ISP Services Terms and Conditions for WiMAX
Definitions
1.
The "
Provider
" is nzwireless Ltd.
(a) any delay in installing the Service
(b) any delay in correcting any fault in the Service
(c) failure or incorrect operation of the Service or
(d) any other default in performance under this Agreement
15.2 The Provider equipment is and at all times shall remain the sole and exclusive personal property of the Provider, and the Customer shall acquire no interest therein by virtue of the payments provided for herein or the attachment of any portion of the hardware to the Customers residence or otherwise. 15.3 The Customer will not open, alter, misuse, tamper with or remove the providers hardware as and where installed by the Provider, and will not remove any markings or labels from the Providers hardware indicating Providers ownership or serial or identity numbers. The Customer will safeguard the Provider from loss or damage of any kind, and (except for any self installation procedures approved by the Provider) will not permit anyone other than an authorized representative of the Provider to perform any work on the Providers hardware. 15.4 Upon termination of the Providers Service to The Customer, for whatever reason, the Customer acknowledges that his/her right to possess and use the Providers hardware shall likewise terminate. In such event, the Providers hardware shall be returned to Providers in the same condition as when received, ordinary wear and tear excepted. The Customer will promptly return the Providers hardware or notify the Provider to schedule retrieval by the Provider. If the Customer does not promptly return the Providers hardware or schedule retrieval, The Provider may enter any premises where the Providers hardware may be located for the purpose of disconnecting and retrieving the Providers hardware. Failure of the Provider to remove its hardware shall not be deemed an abandonment. The Customer will pay the expense incurred by Provider in any retrieval of the unreturned hardware from the Customer. The Provider may charge the Customer a continuing monthly fee until any remaining Hardware from the Provider is returned, collected by the Provider or fully paid for by The Customer in accordance with Section15.4. The current fee is listed in the list of charges on the price list or can be provided on request. 15.5 If the Providers hardware is damaged, destroyed, lost or stolen while in the Customer's possession, The Customer shall be liable for the cost of repair or replacement of the Providers hardware. If the Providers hardware is not returned to or retrieved by the Provider as described in Section 15.4 upon termination of the ISP Service, The Customer will pay The Provider, on demand, the amount specified in the then-current price list for the replacement cost of the Providers hardware without any deduction for depreciation, wear and tear or the physical condition of such equipment. The Customer agrees that if he/she fails to return the Providers hardware, the Provider can charge the Customer for the amounts described in Sections 15.3 and 15.4, in addition to any other remedies or collection efforts. If the Provider is charging a security deposit, the obligations of the Provider regarding such security deposit shall be governed by the terms of the deposit receipt provided by the Provider to the Customer at the time the deposit is collected.
The " Customer " is a customer of nzwireless Ltd.
The " Service " means Internet Connectivity
" Charges " means the charges payable by the Customer to the Provider pursuant to this agreement.
" Normal business Hours " means between 9:00am and 5:00pm New Zealand Standard Time; Between Monday and Friday.
The " Customer Access List " means a list of persons that may have access to the Customer's equipment for the purpose of installation and maintenance (if applicable).
Agreement 2.1 By using this service the Customer agrees to the conditions herein specified by this agreement and as modified with or without notice by the Provider from time to time. Service 3.1 The use of the Service, including the contents thereof and any storage and use of information is at the Customers sole risk. 3.2 The Provider may monitor or keep any records that the Provider deems necessary of the Customer's use of the Service. 3.3 Subject to clause 5.2 the Customer understands and agrees that temporary interruptions may occur as normal and reasonable events in the provision of the Service. The Customer further understands and agrees that the Provider has no control over third party networks and upstream providers that the Provider may utilize or which the Customer may access in the use of the Service. 3.4 Subject to clause 5.2 the Provider does not make any warranty as to the results obtained from the use of the Service or warrant that the service will be uninterrupted or error free. The Service is distributed on an "AS IS" basis without warranties of any kind, either expressed or implied including but not limited to warranties of title or implied warranties of merchantability or fitness for a particular purpose or use with respect to the service or information. 3.5 The bandwidth supplied by the Provider as specified in the requisition will be provided to the maximum allowed rate. The Provider does not guarantee that this bandwidth will be permanently available at this maximum rate unless otherwise specified. 3.6 (i) The Customer shall only use the Service for lawful purposes, in compliance with all applicable laws including, without limitation, copyright, trademark, obscenity and defamation laws.(ii) Unlawful activities may include, without limitation, storing, distributing or transmitting any unlawful material through use of the Service, attempting to compromise the security of any networked account or site or making direct threats of physical harm.
