This Agreement is for the provision of Equipment and/or Services from Smartpay New Zealand Limited and/or its subsidiaries.
1. DEFINITIONS
1.1.
“Abuse” means any damage to the Equipment that is not caused by fair wear and tear and includes, but not limited to, damage caused by liquid, electricity, impact or use outside normal operating conditions;
“After hours” means all hours on public holidays and weekends and Mon to Fri 5.00pm to 8.30am;
“Agreement” means this agreement, its Schedules and terms and conditions, any other terms and conditions specifically relating to the various Equipment and/or Services provided, and all other documents forming part of this Agreement including the Customer Services Agreement;
“Application Form” means the application form on the front page of this Agreement;
“Business Hours” means 8.30am to 5.00pm Mon to Fri, excluding weekends and public holidays;
“Commencement Date” means the date of this Agreement;
“Company”, “we”, “our” or “us” means Smartpay Limited, its assignees, successors and any subcontractor engaged by, the Company to provide the Services;
“Components” or “Parts” means any component part or complete unit of the Equipment;
“Customer”, “you” and “your” means the person(s) or legal entity named overleaf. If there is more than one, and/or it means each of you separately and all of you jointly and severally;
“Customer Commission” means the commission rate paid by us on the sales of End User Services made by you under the Agreement;
“Customer Services Agreement” means the customer services agreement entered into by the Customer and the Company relating to the various Equipment and/or Services provided;
“Location” means the place the Equipment and or Service has been located and/or where the Software has been installed;
“e-Voucher” means a prepaid electronic voucher that contains a pin or code and allows a user to use Services;
“Early Termination Fee” means a fee of $600.00;
“End User” means the consumer who will purchase products and/or services from you;
“End User Service” means any and all Services provided to you for the use by an End User including e-Vouchers;
“Equipment” means all equipment, terminals, Software and accessories provided by us to you (if any), and includes all equipment supplied in addition to or in substitution of the equipment detailed overleaf;
“Fees” means all the sums payable to us by you under this Agreement, over the full Term;
“Guarantor(s)” means those person(s) guaranteeing the obligations of the Customer under this Agreement;
“Initial Term” means the period from the Commencement Date and running for the initial term provided for in the Customer Services Agreement;
“Minimum Weekly Transaction Fee” or “Transaction Fee” means a fee payable in addition to the Transaction Fee, if the minimum number of transaction per week is not met, chargeable to you per week at the discretion of us;
“Renewal Term” has the meaning given to that term in clause 16.1;
“Reseller” means the person or business that is detailed overleaf;
“Return to Depot” means the Equipment returned by you to our Service Centre for repair both the cost of return and repair are at your expense;
“Services” means the Equipment and/or Services to be provided by the Company or any Third Party as detailed overleaf;
“Service Centre” means the place advised to you from time to time which the Service Level will be provided to you;
“Transaction Fee” means the transaction fees (other than the Minimum Weekly Transaction Fee) payable by you in terms of this Agreement;
“Service Level” means the definition as outlined at www.smartpayltd.com
“Support Agreement” “Software” means the executable program and/or application loaded into Equipment or such other item to allow the delivery of the Services;
“Telco” means a company that provides a mobile or landline phone network service;
“Third Party” means any organisation or individual or company who deliverers the Services, or parts of the Services, where these are not in our control;
“Term” means the Initial Term, plus any Renewal Terms, unless terminated earlier under clause 15.
1.2
Any terminology of the singular also includes the plural.
