity of the communication.
15. GENERAL PROVISIONS:
All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination of this Agreement, including without limitation, those relating to Limitation of Liability and Indemnification, shall survive such termination. RexNetworks will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes, work slow-downs or other labor-related activity, or an inability to obtain necessary equipment or services. You may not assign or otherwise transfer this Agreement, or your rights or obligations under it, in whole or in part, to any other person. Any attempt to do so shall be void. We may freely assign all or any part of this Agreement with or without notice and you agree to make all subsequent payments as directed. Except as otherwise required by law, you and RexNetworks agree that the laws of the Commonwealth of New Zealand, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. YOU AND RexNetworks CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN A COURT LOCATED IN AUCKLAND, NEW ZEALAND FOR ANY SUITS OR CAUSES OF ACTION CONNECTED IN ANY WAY, DIRECTLY OR INDIRECTLY, TO THE SUBJECT MATTER OF THIS AGREEMENT OR TO THE SERVICE. Except as otherwise required by law, any cause of action or claim you may have with respect to the Service must be commenced within 3 months after the claim or cause of action arises or such claim or cause of action is barred. The guarantees contained in the Consumer Guarantees Act 1993 are excluded from this contract where the Buyer acquires Goods or Services from RexNetworks for the purposes of a business transaction in terms of sections 2 and 43 of that Act. Use, duplication or disclosure by any Government entity is subject to restrictions set forth, as applicable. The use of Software and documentation is further restricted in accordance with the terms of this Agreement. RexNetworks failure at any time to insist upon strict compliance with any of the provisions of this Agreement shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties. This Agreement, including all Policies referred to herein and posted on the Website, constitutes the entire agreement between you and RexNetworks with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. No changes by you to this Agreement shall be effective unless agreed to in a writing signed by an authorized person at RexNetworks.
1. General Policy
RexNetworks reserves the sole discretion to deny or restrict your Service, or immediately to suspend or terminate your Service, if the use of your Service by you or anyone using it, in our sole discretion, violates the Agreement or other RexNetworks policies, is objectionable or unlawful, interferes with the functioning or use of the Internet or the RexNetworks network by RexNetworks or other users, or violates the terms of this Acceptable Use Policy (“AUP”).
2. Specific Examples of AUP Violations
The following are examples of conduct which may lead to termination of your Service. Without limiting the general policy in Section 1, it is a violation of the Agreement and this AUP to:
(a) access without permission or right the accounts or computer systems of others, to spoof the URL, DNS or IP addresses of RexNetworks or any other entity, or to penetrate the security measures of RexNetworks or any other person’s computer system, or to attempt any of the foregoing;
(b) transmit uninvited communications, data or information, or engage in other similar activities, including without limitation, “spamming”, “flaming” or denial of service attacks;
(c) intercept, interfere with or redirect email or other transmissions sent by or to others;
(d) introduce viruses, worms, harmful code or Trojan horses on the Internet;
(e) post off-topic information on message boards, chat rooms or social networking sites;
(f) engage in conduct that is defamatory, fraudulent, obscene or deceptive;
(g) violate RexNetworks or any third party’s copyright, trademark, proprietary or other intellectual property rights;
(h) engage in any conduct harmful to the RexNetworks network, the Internet generally or other Internet users;
(i) generate excessive amounts of email or other Internet traffic;
(j) use the Service to violate any rule, policy or guideline of RexNetworks;
(k) use the service in any fashion for the transmission or dissemination of images containing child pornography or in a manner that is obscene, sexually explicit, cruel or racist in nature or which espouses, promotes or incites bigotry, hatred or racism.
