Standard Terms and Conditions
Date Effective: 1 September 2017
These are our Customer Terms and Conditions
SMARTLINX 3 LIMITED a company having its place of business at Unit 5, 408 Hutt Road, Alicetown, Lower Hutt 5010.
The CUSTOMER refers to anyone using Smartlinx 3’s network or network services (”Customer”).
In these Customer Terms we use the terms:
- “Internet Service” to refer to Smartlinx 3’s Internet service;
- “Network” to refer to any of the networks operated by Smartlinx 3 or other carriers used to provide the Customer with various services from Smartlinx 3;
- “Internet” to refer to the use of the World Wide Web and associated services;
- “Users” the Customer or any person permitted by the Customer to use Smartlinx 3 Internet Services;
- “Smartlinx 3”, “we”, “our”, and “us” to refer to Smartlinx 3 and our representatives; and
- “Customer”, “you” and “your” to refer to anyone using Smartlinx 3’s network or network services.
- Matters Agreed
These Customer Terms form the basis of Smartlinx 3’s legally binding agreement with the Customer and shall be deemed to have been accepted and agreed to by the Customer upon completion and submission of an application in writing or from the date of first using Smartlinx 3 network or network services.
By using, and continuing to, use our services you are agreeing to the terms and conditions of Smartlinx 3 Limited.
You confirm that you are at least 18 years of age and that you are authorised and able to pay for the products and services to which you subscribe.
The application form provided to us by you also forms part of this contract. A facsimile copy of our application form will be treated as if it was an original.
Where the Customer has verbally completed an application by telephone, Smartlinx 3 will advise the Customer of the key Customer terms and refer the Customer to the availability of the full version of the Customer Terms on its website. Smartlinx 3 will record this conversation, and the Customers’ acceptance will have the same effect as if the Customer had signed an application form in writing.
- Smartlinx3’s Commitment of Service to You
As a valued customer, once connected to our Network, our goal is to provide you with a consistently reliable and top quality service. We cannot guarantee that the service we provide will be perfect, but will always endeavour to bring you the best quality of service we are able to. If your connection is disrupted we will endeavour to do our best to reinstate our service to you as quickly as we can.
The Smartlinx 3 Help Desk is available 8am to 5:30pm Monday to Friday:
- Telephone: 04 939 1444 option 2; or
- Email: email@example.com
Our of Office Hours Helpdesk Number is:
- Telephone: 0800 000 126 option 2
We reserve the right to choose the carriers and suppliers used to provide our services and we can change the carriers or suppliers at our discretion.
At times we may advise you about ways in which you can access our Network.
- Changing these Customer Terms, Price Lists and Internet Services
Change in Customer Terms: Smartlinx 3 reserves the right to amend these Customer Terms at any time. If Smartlinx 3 does amend these Customer Terms, it will endeavour to provide a minimum of 10 business days’ notice and, wherever possible, at least one month notice of these changes. Smartlinx 3 will notify the Customer of these changes by writing or emailing the Customer and will upload a copy of the amended Customer Terms on its website at http://www.Smartlinx3.co.nz. It will be the Customers responsibility to visit Smartlinx 3’s website to obtain a copy of the amended Customer Terms.
Continued use of Smartlinx 3’s Internet Services after these changes have been notified to the Customer in this way will constitute acceptance of the amended terms by the Customer. These terms will then form part of the Customer Terms agreed between Smartlinx 3 and the Customer.
Change in Price List: These Customer Terms incorporate Smartlinx 3’s current applicable price list. The price list may change from time to time. Where the price of the Internet Service increases, Smartlinx 3 will notify the Customer at least 10 business days prior to the increase and where possible with one month’s notice. A copy of Smartlinx 3’s current applicable price list and plans is available from Smartlinx 3 at the Customer’s request or at the following website www.Smartlinx3.co.nz
Change in Internet Services: Smartlinx 3 may alter its Internet Services from time to time. If Smartlinx 3 alters its Internet Services in a way that materially reduces the Internet Service offering currently received by the Customer, Smartlinx 3 will provide the Customer a minimum of 10 working days’ notice, and wherever possible, one month’s notice, of such alterations. Smartlinx 3 will tell the Customer about any such alterations by emailing or writing to the Customer and by publishing the change on its website.