2. EQUIPMENT OWNERSHIP, INSTALLATION AND USE
2.1. In some instances, the Company may agree to provide you with Equipment, in this instance;
a) The Equipment remains our property at all times. You only have a right to use the Equipment for the Term and no right to purchase the Equipment on or before termination of this Agreement. You must protect, and make clear to others our interest in the Equipment. You must not give another person an interest in, or security over the Equipment to others for any reason;
b) You have acted solely on your own judgement in taking the Equipment under this Agreement;
c) You have not relied on any representation about the Equipment by or on behalf of the Company as to its suitability for any particular use;
d) You must not part with possession of or alter the Equipment in any way unless agreed by us in writing;
e) We may act in your name, or on your behalf, to take any steps to protect our interest in the Equipment;
f) We have the right to enter your premises to exercise our right under this Agreement, including removal of the Equipment;
g) We may engage sub-contractors to provide, install, maintain and/or restore all or any of the Equipment;
h) You must not move the Equipment to any other location without our permission in writing;
i) You must use the Equipment for the purpose for which it was designed and in accordance with the manufacturer’s instructions. Opening the cases will be considered Abuse;
j) Replaced Components become part of the Equipment once they have been exchanged for any reason;
k) If additional or different Equipment is provided to you, it will be on the same terms and conditions as contained in this Agreement and you must pay all additional Fees thereof;
l) Only the Company and its service agents shall be permitted to carry out any installation or removal of the Equipment which shall be completed at the Customer’s cost.
3. ASSIGNMENT
3.1 Customer May Not Assign: The Customer may not assign or transfer all or any of its rights, benefits and obligations under this Agreement without the prior written consent of the Company, the granting of which shall be at the sole and unfettered discretion of the Company. If you wish to assign your rights under this Agreement, you can apply to do so on our “Assignment Agreement” form;
3.2 Company May Assign: The Company may at any time assign or otherwise transfer to any party all or any part of its right and obligations under this Agreement and in that event (and subject to clause 3.3) the assignee or transferee should have the same rights against the Customer and the Guarantor as it would have had if it had been a party to this Agreement;
3.3 Company may Assign to Financier: The Company may assign this Agreement to a financier of the Company at its sole discretion. Where such an assignment occurs, the Customer agrees and acknowledges that the financier shall take assignment of all rights of the Company under this Agreement, but shall not take an assignment of any of the Company’s obligations under clause 6 or any other obligation of the Company to the Customer under this Agreement or at law.
3.4 A fee is payable, in advance, to cover the administrative costs of Assigning an existing Agreement;
3.5 Assignment of an Agreement is subject to the creditworthiness of the Assignee and at our discretion
3.6 Information: The Customer and the Guarantor agree that the Company may disclose to a potential assignee or to any person who may otherwise enter into contractual relations with it in relation to this Agreement, such information about either of them as the Company considers appropriate, absolutely or by way of security.
4. PERSONAL PROPERTY SECURITIES ACT 1999 (“PPSA”)
4.1. Where you have received Equipment from us, you agree:
a) That this Agreement creates a Security interest for the value of this Agreement in accordance with the PPSA;
b) To waive your right to receive verification statements connected with any financing statement or financing change statement registered under the PPSA in relation to the security interest arising under this Agreement;
c) To the extent permitted by law sections 114(1)(a) and 133 of the PPSA will not apply;
d) To the extent permitted by law they will have none of the rights referred to in section s116, 199, 120(2), 121, 125, 126, 127, 129, 131 and 132 (PPSA) and
e) That where the Company has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
f) You must do all such things and execute all such documents as we may require to ensure that the Company has a perfected first ranking security interest(s) in the Equipment and for indebtedness relating to the fees payable under the terms of this Agreement; and
g) You will indemnify us for any costs the Company incurs in doing any of the above including registering, maintaining and enforcing the security interest; and
h) You will immediately upon request by us, procure from any person considered by the Company to be relevant to its security position, such agreements and waivers as the Company may at any time require; and
i) You will immediately notify us of any change in (i) your name, (ii) any trading or business name you may use or (iii) in the legal or beneficial shareholding in the Customer.