3. Copyright Infringement/Repeat Infringer Policy
RexNetworks respects the intellectual property rights of third parties. Accordingly, you may not store any material or use RexNetworks systems or servers in any manner that constitutes an infringement of third party intellectual property rights, including under NZ copyright law. In accordance with the Copyright Act and other applicable laws, it is the policy of RexNetworks to suspend or terminate, in appropriate circumstances, the Service provided to any subscriber or account holder who is deemed to infringe third party intellectual property rights, including repeat infringers of copyrights. In addition, RexNetworks expressly reserves the right to suspend, terminate or take other interim action regarding the Service of any Subscriber or account holder if RexNetworks, in its sole judgment, believes that circumstances relating to an infringement of third party intellectual property rights warrant such action. These policies are in addition to and do not affect or modify any other rights RexNetworks may have under law or contract. If you believe that copyrighted material has been used in violation of this policy or otherwise been made available on the Service in a manner that is not authorized by the copyright owner, its agent or the law, please contact RexNetworks legal team by emailing us at [email protected].
RexNetwork may, but is not required to, monitor your compliance, or the compliance of other subscribers, with the terms, conditions or policies of this Agreement and AUP. You acknowledge that RexNetwork shall have the right, but not the obligation, to pre-screen, refuse, move or remove any content available on the Service, including but not limited to content that violates the law or this Agreement.
ATTACHMENT B ADDITIONAL SERVICES TERMS:
If you subscribe to any of the following services (“Additional Services”), the terms and conditions below apply to your use of the service(s) in addition to the terms of the Agreement.
1. WEB HOSTING SERVICE (“WHS”)
If WHS is made available as a feature of the Service, you agree that you are solely responsible for all content you store on or retrieve from such service. If you breach this Agreement, we reserve the right immediately to suspend or terminate your Service and/or an Additional Service(s) with or without notice. In such case, you agree that we may immediately delete all data, files, and other content stored on your Storage Services, including archived data, without further notice to you. It is your responsibility to remove or copy any content stored on WHS prior to closure of your account; otherwise, it may be lost. RexNetworks reserves the right to access your WHS account at any time with or without prior notice to you and to disable access to or remove content which in our sole discretion is or reasonably could be deemed unlawful.
2. EMAIL SERVICE
Email Service. Use of RexNetworks email service is subject to RexNetworks email and anti-spam policies, which include important information about limitations on use of the email service such as the storage capacity and deletion of stored messages. More information is available at on the Website and these email policies are incorporated herein by reference. Email Security. RexNetworks reserves the right in our sole discretion to provide the level of security we deem appropriate to safeguard our network and customers, and other Internet users, against Internet threats or abuses, including viruses, spam and phishing threats. These security measures may include, but are not limited to, the use of firewalls and blocklists to block potentially harmful or abusive emails or attachments, anti-spam filters, anti-virus and anti-spyware software, and blocking selected ports. Such activities may result in the blocking, filtering or non-delivery of legitimate and non-legitimate email sent to or from your email account. By using any RexNetworks-provided email service, you agree that delivery and receipt of email is not guaranteed and to RexNetworks use of such Internet and email security measures we in our sole discretion deem appropriate.
Email Aliases. RexNetworks will issue email aliases (alternate email addresses) based upon availability. You will surrender your alias by changing it or if your account is terminated for any reason and we will not forward emails addressed to that alias. If your Service is reinstated we cannot guarantee your alias will still be available to you. Email service is provided by Google Inc., which is a third party beneficiary of this Agreement capable of enforcing its terms independently from RexNetworks.
3. VOICE OVER INTERNET PROTOCOL (VOIP) PHONE SERVICE
3.1 Service Terms
We are not obliged to provide services unless we accept your application. We can decide whether or not to accept any application.
You understand that the VoIP service is not a traditional phone service and is provided on a best efforts basis. We will use all reasonable endeavours to make our services available to you at all times, however things beyond on control such as power outages may disrupt the service we provide.
You accept that our services are not required to support emergency calls.
You accept that VoIP Phone might not be compatible with non-voice communications equipment such as home alarms, fax machines, Sky Digital and St John Alarms.