- Smartlinx 3’s Obligations
Whenever Smartlinx 3 provides Internet Services for the Customer, Smartlinx 3 will:
- use its best efforts to provide the Customer with a consistently reliable and good quality Internet Service once the Customer is connected to the Network;
- use its best efforts to reinstate the Internet Service when the Customers connection is disrupted within a reasonable timeframe;
- supply the Internet Service through the Network to the Customer in a way that Smartlinx 3 believes is the most appropriate form for the Customers connection;
- choose the carriers and suppliers used to provide the Internet Service (which Smartlinx 3 may change at its sole discretion); and
- advise the Customer how to access the Network (this may change from time to time at Smartlinx 3’s sole discretion).
Smartlinx 3 does not represent or guarantee the Internet Service will be:
- interruption or fault free, or that any faults or errors will be able to be corrected;
- available at any particular time or location;
- available, or available without change, for any minimum period of time;
- secure or private; and/or
- free of viruses or other harmful features.
- Payment and Billing
The Customer must pay for all goods and services that Smartlinx 3 provides to the Customer’s address or for the Customer’s use (no matter who uses the Internet Services). Smartlinx 3 will send the Customer bills for the charges. The Customer must pay each account by the due date for payment as set out in the bill. If the Customer fails to pay any monies on the due date, Smartlinx 3 may:
- charge a late payment fee and interest on all overdue accounts at a rate of 10% per annum, until payment is received in full by Smartlinx 3, but without prejudice to all or any of Smartlinx 3’s rights and remedies under these Customer Terms (any payment received will be applied firstly against interest and then late payment fees);
- require the Customer to pay any costs that are incurred by anyone (including agents) in recovering the money owed, or in exercising any other rights, including commissions, credit collection and legal costs on a solicitor and client basis; and/or
- discontinue the Internet Services and/or refuse to provide any further Internet Services to the Customer (Smartlinx 3 will notify the Customer at least 5 business days before it will disconnect the Internet Service for non-payment, unless the customer states they will not be paying the amount owed, in which case the services will be terminated same day).
The Customer must notify Smartlinx 3 immediately if the Customer disputes any charges. The Customer must provide Smartlinx 3 with details of the reasons for the dispute, details of the charges and evidence of the grounds for the dispute. The dispute must be raised before the due date of the bill. Any claim outside of this time frame may not be recognised (at Smartlinx 3’s sole discretion). Payment for the undisputed charges must be made by the due date for payment. The Customer must not set-off or deduct any amount to be paid in respect of the bill in any other circumstances.
If Smartlinx 3 agree there is a mistake, Smartlinx 3 will adjust the Customer’s next bill or, if appropriate provide a refund. If Smartlinx 3 finds there is no mistake, and if the due date for payment has already passed, the Customer must pay the amount outstanding within five working days.
The Customer agrees and acknowledges that all amounts are payable in New Zealand dollars and include GST, unless otherwise specified.
Smartlinx 3 will only accept Internet Banking, Credit Cards and Direct Debit Authorities as methods of payment. From time to time at Smartlinx 3’s sole discretion Smartlinx 3 may accept other methods of payment.
- Billing Policy
All Smartlinx 3 recurring services will be invoiced monthly in advance.