5. YOUR OBLIGATIONS
5.1. In signing this Agreement you acknowledge and agree:
a) That you accept that the Company will be providing a range of Services, in some cases to be delivered and/or operated on the Equipment listed overleaf or via Equipment you have provided (at exclusive option of the Company);
b) You agree to pay the Fees (including any Transaction and/or Minimum Weekly Transaction Fees) on or before the dates specified in the Agreement for the Term of the Agreement;
c) You must provide at your cost or purchase from us a suitable power supply and/or telephone connection and internet connection to enable the Equipment and/or End User Services to operate;
d) You must if installing Retail Radio provide at your cost or purchase from us an adequate sound system comprising of speakers and amplifier to which the SAM can be connected;
e) To ensure that suitable staff are trained in and available for the sales, operation and delivery of the Equipment and/or End User Services and from time to time available to carry out minor checks and adjustments to Equipment;
f) To immediately call the Service Centre to log any defect, fault and/or failure with the Equipment, Services or End User Services;
g) To allow us to have immediate access during Business Hours to install, inspect, test, repair, replace or upgrade Equipment;
h) To not commit any Abuse of the Equipment, including attempting to modify or alter the Equipment without our consent;
i) To pay for the repair or replacement of the Equipment if Abuse occurs, whether or not such Abuse is your fault or caused by you.
j) To keep the Equipment in the same good working condition as at the commencement of this Agreement excepting fair wear and tear;
k) To have the Equipment repaired and maintained in accordance with the manufacturer’s instructions;
l) To not represent that we or the Reseller will pay for any repair or maintenance work done by others;
m)To immediately notify us of any loss, damage, or destruction to the Equipment, no matter how it occurred;
n) To obtain and maintain any appropriate consents (such as building or landlord) as may be necessary to provision the Equipment, Services or End User Service;
o) To first obtain written consent of and comply with the directions of us or any Third Party relating to the use of our or the Third Party’s marks, logos or advertising materials;
p) To ensure that the Equipment:
(i) is used in a careful and prudent manner and solely for the purpose intended by its manufacturer and in accordance with the manufacturer’s instructions;
(ii) is kept in its possession and under its control at the place at which it is installed or at such other place approved by the Company;
(iii) shall not be used in contravention of any policy of insurance relating to it; and
(iv) is used solely for the purposes of and incidental to the Customer’s business;
q) To ensure that every user and/or operator of the Equipment complies with all laws affecting:
(i) the Equipment; and
(ii) the use and possession of the Equipment;
r) To ensure that no user and/or operator interferes with any identification marks, labels, logos or notice on the Equipment;
s) Not to allow the Equipment to be used or permit anything to happen to the Equipment whereby the warranties relating to the Equipment may become inoperative or be prejudicially affected.
6. MAINTENANCE/SUPPORT OBLIGATION OF THE COMPANY
6.1 Provided all Fees have been paid, then we will provide the Service Level to you during the Term of this Agreement. In the event that you have received Equipment and a replacement Part is required then we may use either new or refurbished Parts;
6.2 Telephone support will only be available during business hours unless you have entered into a separate Service Level Agreement;
6.3 We will use all reasonable endeavours to respond to service calls in accordance with the Service Level however we make no guarantee as to the time period for such a response;
6.4 We are not obliged to provide the Service Level if prevented from doing so by circumstances beyond our control or the control of any Third Party that provides the Service Level.
7. OTHER TERMS AND CONDITIONS
7.1 The person signing this Agreement confirms that they are properly and duly authorised to sign on behalf of the Customer. Should they not be authorised then they agree to accept full responsibility for all aspects of this Agreement on a personal basis;
7.2 This Agreement is not binding on us until accepted and signed by an authorised signatory of the Company but it is binding on you once you have signed this Agreement;
7.3 In some instances Services and/or End User Services will require specific additional terms and conditions (including terms of Third Parties). If not specifically noted in these terms and conditions, we will provide these to you and those terms and conditions also form part of this Agreement. Further, where those terms and conditions are not consistent with these terms and conditions, then these standard terms and conditions will take precedence;
7.4 This Agreement, and any other specific terms and conditions provided relating to Service or End User Services, is the whole Agreement between us, and you have not relied on any other statement, document or promise made by a third person introducing you to us, whether before or after this Agreement is executed. You acknowledge that we may pay a commission to that introducing person or business;
7.5 The terms of this Agreement cannot be varied or waived by you without our written consent;
7.6 Any provisions which are invalid in law will be ineffective but will not make any other provisions invalid;
7.7 You will indemnify us against any claim or loss suffered by us as a result of you being in breach of any terms and conditions imposed by any Third Party in relation to supply of Services or End User Services or the Equipment.
