Fixed Services Terms
Background
This is a Schedule to the Master Services Agreement and sets out terms and conditions specific to the delivery of 2degrees Fixed Services.
1. Fixed Services
1.1 We will provide the Fixed Services to you in accordance with the Agreement, these Fixed Services Terms, the Service Order and/or associated Service Delivery Agreement during the Fixed Service Initial Term.
2. Commencement and Initial Term of a Service Order
2.1 Each Service Order has effect from the date the Service Order is signed by the last party (“Commencement Date”) and, unless terminated earlier in accordance with this Schedule or the Agreement, will remain in effect until the end of the Initial Term.
2.2 The initial term of a Service Order:
(a) starts on the Commencement Date; and
(b) will continue for the period specified in the Service Order, such period to be calculated from the date the last Service in the relevant Service Order has been delivered and invoiced, (the “Initial Term”).
2.3 We do not represent or warrant that we will deliver the Fixed Services by a particular date and we will not be liable for any delay in installation (including, but not limited to, delays in obtaining access to any property or premises). Time for delivery of the Fixed Services is not of the essence.
3. Expiry of Initial Term
3.1 On the expiry of the Initial Term we will continue to provide the Fixed Services on a month by month basis until:
(a) either party gives 30 days’ written notice to the other that it wishes to terminate the Fixed Services; or
(b) the Fixed Services are terminated in accordance with this Agreement.
4. Ordering Fixed Services
4.1 Any Services you select will be detailed in a Service Order. We will issue a variation to a Service Order for a Service in the event of any additions, changes, add-ons, or reductions in the scope of the Services once the instalment and deployment charges are known to us. We may reject your Service Order for any reason at our discretion, including if:
(a) the results of the credit and/or reference checks on you are not acceptable to us;
(b) you have proposed amendments to the Service Order that are unacceptable to us;
(c) any agent or Third Party Supplier that we will or intend to engage in order provide the Services is not available or unable to perform services in a manner that is acceptable to us; or
(d) you provide us with incorrect information.
4.2 Each Service Order is subject to and conditional on:
(a) you obtaining, at your cost, any necessary landowner or building owner consent required in connection with the performance of the Fixed Services (for example in relation to the installation of any Equipment). If any landowner or building owner does provide any necessary consent, or provides consent on conditions that are not satisfactory to you or to us, then that Service Order will terminate; and
(b) the satisfaction of any conditions set out in the Service Order and/or associated Service Delivery Agreement.
5. Termination of Fixed Services
5.1 If the Fixed Services are subject to an Initial Term, you may terminate all or part of those Fixed Services before the end of the Initial Term on giving us no less than 60 days’ written notice, however you must pay any applicable Early Termination Charges.
5.2 You will be deemed to have terminated any relevant Fixed Services if you cease using those Fixed Services for a reasonable period of time, and the termination date will be the date that you last used those Fixed Services. If you are deemed to have terminated the Fixed Services before the expiry of the Initial Term, you must pay any applicable Early Termination Charges.
5.3 Either party may terminate a Fixed Service in accordance with the termination provisions contained in the General Terms.
6. Charges
6.1 You must pay all Charges set out in the Service Order for the Fixed Services.
6.2 At any time during the Initial Term we may on giving you at least 30 days’ written notice vary the Charges for that Fixed Service.
6.3 If you do not accept the variation of the Charges, you may terminate the relevant Service Order to which the price increase relates to by giving 30 days’ notice. If the Service Order is terminated in these circumstances, you will not be liable for any Early Termination Charges or other penalties. Nothing in this clause 6.3 will prevent us at any time from increasing prices, upon reasonable notification to you, due to circumstances that are outside our reasonable control, such as changes that result from a Third Party Supplier of a regulated input where there is no effective competition and we are not in a position to negotiate the price of that input.
7. Payment of Charges for Fixed Services
7.1 Except as otherwise provided in a Service Order, we will invoice you monthly:
(a) in arrears for Installation Charges and Usage Charges; and
(b) in advance for the Monthly Fee and all other Charges payable for the Fixed Services.
7.2 On delivery of a Fixed Service, unless specifically stated otherwise in the relevant Service Order, we will invoice you for the Monthly Fee for any part month, being the pro-rata share for that Fixed Service from the date of delivery.
7.3 We will email our monthly invoice to the email address you provide us.
7.4 You must pay all non-disputed Charges to our nominated bank account by the Payment Date.
8. Disputed Charges for Fixed Services
8.1 If you dispute any Charges that relate to the provision of Fixed Services, you may withhold payment of the amount of Charges in dispute, provided that you notify us in writing that you dispute the Charges:
(a) within 45 days of the invoice date; and
(b) detail the basis of the dispute and grounds for withholding payment and, if there is more than one ground, identify the amount attributable to each ground.
8.2 Any dispute under this clause 8.1 must be dealt with in accordance with the procedures set out in clause 22 of the General Terms.
9. Late Payment
9.1 If you do not pay an invoice by the Payment Date, subject to any other rights or remedies we have under this Agreement, we may:
(a) charge you a default interest rate being the Bank of New Zealand’s base commercial overdraft rate from the Payment Date on the undisputed overdue Charges, as determined by us, plus 1.5% per month or any other rate notified to you by us;
(b) charge you all reasonable expenses we incur (including reasonable legal costs and debt collection fees) in relation to recovering payments due;
(c) charge you an amount equal to the cost we incur in relation to any bank or financial institution fees because your cheque, or direct debit is not honoured; or
(d) suspend or terminate the Fixed Services in accordance with clause 14 of the General Terms.
