Terms and Conditions and Applicable Parties
These Terms and Conditions are made between Managed ITC Limited (“Managed ITC” or “we” or “our”) and the user of Managed ITC services (the “customer “or “you” or “your”). We reserve the right to amend these conditions from time to time and will post on our website, any amended terms at least 15 days prior to their taking effect.
These Terms and Conditions replace all previous Terms and Conditions, for any customer who does not have a signed and active Master Services Agreement (MSA), and apply for services to both existing customers and new customers. By using our services Managed ITC you are deemed to have accepted these terms and conditions and they apply as of the date of your application for Services.
If you are a using our services for business purposes you agree that provisions of the Consumers Guarantees Act 1993 do not apply to the full extent permitted by law.
This agreement and the relationships between the parties shall be governed by the laws of New Zealand.
Acceptance
Any instructions received by Managed ITC from the Client for the supply of Goods and/or Services shall constitute acceptance of the terms and conditions contained herein.
Applicable Parties
You may not transfer this agreement without our prior written consent. We have the right to transfer our rights and obligations under this agreement without your consent.
Our Services
We are not obliged to provide services unless we accept your application. We can decide whether or not to accept any application.
Managed ITC aims to provide you with the highest quality of services. Due to the nature of IT, these services may be interrupted from time to time due to planned or unplanned maintenance, equipment failures and other factors which may or may not be within our control. We will endeavour to notify you of any planned maintenance on our website (manageditc.com.au) but this may not always be possible where critical issues arise. We also use some external services e.g. Chorus networks, and have no control over their equipment and services. In the event of service failure, we will endeavour to restore services as quickly as possible and to minimise disruption to customers.
We reserve the right to change our rates from time to time and if we increase any rates, we will give you as much notice as reasonably possible.
Customer Responsibilities
Customers agree to comply with all applicable laws and regulations of New Zealand. It is your responsibility to ensure such compliance. Your use of our services must be for lawful purposes only.
Services must not be used for activities that are unlawful, antisocial, pornographic or similarly distasteful in nature or for spamming or sending of unsolicited email including sending to email addresses maintained by Managed ITC; or breach of copyright owned by another. Breach of these provisions may result in suspension and/ or termination of services. Managed ITC will be the sole arbiter of what constitutes a violation of these provisions.
Customers must ensure that contact information provided to us is correct and up-to-date and maintain confidentiality of any username and passwords provided.
They shall remain in force until either Managed ITC or the customer notifies the other in writing (including by e-mail) of intent to terminate agreement.
Prices
Prices do not include software. Any software that is provided by Managed ITC to give access remains the property of the software’s owners and the customer is responsible for any fees or donations asked for by the software’s owner. Payment to Managed ITC for your account must be paid in advance.
Payment
The customer agrees to pay for services set up with Managed ITC, whether directly or through a third party, regardless of whether these services are used or not. Details of account charges and contract periods are as displayed on the website or agreed expressly with Managed ITC, and may be subject to change by Managed ITC.
All accounts must be setup with direct debit or credit card. If a credit card is provided to pay for the initial invoice, this will be used for payment until a direct debit is setup. Credit card payments will include a $2 or 2.33% bank fee.
Payment is due according to the terms stated on the invoice, paid in New Zealand Dollars. Accounts unpaid within the payment terms may be suspended and/or terminated by Managed ITC immediately at Managed ITC’s discretion.
Overdue accounts may be subject to interest charge of 5% /month on the outstanding balance. Special arrangements for business customers to pay by the 20th of the following month may be available.
Costs incurred on collection of any overdue debts, including legal and debt recovery costs on a solicitor and client basis, are fully payable by the customer.
Payment for services is normally in advance, unless agreed in writing with Managed ITC. Payment terms are displayed on the Managed ITC website.
Invoices and statements are sent by email.
Any query regarding excess time or data charges must be made within 7 days of the receipt of the invoice. Managed ITC reserves the right to limit their exposure to the user by suspending the account until the full amount is paid. The time in suspension is not deducted from the following months subscribed time.
Charges are normally exclusive of GST unless otherwise specified.
Fair Use Policy
All Managed ITC services are subject to our Fair Use Policy. We may apply our Fair Use Policy where in our reasonable opinion your usage of our Services is excessive and/or unreasonable as detailed in this paragraph.
We have developed our Fair Use Policy by reference to average customer profiles and estimated customer usage of our Services.
If your usage of our Services materially exceeds estimated use patterns over any month, or is inconsistent with normal usage patterns, then your usage will be excessive and/or unreasonable.
If your usage is excessive and/or unreasonable we may contact, you to advise you that your usage is in breach of our Fair Use Policy.
We may then request that you stop or alter your usage to come within our Fair Use Policy.