- The Customers Obligations
The Customer will:
- Ensure that all of the information given to Smartlinx 3 is correct and complete;
- Pay for all goods and services we provide to you, regardless of whether it is you who uses them unless otherwise stated;
- Be liable for any charges incurred where your computer modem is programmed to dial overseas numbers without your knowledge or direction. We accept no liability for such charges. It is the customer’s responsibility to safeguard their connecting device;
- Notify Smartlinx 3 immediately of any change of the Customer’s address, or land line or mobile phone number, or any other relevant contact details;
- Comply with any legal requirements concerning the use of Smartlinx 3’s Internet Services;
- Comply with any requirements of any other carrier in relation to the use of the Network;
- Ensure that everyone is aware of the Customers obligations and responsibilities under these Customer Terms;
- Provide reasonable access to Smartlinx 3 employees, its agents, its contractors or its representatives or its sub-contractors including any other carrier to undertake any and all work required for the commencement, operation, continuance and maintenance of Smartlinx 3’s Services and the Network. Smartlinx 3 will undertake this work by appointment and during reasonable working hours. In the event that Smartlinx 3 requires access at a time outside of reasonable hours then the Customer will be notified but access must be provided to Smartlinx 3;
- Provide Smartlinx 3 with the Internet Service login and email information to enable Smartlinx 3 to rectify any faults with either the Network or the Customer’s connections;
- Follow the instructions and directions Smartlinx 3 provide about using the Internet Services and only use them for lawful purposes;
- Ensure that anyone using the Customer’s connection will not view/download objectionable content in contravention to applicable laws;
- Comply with all applicable laws, regulations, standards and codes when using our Services, including, but not limited to, the Privacy Act 1993, Fair Trading Act 1986, Copyright Act 1994, Defamation Act 1992 and the Crimes Act 1961, and not infringe a third party’s rights;
- Make sure everyone who uses the Internet Services that Smartlinx 3 provide to the Customer, or does anything in relation to them, is also aware of, and meets, these responsibilities. The Customer is responsible and liable for any use by any other person (authorised or unauthorised) of the Internet Services Smartlinx 3 provide the Customer, including any charges associated with that use and any consequences if such person misuses the Internet Services or breaches these Customer Terms; and
- Remain responsible for ensuring that all calls or other communications, specifically or inadvertently directed into our network from your communications equipment or systems (including but not limited to telephone, facsimile, PABX, VoIP Softswitch, gateway, computer software or hardware) relate to services you have ordered from us, and not to services you have with another carrier. Any pre-programmed calling procedures you have must be deleted or removed from such equipment or systems prior to the commencement of our service to you. If you do not comply with these conditions you will be liable for our charges in conveying or dealing with such calls.
In the event that Smartlinx 3 require a bond or some other such security to ensure payment of Smartlinx 3’s charges, the money will not accrue interest and it will be repaid to the Customer when these Customer Terms are terminated so long as all monies owed by the Customer have been paid.
Smartlinx 3 reserves the right to impose a credit limit on the Customer’s account at any time. The Customer agrees that a credit limit imposed by Smartlinx 3 may be altered at Smartlinx 3’s discretion and from time to time without notice to the Customer.
The customer acknowledges that all equipment (for example but not limited to routers, CPE’s, aerials etc.) installed on the Customer’s premises remain at all times the property of Smartlinx 3 Limited
- Acceptable Use Policy
Smartlinx 3’s Acceptable Use Policy (AUP) is designed to ensure that the Network is used equitably by all users so as to create an online community where all users enjoy a high quality Internet Service. The AUP sets out obligations and restrictions for users while they are using Smartlinx 3’s Internet Service. Smartlinx 3 reserves the right to limit and/or suspend its Internet Service to Customers who breach the AUP. Customers will remain legally responsible for their actions when using Smartlinx 3’s Internet Service and Customers will indemnify Smartlinx 3 for any loss incurred by Smartlinx 3 or any third party (or other users) due to the Customer’s action. A copy of the full terms and conditions of Smartlinx 3’s AUP is contained on the Smartlinx 3 website at http://www.Smartlinx3.co.nz. It is the Customers responsibility to visit Smartlinx 3’s website to obtain a full copy of the AUP which forms part of this contract with you.
- Suspension or Disconnection of Internet Services
In the event that the Customer exceeds its credit limit as set out in clause 8 Smartlinx 3 will be entitled to suspend the provision of its Internet Services to the Customer.
In the event that the Customer does not meet all or any of its obligations under these Terms and Conditions Smartlinx 3 may suspend or disconnect the Customer from Smartlinx 3’s Network or discontinue any other services that Smartlinx 3 provides to the Customer.
Smartlinx 3 may suspend or disconnect the Customer from the Network if another carrier suspends or interrupts Smartlinx 3’s Internet Service and that suspension or interruption affects Smartlinx 3’s ability to provide its Internet Services to the Customer.
Smartlinx 3 may suspend or restrict an Internet Service in an emergency or whenever Smartlinx 3, another carrier, or any other appropriate person considers that step necessary or reasonable to protect persons, systems or other property.
In the event that the Customer is suspended or disconnected from Smartlinx 3’s Network for failing to meet any of its responsibilities under these Customer Terms, the Customer may be required to pay a recommencement fee before it can use Smartlinx 3’s Network again. All costs and expenses of or incurred by Smartlinx 3 as a result of suspension or disconnection by the Customer and any recommencement shall be payable by the Customer upon demand by Smartlinx 3.
Normal charges, as outlined in Smartlinx 3’s price list, will continue to apply during the Customer’s suspension or disconnection from Smartlinx 3’s Network.