3.7 The Customer agrees to refrain from mass posting of messages to inappropriate Usenet newsgroups, to refrain from mass, unsolicited e-mailings, and to post advertisements only where appropriate in venues that specifically encourage or allow advertising. 3.8 The Provider will notify the Customer from time to time of operating rules that may apply in relation to the Service. 3.9 The Provider may change any IP Address(s) supplied as part of the Service at any time by providing the Customer with at least fifteen (15) days prior notice. Subject to the provisions in the requisition form the Customer agrees that the Provider is under no obligation to provide IP Addresses as part of the Service. 3.10 The Provider reserves the right to limit the speed of uploads and downloads of any kind and in all protocols, including without limitation, file downloads (FTP's) and P2P program. Billing and Collections 4.1 The Provider will send the Customer an invoice. Monthly recurring Service charges shall be billed in advance of Service. Data charges if applicable shall be billed in arrears of service. Invoices are due and payable in full upon receipt. Invoices must be paid by the due date and any late payment may result in interruption of service until payment is made. 4.2 In the event the Customer fails to pay charges billed by the Provider, the Customer will be liable for all costs involved in recovering the debt, including, but not limited to, the charges applied by a Debt Recovery Service. Use of Service 5.1 nzwireless shall ensure that the service provided to the Customer is not affected by congestion of the Provider sourced Internet Feed, such that the service is significantly slowed in operation 5.2 nzwireless Limited does not allow the on-selling, re-selling or use of access to anyone other than the Customer stated on the application form unless otherwise specified. 5.3 Upon written notification by the Customer that congestion has been affecting the service over a period of seven (7) days the Provider shall remedy the situation within a further fourteen (14) days not including any delays imposed by the Providers upstream internet provider. If such a remedy is not provided, then the customer may terminate this Service. Liability of the Provider 6.1 Subject to clause 6.2 and 5.2 all terms, conditions, warranties, undertakings, inducements and representations, whether expressed or implied, statutory or otherwise, relating to the provision by us of the Service are excluded, and the Provider will not be under any liability in respect of any loss or damage (including consequential loss or damage) however caused ( whether by negligence or otherwise) which may be suffered or incurred or which may arise directly or indirectly in respect or the Service. 6.2 Where any applicable legislation implies any term, condition or warranty into this Agreement, or otherwise gives the Customer a particular remedy against the Provider, and that legislation or any other legislation renders void or prohibits provisions excluding or modifying in the application of, exercise of or liability under such implied term, condition, warranty or remedy will be deemed to be included in this agreement. However the Providers liability for any breach of such implied term, condition or warranty or under such remedy will be limited at the providers option either supply of the service again or the payment of having the cost of having the service supplied again. 6.3 The Provider is not liable for any faults or defects in the Service which are caused to any material extent by the Customers conduct or misuse. Force Majeure 7.0 The Provider is not liable for:(a) any delay in installing the Service
(b) any delay in correcting any fault in the Service
(c) failure or incorrect operation of the Service or
(d) any other default in performance under this Agreement
If it is caused by any event reasonably beyond the Provider's control, including but not limited to war, accident, act of God, industrial action, embargo, delay or failure or default by any other service provider.