7.8 Set-off: If the Customer fails to make any payment to the Company when due, the Company may debit the amount to any other account of the Customer with the Company or any related company or deduct it from any amount the Company or any such related company owes the Customer.
8. GOVERNING LAW
8.1. This Agreement is governed by and shall be construed in accordance with the laws of New Zealand.
9. ACCESS AND REPOSSESSION
9.1. You must allow us to enter any premises where we believe that the Equipment is located for the purposes of exercising any of our rights (including retaking possession) of the Equipment in accordance with this Agreement.
10. OUR RIGHT TO COMPLETE THIS AGREEMENT
10.1. You authorise us to fill out any spaces left blank by you in this Agreement, including but not limited to, the Term or Service Level or Fees, and to correct any errors relating to any aspect of this Agreement.
11. POWER OF ATTORNEY
11.1. The Customer irrevocably appoints the Company and any authorising officer of the Company severally to be the attorney of the Customer to execute all such documents and to do such things as may be required on the part of the Customer to give effect to the provisions of the this Agreement.
12. PRICE
12.1 The pricing will be at the rates as quoted at the time of entering this Agreement and the Company reserves the right to vary the rates from time to time by giving at least 30 days written notice to the Customer. The variation shall take effect from the date nominated in the notice;
12.2 The Company may pass on any increase in the cost of the Service, the installation or provision of the Service where such increase is caused by
(i) any act, omission or delay by you or any variation in the Equipment or Service ordered, requested by you after the date of this Agreement or any material fact not discoverable at the date of this Agreement;
(ii) any Third Party.
13. PAYMENT OF FEES/COMMISSION/e/VOUCHERS
13.1 There is no right of off-set for any reason and you agree to pay all Fees (including GST) on the due date. If you are receiving Equipment you must pay all Fees (plus GST) whether or not the Equipment is, for any reason, not useable;
13.2 Payments shall be weekly and/or monthly by direct debit from your bank account to the Company unless otherwise agreed by us in writing. Fees may be changed with 30 days written notice to you;
13.3 Interest will be charged at a rate of 2% per month on the outstanding balance as from the date of default and shall compound weekly or monthly depending on the payment period;
13.4 You agree to pay all costs which we incur by your breach of this Agreement, including enforcement;
13.5 Payment is not deemed to have been made until it has been cleared by the Company’s bank.
14. INSURANCE
14.1 The Equipment is at your risk from the date of signing this Agreement;
14.2 You must insure and keep insured the Equipment with an insurer approved by the Company. Such insurance must:
a) Be for such risk and for such amount or amount(s) and on such terms as are set out in this Agreement or as are otherwise acceptable to the Company;
b) Provide all losses are payable to the Company.
14.3 You must provide us with details of the insurer and policy number if requested.
14.4 If you do not effect or keep such insurance, the Company may effect or keep such insurance at your cost either in the name of the Company or the Company and the Customer;
14.5 You must immediately notify the Company and the insurer of the happening of any insured event in relation to the Equipment;
14.6 Any moneys payable under any insurance policy covering the Equipment must be paid to the Company unless otherwise consented to in writing by the Company;
14.7 The Company may:
a) apply the insurance moneys to replace or repair the Equipment if in the Company’s opinion the insurance moneys are adequate for this purpose;
b) terminate this Agreement by giving notice to the Customer if in the Company’s opinion the insurance moneys are not adequate to repair the Equipment; and
c) be entitled to receive and apply any insurance moneys towards payment of Fees and other moneys payable to the Company under this Agreement.
14.8 The Customer appoints the Company its attorney to recover and/or compromise any claim for loss or damage under any insurance policy relating to the Equipment or otherwise to give valid releases or receipts for such claims.