- Warranty and Liability
Consumer Guarantees Act: If the Customer is a residential customer, it may have rights under the Consumer Guarantees Act 1993 in addition to the rights set out under these Customer Terms and these Customer Terms shall apply subject to the provisions of the Consumer Guarantees Act 1993. If the Customer receives goods or Internet Services from Smartlinx 3 for the purposes of a business, then the Customer agrees that the Consumer Guarantees Act 1993 will not apply to these Customer Terms or any of our business dealings with Smartlinx 3.
Indemnity: The Customer will indemnify Smartlinx 3 against all liabilities, costs (including full costs between solicitor and client), losses, claims or demands incurred by Smartlinx 3 arising out of or incidental to any of the Internet Services and/or these Customer Terms. The Customer also agrees to indemnify Smartlinx 3 against all liabilities incurred by the Customer due to viruses, spam, junk emails and hacking/ disruptive activities caused by themselves or other parties.
No representations: Except to the extent specifically stated under these Customer Terms or required by law, Smartlinx 3 (including those persons listed under clause 10.4) does not make any representation and gives no assurance, condition or warranty of any kind to the Customer in relation to the Internet Services provided to the Customer (whether express, implied or whenever arising) whether originating in statute, law, trade, custom or otherwise that would apply if it were not for this clause.
Exclusion of all other Liability: To the maximum extent permitted by law, Smartlinx 3 and the persons listed below will not be under any liability whatsoever to the Customer for any loss of profit, loss of bargain, loss of business opportunity or exemplary damages or losses suffered by the Customer arising out of or flowing from any breach of contract, any pre-contractual misrepresentation or other dispute arising out of these terms and whether actionable in contract, tort (including negligence), equity or otherwise.
- Smartlinx 3’s directors, employees, agents, representatives and contractors;
- Owners and providers of Networks who allow Smartlinx 3 to operate their networks;
- Other network operators who use Smartlinx 3 Network and allow Smartlinx 3 to use their networks, and their directors, employees, agents, representatives and contractors; and
- Any person who provides any service which is part of Smartlinx 3 Internet Services, and their directors, employees, agents, representatives and contractors.
Copyright and related exclusions: To the maximum extent permitted by law, the Customer agrees that Smartlinx 3 will not be responsible for copyright infringement and/or unauthorised access to or alteration of the Customer’s communications or data, any material or data sent or received or not sent or received, any transactions entered into through use of the Internet Services, any threatening, defamatory, obscene, offensive or illegal content or conduct of any other party or any infringement of another’s rights, including intellectual property rights. The Customer also agrees that Smartlinx 3 is not responsible for any content sent using, or included in, Smartlinx 3’s Internet Service by any third party.
Exclusion of Types of Loss and Damage: To the maximum extent permitted by law, Smartlinx 3 (or those persons listed above) in no circumstances will be liable to the Customer or any third parties for any loss of data, revenue, profits or lost business or any indirect, incidental, consequential, special, punitive or exemplary damages or losses which the Customer may incur as a result of anything Smartlinx 3 have done or not done, or otherwise in connection with the Internet Services or the Customer’s use of any of them, or anything Smartlinx 3 have done or not done or delayed in doing in relation to them, regardless of the type of claim or the nature of the cause of action, and even if Smartlinx 3 have been advised of the possibility of damage or loss. For the avoidance of doubt, in the event that Smartlinx 3’s Internet Services fail to operate for any reason and the Customer uses a different service provided by another carrier at that time or any other time, Smartlinx 3 will not be responsible for that carrier’s service charges. This exclusion of liability applies whether or not Smartlinx 3’s agreement with the Customer has ended and regardless of the type of damage the Customer suffers or howsoever it was caused.
- Limitation of Liability
If Smartlinx 3 (or those persons listed in clause 11) is liable to the Customer for any reason and cannot rely on the exclusion of liability set out under clause (2), then this clause applies.
Where this clause applies, the maximum combined amount Smartlinx 3 (and those persons listed in clause 11) will have to pay the Customer, will be limited to the lower of:
- The total sum of the amounts billed to you (excluding GST) under our three most recent invoices immediately preceding the occurrence of the breach in respect of any one breach, and $1,000 for any event or for any series of related events; and
- a total of $1,000 in respect of all events in any 12 month period
provided that the Customer notify Smartlinx 3 of its claim within 3 months after the relevant event or series or events become reasonably discoverable to the Customer.