3.2. Using our services
You must not use our services (or permit our services to be used) in a way that: breaks any laws or infringes anyones rights or in a way which is malicious, obscene or offensive.
You agree to provide us with accurate and correct information so we can provide you with the necessary services or contact you if required from time to time.
We can suspend or restrict the services we provide you at anytime if: you resell any of our services; you do not use the service sensibly and within our reasonable use guidelines set out in 3 below; we believe that you have breached any of our terms and conditions.
You must keep secure any password or PIN number which is used by you to access our services and ensure that is it not disclosed to any unauthorised person. You must also change your password or PIN number if we ask you to do so.
If your service is cancelled, terminated or reallocated you will relinquish and discontinue use of any numbers, voicemail access numbers and/or web portals assigned to you by RexNetworks.
3.3 Phone Numbers
Any phone number that we allocate to you does not become your property and does not constitute any transfer of property rights.
If we need to change your number we will send you notification by email and give you as much notice as possible.
We can withdraw or terminate any number at any time without liability, particularly if you do not comply with the instructions for use provided by RexNetworks Limited.
You may be able to port your VoIP Phone number to another service provider. If you wish to do so you must contact the other service provider directly and you will be responsible for completing the Porting requirements of that service provider. We will comply with our obligations under the Terms for Local and Mobile Number Portability in relation to the porting of your number. You will be responsible for all costs associated with porting the number.
If your account is inactive for more than 6 months or disconnected and you have not ported the associated phone number(s), we may at our sole discretion reallocate the numbers associated with your account.
3.4. Limitation of Liability
1. We exclude all of our liability to you in connection with us providing services to you or failing to provide services to you. Without limiting this, we are not liable to you (and nor are any of our officers, employees, contractors or agents liable to you): if any communication is intercepted, not properly transmitted or received; for any disruptions or delays with the use of our services; for any incompatibility with other services; if any software we supply does not operate properly; and for any equipment or network failures.
2. We are not liable to you for any fault in, delay or non-provision of services which is caused by an event beyond our reasonable control.
3. If you use another service provider during any period when our service is not fully operational, we are not liable to pay any amount you are charged by that service provider.
4. You acknowledge that no third party whose network or services we use to supply services to you (nor any officer, employee, contractor or agent of such third party) is in any way liable to you in connection with our services.
5. Nothing in this clause limits any rights you have under the Consumer Guarantees Act.
We reserve the right to change our rates from time to time and if we increase any rates we will give you as much notice as reasonably possible. The latest rates are available on our website www.rexnetworks.co.nz You are responsible for your account and must pay our charges regardless of whether you or someone else uses those services.
EARLY TERMINATION FEES (“ETF”) SCHEDULE
1. WITHIN 12 MONTHS: 80% of remaining contract term
1.1 WITHIN 24-36 MONTHS: 70% of remaining contract term
OTHER APPLICABLE FEES
1. MILEAGE CHARGE FOR INSTALLATION, DE-INSTALLATION AND RE-INSTALLATION
Milage charges of $1.30+GST per km for return journey may apply from nearest installer’s base.
2. DE-INSTALLATION FEE
If equipment is provided and owned by RexNetworks, de-installation fee which is set at time of termination will be incurred.
3. RE-INSTALLATION FEE
Re-installation fee is set at time of equipment relocation.
4. RE-CONNECTION FEE
Re-connection fee of $49+GST will apply should your Internet account requires re-activation due to suspension as a result of over due bills or causal suspension requested by you.
5. NO SHOW FEE
A no show fee of $150+GST will apply if you are not present at the agreed scheduled installation time with an installer present and the installation cannot be completed.
6. PLAN CHANGE FEE
The administration fee of $35+GST will apply if you wish to up or down grade your current plan.