15. TERMINATION AND DEFAULT
15.1 It is fundamental provision of this Agreement that should any of the following events occur:
a) You or the Guarantor fails to observe or perform any of the provisions of this Agreement including failure to make payment of any Fees and such default continues for 7 days; or
b) You breach of any of the terms of the insurance policy in relation to the Equipment or it is refused or cancelled; or
c) We discover a false statement or omission made by you in this Agreement; or
d) An application is made to adjudicate you or the Guarantor bankrupt or an application or resolution is passed for your or the Guarantor’s liquidation or winding up, or you or the Guarantor are dissolved or struck off the NZ Companies office register; or
e) A receiver, liquidator, administrator or like person is appointed to you or the Guarantor or any part of your assets and income or the Guarantor’s assets and income; or
f) Any act which you cause or permit threatens the safety, condition or safe keeping of the Equipment; or
g) You or the Guarantor ceases to carry on your business or you or the Guarantor repudiate this Agreement or your or the Guarantor’s conduct indicates that you or the Guarantor no longer intend to be bound by this Agreement,
h) You or the Guarantor allows a judgment or order against it to remain unsatisfied; THEN we may at any time, and without notice, terminate this Agreement and (if applicable) take possession of the Equipment. In addition you provide us with the right to request suspension or termination of the Services until such time as the default has been rectified and/or all Fees owed have been paid;
15.2 At the date of termination you shall pay us the following cumulative amount (“Payout Amount”):
a) Any fees owing which you have not paid, including any cost incurred by us including those incurred in obtaining or attempting to obtain possession of the Equipment and the removal, storage and sale of the Equipment (if any);
b) All interest accrued on such amounts at the rate of 20% per annum from the due date until payment is made to the Company calculated on a daily basis;
c) The market value of the Equipment (if any), if it is not returned;
d) The cost of any repair or damage to Equipment (if any);
e) Any termination Fees, payable at the then current rates charged by us;
15.3 This does not limit your liability to us for any other legal action we may have against you for any breach;
15.4 Any fees owing at the date of termination shall be immediately paid and the Service Level shall cease to be provided at that date;
15.5 Any fees that have been paid at the date of termination shall be deemed to have been fully utilised;
15.6 After termination we may issue an invoice to you for any additional Fees (including costs of collection and/or interest) which shall be immediately paid by you;
15.7 After the termination or expiry of this Agreement, we may enter the Location and remove all Equipment and Software relating to the Services provided. You also agree to return immediately any
i) documentation
ii) marketing material
iii) collateral
iv) other information or data relating to the Services provided by us
v) e-Vouchers remaining in your possession;
15.8 Should we terminate this Agreement under 15.1 and you use the e-Voucher Service, then the Early Termination Fee will also be payable to us.
16. END OF TERM
16.1 This Agreement shall be automatically extended beyond the Initial Term for further successive periods of 12 months (each a “Renewal Term”) unless you deliver notice to us within the final 3 months of the Initial Term or then current Renewal Term (as applicable) terminating this Agreement at the expiry of the Initial Term or the then current Renewal Term (as applicable).
16.2 The Customer acknowledges that, where it is taking Equipment, it has taken or will take possession of the Equipment on the Commencement Date.
16.3 Where you have taken Equipment and when this Agreement is duly terminated, you must, on the day of termination, return the Equipment to us at our registered office and pay for any costs of delivery. Failure to do so will result in us invoicing you for the market value of the Equipment.
17. EXCLUSION OF LIABILITY
17.1 All conditions, warranties and guarantees implied by law are excluded. We have made no representation or statement and give no condition, warranty or guarantee about
i) the condition, quality, fitness, suitability or safety of the Equipment
ii) the date the Equipment will be delivered,
iii) any taxation issues or
iv) the Service provided.