Indemnity 8.1 The Customer hereby indemnifies and shall keep indemnified the Provider in respect of any loss or damage action claim suit or proceeding against the Provider by any person in respect to the use of the Customers user account including but not limited to the transmission of any illegal and / or fraudulent material which the Customer transmits or causes to be transmitted using the Provider's Service. Notices 9.1 All notices and other communications provided for or permitted hereunder shall be in writing and shall be sent by hand delivery post or facsimile, or electronic mail, or posted on the Provider's internet web site to the parties hereto at their respective last known address or to such other address as any party may specify by notice in writing to another party; 9.2 All such notices and communications shall be deemed to have been duly given or made;(i) When delivered if sent by hand or;
(ii) The business day following the date of transmission if sent by electronic mail or;
(iii) When posted on the Provider's internet web site;
a) Any payment due from the Customer to the Provider pursuant to this agreement, including but not limited to installation charges, remains outstanding past the due date;
b) The Customer provides false or inaccurate information which is required for the provision of the Service or that which is necessary to allow the Provider to bill the Customer for the Service, and such condition is not remedied within seven (7) days;
c) Either party fails to perform or observe any other material term or condition of this Agreement;
d) There is an appointment of any type of insolvency administrator in respect of the property or affairs of either party;
13.2 In the event that the Customer is in breach of any clause of this agreement and the Provider terminates this agreement the Customer shall be liable for any applicable charges, including a cancellation charge. 13.3 In the event that the Customer terminates this agreement according to clause 13.2 and 13.3 no cancellation clause will be applicable. 13.4 Either party may terminate the contract upon the supply of one month written notice. Providing the initial six month period has been surpassed or another period is otherwise specified. Use limitations 14.1 The Customer agrees any attempt to break security or to access an account, which does not belong to the Customer, shall be considered a material breach of contract, and the Provider may terminate this Agreement without liability. Upon such termination by the Provider, the Customer shall be liable for any applicable charges, including cancellation charges. 14.2 The Provider reserves the right to suspend or terminate Service to the Customer in the event it is used in a manner which (i) constitutes violation of any law, regulation or tariff (including without limitation, copyright and intellectual property laws); (ii) is defamatory, fraudulent; (iii) is intended to threaten, harass or intimidate; (iv) interferes with other customers use and enjoyment of the Service provided by the Provider. Equipment and Install 15.1 If the Customer is not the owner of the premises upon which equipment and software are to be installed, the Customer warrants that he/she has obtained the consent of the owner of the premises for the providers personnel and/or its agents to enter the premises for the purpose of install, maintenance and uninstall. The customer shall indemnify and hold the Provider harmless from and against any claims of the owner of the premises arising out of the performance of this Agreement.15.2 The Provider equipment is and at all times shall remain the sole and exclusive personal property of the Provider, and the Customer shall acquire no interest therein by virtue of the payments provided for herein or the attachment of any portion of the hardware to the Customers residence or otherwise. 15.3 The Customer will not open, alter, misuse, tamper with or remove the providers hardware as and where installed by the Provider, and will not remove any markings or labels from the Providers hardware indicating Providers ownership or serial or identity numbers. The Customer will safeguard the Provider from loss or damage of any kind, and (except for any self installation procedures approved by the Provider) will not permit anyone other than an authorized representative of the Provider to perform any work on the Providers hardware. 15.4 Upon termination of the Providers Service to The Customer, for whatever reason, the Customer acknowledges that his/her right to possess and use the Providers hardware shall likewise terminate. In such event, the Providers hardware shall be returned to Providers in the same condition as when received, ordinary wear and tear excepted. The Customer will promptly return the Providers hardware or notify the Provider to schedule retrieval by the Provider. If the Customer does not promptly return the Providers hardware or schedule retrieval, The Provider may enter any premises where the Providers hardware may be located for the purpose of disconnecting and retrieving the Providers hardware. Failure of the Provider to remove its hardware shall not be deemed an abandonment. The Customer will pay the expense incurred by Provider in any retrieval of the unreturned hardware from the Customer. The Provider may charge the Customer a continuing monthly fee until any remaining Hardware from the Provider is returned, collected by the Provider or fully paid for by The Customer in accordance with Section15.4. The current fee is listed in the list of charges on the price list or can be provided on request. 15.5 If the Providers hardware is damaged, destroyed, lost or stolen while in the Customer's possession, The Customer shall be liable for the cost of repair or replacement of the Providers hardware. If the Providers hardware is not returned to or retrieved by the Provider as described in Section 15.4 upon termination of the ISP Service, The Customer will pay The Provider, on demand, the amount specified in the then-current price list for the replacement cost of the Providers hardware without any deduction for depreciation, wear and tear or the physical condition of such equipment. The Customer agrees that if he/she fails to return the Providers hardware, the Provider can charge the Customer for the amounts described in Sections 15.3 and 15.4, in addition to any other remedies or collection efforts. If the Provider is charging a security deposit, the obligations of the Provider regarding such security deposit shall be governed by the terms of the deposit receipt provided by the Provider to the Customer at the time the deposit is collected.