This limitation does not limit any rights the Customer may have under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986.
- Force Majeure
Failure by either party to perform its obligations under these Customer Terms due to a Force Majeure event shall not be a breach of those obligations, and the obligations of both parties shall be suspended during the currency of the Force Majeure event.
Force Majeure means any act of God or act of nature, strike, lockout, work stoppage or other labour hindrance, confiscation or expropriation, embargo, electrical supply failure, fire, smoke damage, flood, water damage, ice, explosion, nuclear accident, sabotage, revolution, riot, act of war whether declared or not, warlike operations, any act or terrorism, requirement or restriction of governmental authorities, land slide, earthquake, epidemic, quarantine restriction, and any cause beyond the reasonable control of the Customer or Smartlinx 3 preventing either of them performing their obligations under these Customer Terms.
Neither party shall be entitled to the benefit of this clause to the extent that the failure was caused by the party’s negligence or contributory negligence or if the failure was caused by a shortage or lack of money.
The party claiming the benefit of this clause shall give notice as soon as possible after the Force Majeure event or condition or cause has ceased or been remedied that it is in a position to resume the performance of its duties and obligations.
- Privacy and Personal Information
- Electronic Communications and Email
The Customer agrees that during the term of these Customer Terms, there is an on-going business relationship between Smartlinx 3 and the Customer. The Customer gives Smartlinx 3 and its officer’s explicit consent and permission to communicate with the Customer at a nominated email address with regard to the Internet Service and related services provided by Smartlinx 3 or its affiliates. The Customer may request that email communications be directed to a different address, and Smartlinx 3 undertakes to change its records for all future email communications in a timely manner.
- Additional Terms for Installed services
If Smartlinx 3 is providing services in relation to equipment installed or connected in your home (whether installed or connected by us or another approved installer), the following terms also form part of your agreement with us.
- We will arrange a time with you to install the services at your home. If you live in rented premises then you agree to ensure that your landlord is happy for us to install our services at those premises. (Note – Landlords permission will be acknowledged on the application form you sign). Where we attend at your home at the arranged time and are not able to gain entry you may be charged for that attendance;
- If Smartlinx 3 provides you with the use of a modem/router under the terms of your service, the responsibility is yours to return it to the Smartlinx 3 office during office hours Monday to Friday. If the loaned device/s are not returned during business hours Monday to Friday, you will be invoiced for the purchase cost of the device/s.
- You or your nominated agent may be required to provide us with proof of identity before commencing work;
- Once we have finished work we will ask you to confirm that the installation has been completed to your satisfaction. If you are not going to be at home on the day scheduled for the install then you may nominate an agent (who must be over 18 years old) to do this on your behalf;
- You must pay for all costs of installation, including any additional costs resulting from non-routine installations. We will tell you in advance if any additional costs will be payable;
- If we are providing you with high speed internet services you are responsible for obtaining and installing a suitable network card for your computer; and
- If for any reason, including if we feel it is unsafe or uneconomical to connect services to your household, Smartlinx 3 reserves the right not to connect the services you require. We may exercise this right at any time even if we have accepted your application for services;
- Smartlinx 3 will not take any responsibly for any gear or services provided by or promises made by Netstar Wellington. Any gear or services provided by Netstar can be replaced by Smartlinx 3 at the customers expense, this will be invoiced to the customer at BAU rates.
- Like all other service providers, Smartlinx 3 will fix faults within it’s system for free, as you would expect, but if the fault is found to be on the customer site, eg a modem, router or ATA adapter has a fault, or cabling has been damaged, or the modem, router or ATA adapter has been interfered with eg reset to factory setting, then the customer is liable for the labour charges, milage to and from the site, and any equipment purchased to rectify the fault. If Smartlinx 3 provides a router/modems for your use, this is a one off under the terms of the contract, replacement routers/modems will be at the customers cost, as these are housed at the customers premises where Smartlinx 3 cannot take responsibility for any power conditions (power fluctuations of frequent power resets) that can impact of the fair expected life of a device.