17.2 We do NOT guarantee that the Equipment will work at all sites and in all instances. It is up to you to ensure that the Equipment meets your needs and the Service is acceptable before signing this Agreement;
17.3 You acknowledge that the Services and the Equipment supplied are for business purposes only and therefore that the provisions of the Consumer Guarantees Act 1993 do not apply. We are not liable to you or anyone else for any loss, damage, expense or claim, direct, indirect or consequential arising out of the performance or non-performance of the Product and/or Equipment and/or Services;
17.4 In any event, the total liability of the Company for any breach will be limited, at the option of the Company, to any one or more of,
i) the replacement of the same or equivalent Equipment or Service,
ii) the repair or payment for repair of such Equipment,
iii) repayment of all Fees paid up to the date liability is proven;
17.5 We take no responsibility nor accept any liability for the performance of Third Parties in relation to the delivery of Services;
17.6 We take no responsibility nor accept any liability for the accuracy or statutory compliance of messages scripted by you;
17.7 We accept no liability for claim or prosecutions arising from any music, video, advertising or message placed as part of the Service.
18. GUARANTEE
18.1 The Guarantors, jointly and severally guarantee to pay to the Company all fees that become owing by the Customer under this Agreement. The Guarantors give this Guarantee because the Company has agreed, at your request, to enter into this Agreement;
18.2 The Company may enforce this Guarantee against the Guarantors before exercising its rights against you. This Guarantee remains enforceable against the Guarantors in any event whatsoever, including changing of the terms, releasing you from some obligations and/or giving you extra time to pay.
18.3 The Guarantors acknowledge that the Customer may acquire from the Company Equipment and/or Services additional to that described in the Agreement and this Guarantee extends to that further Equipment and/or Services.
18.4 The guarantee in clause 18.1 will be a continuing guarantee until actual performance by the Customer of its obligations under this Agreement.
18.5 As a separate and independent stipulation, the Guarantor agrees to indemnify the Company against any loss or damage the Company may suffer or sustain by reason of any breach by the Customer of the terms of this Agreement or by reason of this Agreement becoming void or unenforceable in any respect against the Customer.
19. THE PRIVACY ACT 1993
19.1 The Customer, directors and Guarantors authorise us to collect, retain and use personal information about you and/or the Guarantor (the “Information”) including directors in the case of a limited liability company or trustees in the case of a trust.
19.2 The Customer, directors and Guarantors authorise us (and any financier to whom this Agreement may be assigned pursuant to clause 3.3 (“a financier”) to provide and request the information to and from any person for assessing the Customers, directors and/or Guarantors credit worthiness, administering the financing of the Equipment and/or Services, enforcing our (or any financier’s) rights (as applicable) under this Agreement or at law, marketing goods and services provided by us or our related companies or a financier (as applicable) and providing information to or requesting information from, Third Parties or credit agencies for the purpose of maintaining effective credit records and assessing the Customers, directors or Guarantors credit worthiness;
19.3 The Customer irrevocably acknowledges:
a) That the information shall be deemed to be held by the Company, Third Parties and by any other person for the purposes described above;
b) That where the information can be readily retrieved, the Customer shall have access to it, the right to request correction and the right to be notified of action taken in response to any such request, subject to payment of any reasonable charge.
20. NOTICES
20.1. Service: Any notice to be served under this Agreement shall be addressed to the party upon whom it is to be served and shall be sent to that party’s address specified on the execution page of this Agreement or to such address as may from time to time be given in writing by a party to the other parties. Any such notice shall be deemed to have been duly served in the case of a communication by letter on the day after being posted by fastpost, correctly addressed and stamped or, if given by hand when actually delivered by personal delivery to the address specified on the execution page of this Agreement, in the case of a communication by facsimile, when transmitted, Material transmitted by facsimile shall for all purposes be regarded as being in writing.
21. SOFTWARE AND INTELLECTUAL PROPERTY
21.1 Where we provide you with Software to operate on your hardware (as supplied by you), or Equipment supplied by us to provide the Service, you agree that you have no ownership of this Software and all intellectual Property remains with us. Further, should we further develop the Software, with or without your assistance and knowledge, you agree that all rights to such developments remains with us;
21.2 Associated electronic music, electronic video and message files supplied by us remain the property of us;
21.3 Providing all Fees have been paid, then we will pay any music licensing fees (excluding the Public Performance Tariff which you will pay directly to PPNZ)
21.4 You are not to permit or allow staff or any Third Party any access to the Software and/or files in any way which may facilitate the analysis, copying, reverse engineering of the operating system or copying of any music, video or message files. We reserve the right to claim compensatory or other relief for breach of this condition.