SERVICE LEVEL AGREEMENT (“SLA”)
1.DESCRIPTION OF SERVICE
The Services are two way satellite broadband connection and terrestrial licensed band wireless network covering New Zealand. RexNetworks delivers an end-to-end service based on the LinkStar platform from ViaSat (“GE-23”), IPStar platform from Thaicom (“IPSTAR) and Korida Extend from Kordia (“EXTEND”). The aim is to use satellite/wireless delivery to make broadband affordable; accessible to business and residential customers throughout New Zealand. The service offers broadband internet access, voice over IP, video distribution, disaster recovery and virtual private networks through one of the above networks.
2. AGREED SERVICE LEVELS
2.1 NETWORK AVAILABILITY
Network availability is the proportion of the time for which the network is available to originate or receive data over a given period. Network availability refers to the portion of the end-to-end service under the control of the Provider and broadly includes the links from the Internet border to the RCST Ethernet interface.The network availability performance required is 99.7 per cent for each 3 month period. Scheduled maintenance downtimes between midnight and 7 a.m. are excluded in assessing network availability performance.
2.2 FAULT REPORTING AND HELPDESK
2.2.1. Faults Classification System
Each fault will be given a Fault Priority Rating by the Customer Help Desk, in consultation with the Customer.
2.2.2. Fault Priority Rating Definition
Priority 1: Customer service is down at multiple sites causing critical impact to operations if the service is not restored quickly.
Priority 2: Customer service is down at a single site, or Customer service is severely degraded significantly impacting business operations.
Priority 3: Service is noticeably degraded but most operations continue.
Priority 4: Service is not faulty but the Customer requires information or assistance on their service.
These Priority levels drive the restoration process for these particular options hence add value and increase effectiveness.
This Priority rating will correspond to time limits for each level to guarantee that the appropriate escalation takes place.
2.3 SERVICE TARGETS
RexNetworks will aim to meet these targets for each individual service:
The response time is the time taken for end user’s request for service to be acknowledged.
It shall be deemed to have occurred upon advice by RexNetworks that the fault has been identified by remote diagnostics and that action has commenced to rectify the fault.
Priority 1: 1 Hr
Priority 2: 4 Hr
Priority 3: 8 Hr
Priority 4: 24 Hr
2.4 FEEDBACK FREQUENCY
The feedback progress to end user shall be:
Priority 1: Every 1 hour
Priority 2: Every 4 hours
Priority 3: Every 8 hours
Priority 4: Every 48 hours
2.4.1 Network Availability
Network Availability will be measured in terms of unavailable time. Unavailable time includes that due to faults and unplanned outages. Unless otherwise noted, unavailability due to faults will begin from when the fault is notified to the RexNetworks Helpdesk, to when the fault is reported as resolved.
2.4.2 Measure Standard SLA
Target Availability 99.7% Business hours
RTT; 0.8 secs Minimal traffic loading Outages due to fading or interference will not be added to the unavailability figure unless otherwise noted.
2.4.3 Planned Outages
Except in cases of emergency, RexNetworks will endeavour to provide end user with 5 working days advance notice of any planned maintenance. Planned outages that are notified do not contribute to Network Availability figures.
2.4.4 Target Restoration Time
Service Restoration Time is the period commencing when a service fault report is received by the Helpdesk and ends when the service has been restored. Repair occurs when the service is returned to full working order. In some cases a temporary repair may be performed to enable use of the service before permanent repair has taken place.
Priority 1: 8 hours
Priority 2: 12 hours
Priority 3: Next business day
Priority 4: Three business days
The above restoration times may be extended by reasonable travelling time to the end user’s site.
FAIR USAGE POLICY (“FUP”)
The following Policy relates to your use of our Broadband Services. It is designed to make sure we can give you Services that are great value, fast and reliable.