Speed & Quality of Service:
- Your Smartlinx 3 plan speed refers to the maximum possible connection speed. We offer various asymmetric upload and download speeds on fibre connections starting from 30Mb x 10Mb. This is only possible on fibre optic connections capable of faster speeds and larger data capacities. Faster speeds are available, so please visit our website for details. Where ever possible these speeds will be available, but we cannot give 100% guarantees other factors out of our control may affect speeds. These factors include such things as moving the data around New Zealand, International gateways, upstream providers etc;
- Smartlinx 3 Broadband is not guaranteed to be fault free or continuous;
- Certain types of traffic such as web and email may be prioritised. Other types of traffic such as peer to peer (P2P) may be deprioritised.
Residential Phone Line Services:
- If you receive residential phone line services from us then the following terms also form part of your agreement with us.
Internal wiring maintenance:
- We will assume that you require an internal wiring maintenance service unless you tell us otherwise. If however you are transferring your residential phone line services to us from another service provider, and you did not purchase the internal wiring maintenance service from that other service provider, we will not provide you with the service unless you tell us otherwise. Additional fees may apply for internal wiring maintenance services.
Telephone numbers and directory services:
- All telephone numbers that we allocate to you do not belong to you. This means that we may change any number allocated to you, so long as we have given you notice in advance. We are not responsible for any costs incurred by you as a result of a change in your telephone number; and
- Any telephone numbers that are ported to our service will attract a porting fee of $19.95+GST per line.
Directory listing and caller line identification:
- If you would like to be listed for 018 directory assistance and/or in the white pages, it is your responsibility to make these arrangements with Telecom and pay all applicable charges; and
- If you tell us that you would like your details to remain unlisted then we will do our best to respect that wish. You acknowledge that your details may still be provided to emergency service providers and to authorised government agencies.
Smartlinx 3 Calling Plans:
- Toll calls are any call you make that is not a local call (e.g. national, international and calls to mobile phones). All Smartlinx 3 toll calls are subject to a one minute minimum charge. Calls longer than one minute duration are rounded up to the next minute;
- You are responsible for any charges incurred on your Smartlinx 3 telephone account for toll calls and 111 calls whether they are unintentional or unauthorised;
- It is your responsibility to make sure you have sufficient security to prevent malicious toll calls being generated by unauthorised software or viruses;
- Smartlinx 3 VoIP plans are available to residential & business customers. Residential plans are available on our website along with our calling rates. Please contact us if you are a business wishing to acquire our services;
- There is a one monthly billing cycle minimum term on all Smartlinx 3 plans. Other billing cycles can be arranged by contacting us on 04 939 1444 or emailing us at firstname.lastname@example.org
- When you agree to subscribe to a Smartlinx 3 plan you must purchase the service for a minimum contract period of 12 months. See our Terms & Conditions for termination of contract details;
- For National & International Calling Rates, please visit our website. Local Calls are free as are calls between Smartlinx 3 customers; and
- Calling rates to New Zealand Mobiles are billed by the minute and rounded up to the nearest next minute where part minutes are used.
- Other Terms
Other terms may apply to some of the Internet Services provided by Smartlinx 3. At such time as appropriate Smartlinx 3 will advise the Customer of these terms and conditions in writing.
Any written notice required to be given to Smartlinx 3 must be sent to the address below and shall be deemed to be received within two business days of posting by first class mail, or immediately if transmission is electronically. Any notice given on a non-business day or after 5:00pm on a business day shall be deemed to have been given at the commencement of the next business day.
Smartlinx 3 Limited
Street Address: Unit 5, 408 Hutt Road, Alicetown, Lower Hutt 5010
Postal Address: Unit 5, 408 Hutt Road, Alicetown, Lower Hutt 5010
Telephone: 04 939 1444
Attention: The Manager
In the event that the Customer changes address or moves premises, it must inform Smartlinx 3 of this event in writing so that Smartlinx 3 can ensure there is no interruption in its supply of Internet Services to the Customer. If the Customer does not inform Smartlinx 3 of this event, it may not be able to ensure the continuous supply of our Internet Services to the Customer.
The Customer agrees that all agreements, notices, disclosures and other communications that Smartlinx 3 provide to the Customer electronically satisfy any legal requirement that such communications be in writing.
The Customer agrees that any electronic communication from the Customer will be taken to be received by Smartlinx 3 at the time that that electronic communication comes to Smartlinx 3’s attention.
- Term and Termination
Term: These Customer Terms will come into effect on the date of signing by the Customer and will continue in full force and effect unless terminated earlier by either party in accordance with this clause.