10. Planned Outages
10.1 From time to time we may suspend the provision of Fixed Services for a Planned Outage due to:
(a) activities or works, including any routine maintenance, remedial work or upgrades to the Fixed Services we may carry out; or
(b) any agents or Third Party Supplier suspending its services in order to carry out works, maintenance or upgrades.
10.2 We will:
(a) notify you of any Planned Outage;
(b) use best endeavours to conduct any Planned Outage within the hours of 11 pm to 6 am inclusive where we believe that is practicable; and
(c) in respect of any notice of a Planned Outage, provide the following information:
(i) a brief explanation of the reason for the Planned Outage;
(ii) the intended date, time and duration of the Planned Outage;
(iii) a description of the Fixed Services that will be affected by the Planned Outage; and
(iv) the name and contact details of our representative(s) that you may contact for further information about the Planned Outage.
10.3 For the avoidance of doubt, the information we provide will be equivalent (including to timing) to that provided to 2degrees’ fault channel or Managed Services Team.
11. Unplanned Outage
11.1 We may suspend the provision of Fixed Services due to any Unplanned Outage.
11.2 We will use reasonable endeavours to:
(a) provide you with as much notice as possible of the existence of any major Unplanned Outage and in any event as soon as reasonably practicable after we become aware of that outage; and
(b) keep you informed about the extent duration of the Unplanned Outage. and
11.3 If you become aware of an Unplanned Outage and we have not notified you of that Unplanned Outage, you must make reasonable efforts to notify us as soon as reasonably practicable of that Unplanned Outage.
11.4 We will, where practicable, give you reasonable notice of any other works or activities that we intend to carry out that are likely to adversely affect the delivery of any Fixed Service.
12. Faults
12.1 If you experience a fault in the Fixed Services, you must report it to us and we will respond in accordance with the relevant Service Delivery Agreement or otherwise within a reasonable period of time.
12.2 Following any investigation we may carry out as a result of a fault that you reported to us, if there is no fault in the Services or Equipment, we may charge a fixed fee set out in the applicable Service Delivery Agreement.
12.3 We are not responsible for remedying any faults caused by, or in relation to any of your equipment, software or other products that are used in connection with the Fixed Services.
13. Obsolete or replaced Fixed Services
13.1 We may cease providing you with the Services (or any part of the Fixed Services) if: Fixed
(a) it is no longer viable (for example for financial, operational or technological reasons) to provide a Fixed Service and/or that Fixed Service is replaced by us with a new service; or
(b) any Equipment, software, hardware, systems or technology used to provide the Fixed Service becomes outdated, uneconomical or unsupported;
(c) any Third Party Services that form part of, or are used in the provision of the Fixed Service are no longer available or not available on terms that are acceptable to us; or
(d) we are required by law or a legal requirement to cease providing a Fixed Service.
13.2 We will give you at least 30 days written notice of any termination of any Fixed Service under clause
13.1 except if we are required to terminate the Fixed Service (or any part of it) earlier under clause 13.1(d).
14. IP Addresses and Phone Numbers
14.1 We may allocate phone numbers and/or internet IP addresses to you to enable you to use the Fixed Services. Subject to the Terms for Local and Mobile Number Portability, the allocation of these numbers does not confer any ownership, licence holder, nor leaseholder rights to those numbers or addresses, and you may not transfer those numbers or addresses to any other party.
14.2 Under extraordinary circumstances, we may need to change any phone number or IP address allocated to you. However we will give you as much notice of its intention as is reasonably possible to do so, where required.
15. MAC Request
15.1 You may submit an online MAC Request on the requisite form or email your Client Manager directly. MAC details are further set out in the relevant Service Delivery Agreement.
16. Definitions
16.1 In this Schedule 2, the following terms have the following meanings:
Commencement Date has the meaning set out in clause 2.1.
Initial Term has the meaning set out in clause 2.2.
Installation Charges means Charges for installation services that we carry out in accordance with any Service Order or Service Delivery Agreement.
Monthly Fee means recurring Charges for the Fixed Services as set out in any Service Order or Service Delivery Agreement.
Network means 2degrees’ network infrastructure, including network hardware such as routers, switches, cabling that are essential in facilitating the exchange of data communications.
Payment Date means the due date for payment of the Charges for the Fixed Services recorded in the relevant invoice for those Charges.
Planned Outage means the planned unavailability of or interruption to all or part of the Fixed Services.
Service Delivery Agreement means a document that sets out the product specification and service levels which apply to a particular Fixed Service.
Terms for Local and Mobile Number Portability means the requirements for local and mobile number portability determined under the Telecommunications Act 2001.
Unplanned Outage means the unplanned unavailability of or interruption to all or part of the Fixed Services.
Usage Charges means Charges for your use of the Fixed Services that are calculated in accordance with any Service Order or Service Delivery Agreement.
17. Interpretation
17.1 In these Fixed Service Terms, unless the context requires otherwise, capitalised terms have the meaning given to them in these Fixed Service Terms or as otherwise defined in this Agreement.
17.2 If there is any inconsistency or conflict under this Fixed Service Terms (Schedule 2), a Service Order and the General Terms, the order of priority will be as set out in clause 2.3 of the Master Services Agreement.