22. END USER SERVICES
22.1 You agree that you will not enter into any agreement with any other party for the provision of Equipment, Services or End User Services at the Location that are the same or similar to those provided under this Agreement and that we will be the exclusive provider to you;
22.2 You grant us the right to use (at no cost) your branding and other information as to your Location and other contact details and business information, on our captive portal and/or web site and/or other place for marketing and promotion of the locations for access to the Services or End User Service;
22.3 You also agree to display documentation, marketing material, price lists, collateral or other information in relation to the Product, Services and/or End User Services;
22.4 You agree to make all reasonable efforts to ensure the ongoing functioning of the Services or End User Service;
22.5 You agree to pay any costs incurred by us due to any breach of this Agreement and/or any repairs needed to the site infrastructure to restore the Services;
22.6 You must observe and comply with the provisions of the Fair Trading Act 1986, the Consumers Guarantees Act 1993 and all other applicable laws, regulations and requirements of any government or statutory body, including applicable industry guidelines or codes of conduct.
22.7 CONFIDENTIALITY
22.8 This Agreement is confidential and all information in relation to it, including any Software, Services, Equipment, pricing and other commercially sensitive information, is strictly private and confidential. On termination or expiry of this Agreement, you will not divulge any information in it to any third party or use it in any way for your own advantage, unless,
i) the information becomes public knowledge otherwise than by us;
ii) you are required by law to make the disclosure; or
iii) we have consented in writing to the disclosure.
23. CONFIDENTIALITY
23.1 All Services are provided on the basis that the acceptable use policy are in place and updated from time to time, is adhered to by you at all times.
23.2 Prohibited Uses: You agree that you will not: use the Services for any unlawful purpose, defined at the total discretion of the Company, but including any actions that may be construed as being an infringement of any copyright or intellectual property rights, or otherwise is objectionable, or impacts another person in going about their lawful duties and/or constitutes a criminal offence.
24. ACCEPTABLE USE POLICY
24.1. You have been registered as a user of the Services and allocated a specific range of Internet access and usage to the level specified in this Agreement. Any usage in excess of that usage may be charged for at the Company’s total discretion, including the downloading of excessive data, permanently connecting to the services dial up, entering multiple connections without permission, using the Static IP address to provide hosting services (including FTP, P2P and open relays) without permission, and any other operations that impact other users. You must not use the service for any type of spam or unsolicited emails, nor for any indecent or objectionable material. In this case the Company reserves the right, at its option to disconnect and/or cancel your account.
25. EXCESSIVE USE
25.1. As the registered user of the Services, you are responsible for any misuse of the Services, even if the misuse was committed by a friend, family member, or guest with access to your account.
26. SECURITY
26.1. Connection speeds identified with each Service represent theoretical maximums that can be achieved. The Company does not guarantee this speed nor response times or network access.
27. CONNECTION SPEEDS
27.1 Partial Invalidity: If at any time any provision of this Agreement becomes illegal, invalid or unenforceable in any respect then that provision shall be severed from this Agreement and the legality, validity or enforceability of the remaining provisions of this Agreement shall not be affected or impaired in any way.
27.2 Rights Not Prejudiced: The rights and obligations expressed in this Agreement shall not be abrogated, prejudiced or affected by the granting of time, credit or any indulgence or concession to the Customer or any other person whomsoever by the Company or by any compounding, compromise, release, abandonment, waiver, variation, relinquishment or renewal of any of the rights of the Company or by any omission or neglect or any other dealing matter or thing which but for this clause could or might operate to abrogate, prejudice or affect the rights of the Company or the obligations of the Customer or Guarantor under this Agreement.
27.3 Remedies: Time shall be of the essence in this Agreement but no failure or delay on the part of the Company in exercising any right or remedy under this Agreement will operate as a waiver thereof nor will any single or partial exercise thereof or the exercise of any other right or remedy.
27.4 The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.