1. What is Prohibited
As a RexNetworks customer you must make sure that any use of our Services, by yourself or anyone else, complies with this Policy. If you, by yourself or anyone else, breach this Policy, RexNetworks retain the right to either:
(a) give you notice to stop these, agreed upon, wrongful actions; or
(b) terminate or suspend the customers Services with RexNetworks, with or without notice, where seen appropriated on the severity of the breech in Policy. RexNetworks strongly prohibits the use of its Services in the participation of:
(a) unlawful, fraudulent, criminal or otherwise illegal activities;
(b) sending, receiving, publishing, posting, distributing, disseminating, encouraging the receipt of, uploading, downloading or using any material which is offensive, abusive, defamatory, indecent, obscene, unlawful, harassing or menacing or a breach of the copyright, trademark, intellectual property, confidence, privacy or any other rights of any person;
(c) commercial purposes, unless:
(i) you are working from home as a sole trader in business on your own account; or,
(ii) you are a Business Customer and you use the service only in the ordinary course of your business; and provided that in either case, any such use of the Services is always subject to paragraph (j) below:
(d) sending or uploading unsolicited emails, advertising or promotional materials, offering to sell any goods or services, or conducting or forwarding surveys, contests or chain letters, except if you are working from home as a sole trader in business on your own account or you are a Business Customer and in either case you are permitted to send marketing communications in accordance with the Privacy and Electronic Communications Regulations;
(e) knowingly or negligently creating, transmitting, storing, publishing or uploading any electronic material (including, without limit, files that contain viruses, corrupted files, Trojans or any other similar software or program) which is known or likely to cause, interrupt, damage, destroy or limit the functionality of any computer software, hardware or telecommunications equipment owned by us or any other Internet user or person;
(f) activities that invade another’s privacy, cause annoyance, inconvenience or needless anxiety to any person;
(g) activities that are in breach of any other third party’s rights, including downloading, installation or distribution of pirated software or other inappropriately licensed software, deletion of any author attributions, legal notices or proprietary designations or labels in any file that is uploaded, falsification of the origin or source of any software or other material;
(h) anything that may disrupt or interfere with our network or Services or cause a host or the network to crash;
(i) launching ‘denial of service’ attacks; ‘mailbombing’ attacks; or ‘flooding’ attacks against a host or network;
(j) granting access to the Services to others not located at the premises at which the Services are connected, or, in any way reselling or re-providing the Services to third parties;
(k) making excessive use of, or placing unusual burdens on, the network, for example by sending or receiving large volumes of email or excessively large email attachments; or circumventing the user authentication or security process of a host or network.
(p) the resale of any Service provided by RexNetworks is also strictly prohibited, this could lead to the termination or suspension of the customers Service.
The RexNetworks customer is responsible for ensuring the security of his/ her account information, so that unauthorised persons cannot access that account information or Services. Security information includes, but is not limited to, login information to gain access to, any equipment, such as: computer hardware, or network routers, any computer software or applications, or any other access to the Services provided by RexNetworks. A RexNetwork customer should also not disclose any security information to any third party, or use his/ her security information for the purpose of attempting to access other parts of RexNetwork’s Services for which they have no access rights. The customer is also responsible for taking steps necessary to prevent a third party obtaining access to Services. If access of RexNetworks Services is shared with others all downloads they make are counted as your own. If you have signed up for our “NO DATA CAP” packages then you can download or upload as much as you like but your usage must be within our customers’ average and estimated use patterns. If we feel that your activities are so excessive that other customers are detrimentally affected, we may give you a written warning. We also reserve the right to put your access to network in low priority queue and/or slow down or limit/manage the traffic flow to your access. In extreme circumstances, if the levels of activity don’t immediately decrease in line with our instructions after the warning, we may terminate or suspend your Services. Also if you have signed up for one of our Satellite plans “OFF-PEAK-DATA” is the term used to define the period of time during the day / night which is deemed less busy, this is typically between 12am to 5am. However if we feel that your activities are so excessive that other customers are detrimentally affected, we may give you a written warning. We also reserve the right to put your access to network in low priority queue and/or slow down or limit/manage the traffic flow to your access. In extreme circumstances, if the levels of activity don’t immediately decrease in line with our instructions after the warning, we may terminate or suspend your Services.