Smartlinx 3 Termination:
- Smartlinx 3 may terminate these Customer Terms immediately without notice if the Customer fails to pay any invoices or fails to meet its responsibilities to Smartlinx 3 under these Customer Terms;
- Smartlinx 3 may terminate these Customer Terms for any other reason by giving the Customer at least one month’s notice;
- Termination of these Customer Terms by Smartlinx 3 shall not release the Customer from any outstanding obligations or responsibilities that it has to Smartlinx 3;
- On termination of these Customer Terms, Smartlinx 3 will cease providing its Internet Services to the Customer and all amounts which the Customer owe to Smartlinx 3 will immediately become due and payable. Smartlinx 3 shall not be liable to the Customer for any loss or damage suffered, or claimed to have been suffered, by the Customer on or following termination of the supply of Smartlinx 3’s Internet Services to the Customer.
- The Customer may terminate these Customer Terms by providing Smartlinx 3 with one month’s written notice to the address provided in the Notice section;
- Termination by the Customer may be subject to any additional terms, which may have been agreed to as part of an application completed via telephone as outlined in section 3;
- In the case where a customer is bound to a certain term, subject to the notice requirements for the termination above, any customer wishing to terminate a contract for connection and services early, shall pay an early termination fee equal to the unfulfilled portion of the monthly service charges (e.g. if a 12 month contract is terminated after 8 months and the customer has paid the first 8 months service charges, the early termination fee will be an amount equal to 4 month’s service charges remaining unpaid under the contract
If either party terminates the Internet Service or these Customer Terms during a billing period, any applicable charges for that period remain payable. Smartlinx 3 will not refund a pro-rata portion of any minimum monthly fee paid in advance.
Notwithstanding this clause, if the Customer fails to pay any monies, commits any act of bankruptcy, or being a company does any act which would render it liable to be wound up or have a receiver appointed over its property, Smartlinx 3 may (without prejudice to any other remedies available to it) suspend or terminate these Customer Terms and the proportion of the monies owed will fall immediately due and payable. The Customer shall pay any costs incurred by Smartlinx 3 in relation to such termination.
- Intellectual Property
Ownership of all intellectual property rights in respect of all documents, technical specifications, design drawings, charts, plans and software relating to the Internet Service shall belong to Smartlinx 3.
- Dispute Resolution
In the event of a dispute between the parties in relation to these Customer Terms, the Customer shall first seek to resolve such dispute by contacting Smartlinx 3’s Helpdesk. If the Helpdesk is not able to resolve the Customer’s concerns the matter will be escalated to the Customer Services Manager.
- Smartlinx 3 may assign or transfer its rights and responsibilities under this Customer Terms to another party. Smartlinx 3 will provide the Customer with written notice in advance if it intends to do this;
- Smartlinx 3 may subcontract the performance of any of its obligations and responsibilities under this Customer Terms to a third party; and
- The Customer may not assign or transfer any of its rights or responsibilities under these Customer Terms to anyone without Smartlinx 3’s prior written consent.
- If any provision or part of these Customer Terms is held to be invalid, unenforceable or illegal for any reason, these Customer Terms will be deemed to be amended by the addition or deletion of wording as appropriate to remove the invalid, unenforceable or illegal provision or part, but otherwise to retain the provision and other provision of these Customer Terms to the maximum extent permissible under applicable law.
- No delay, neglect or forbearance by a Smartlinx 3 in enforcing against the other any provision of these Customer Terms will be a waiver, or in any way prejudice any right, of that party;
- None of the provisions of these Customer Terms will be considered to be waived by Smartlinx 3 except when such waiver is given in writing; and
- No waiver by Smartlinx 3 of any breach will be deemed a waiver of any continuing or reoccurring breach, unless it is expressly agreed to be so in writing by Smartlinx 3.
- The parties will perform their respective obligations under these Customer Terms as independent contractors to each other;
- Nothing in these Customer Terms will create, constitute or evidence any partnership, joint venture, agency, trust or employer/employee relationship between the parties, and neither party may make or allow to be made, any representation that any such relationship exists between the parties;
- Neither party will have the authority to act for, or incur any obligation on behalf of, the other party, except as expressly provided for in this agreement.
- Termination of these Customer Terms for any reason will not affect such rights and obligations of the parties as are intended to survive the termination.
New Zealand Law Applies
- These Customer Terms are governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Agreement.