If your excessive or unreasonable usage continues after receipt of a request to stop or alter the nature of such usage, we may without further notice, apply charges to your account for the excessive and/or unreasonable element of your usage; suspend, modify or restrict your use of the Services or withdraw your access to the Services.
Termination of Services
Customers may terminate their account by notice in writing to Managed ITC or by email to [email protected]. 1 months’ notice of cancellation is required and accounts may not be terminated during the period of any fixed contract term. (Consider: cancellation during a fixed term does not release you from paying for the balance of the fixed term whether you use the Services or not.) All charges incurred to the date of cancellation (or expiry of the fixed term) are payable by the customer.
Managed ITC reserves the right to suspend and/ or terminate an account for breach of these terms and conditions. Managed ITC may also terminate services with a customer by normally providing 7 calendar days’ notice of cancellation or is there is a breach of Terms and Conditions Managed ITC may suspend or terminate services immediately.
Upon termination all data relating to the customer stored on Managed ITC equipment will be deleted at a time of choosing by Managed ITC.
Compatibility
Managed ITC warrants that its communications software conforms to established telecommunications industry protocols, and should be compatible with most off-the-shelf consumer communications software. Managed ITC disclaims any express or implied warranty with respect to the performance, capacity, merchantability, or other compatibility issues of its hardware and software products and services.
Indemnification
Unless there is an active signed Master Services Agreement the customer assumes liability for and hereafter agrees to hold Managed ITC harmless, its employees, agents, officers and directors from all claims for lost profits, punitive or other adjudicated damages, expenses, including reasonable legal fees, incurred from usage of any service provided by with Managed ITC. Managed ITC does NOT WARRANT that services will be without interruptions or errors. Managed ITC will not accept any responsibility for costs, damage, disruption or inconvenience from any services disruption or complete loss of service or data (including loss of email and website data), nor from computer virus (and similar malicious programs, including spam), and is not liable for any associated telecommunications, equipment or software charges. Any data stored on Managed ITC equipment is stored at the customers own risk and no responsibility will be taken for loss or damage to the data.
Disputes
Any dispute shall, at the option of Managed ITC, be referred to mediation or arbitration. The Arbitration Act 1996 (or any replacement of that act) shall govern arbitration.
Laws
If any parts of these terms of trade shall be held to be illegal, unenforceable or invalid, the remaining parts shall continue in full force and effect. The laws of New Zealand shall govern these terms of trade and Managed ITC and the Client hereby submit to the non-exclusive jurisdiction of the courts of New Zealand.
Copyrights and Trademarks
Managed ITC does not authorize any client to use Managed ITC or any manufacturer’s trademarks, names or associated materials. To use these trademarks, names and associated materials, prior written approval must be given by Managed ITC or the relevant manufacturer.
Intellectual Property
Unless otherwise agreed in writing, Managed ITC is the owner of all copyright, trademarks and other intellectual property rights that may arise in relation to the services provided and shall only be used by the Client at Managed ITC’s discretion.
The Client warrants that all designs or instructions to Managed ITC will not cause The Managed ITC to infringe any patent, copyright, registered design or trademark in the execution of its obligations to the Client.
Confidentiality and Privacy
We will maintain as secret and confidential all information we obtain from the Client further to these terms and conditions and will not use that information for any reason other than as necessary for providing the services. This obligation will not apply to information that is in the public domain or that is known to us or obtained by us without breaching any obligation to you or that we are required to disclose by law.
The Client authorise us to collect, retain, use and provide to our staff and agents, and any person or body as required by law, any personal information about the Client for the purposes of credit assessment, debt collection purposes, meeting Managed ITC’s obligations to the client, and enforcing our rights against you. The Client has the right to access and require the correction of the Client’s information held by Managed ITC.
Liability
In no event will Managed ITC be liable (whether in contract, tort (including negligence), equity, breach of statutory duty or otherwise) to you for:
Loss of profits or savings, loss of goodwill or opportunity, loss or corruption of data, or wasted staff time; or
Loss, damage, costs or expense of any kind whatsoever which is indirect, consequential, or of a special nature, arising directly or indirectly from any services or products supplied by us to you, even if we had been advised of the possibility of such loss, damage, cost or expense.
To the extent allowed by law, our total liability under any claim of any nature arising directly or indirectly from any service or product will not exceed the fees paid by you for that service or product.
Indemnity
The client indemnifies Managed ITC against any and all liability, losses, damages, costs and expenses of any nature whatsoever awarded against, incurred or suffered by Managed ITC, whether direct or consequential, arising out of or resulting from the Client’s breach of this agreement.
Force Majeure
We will not be liable to you for any breach or failure to perform any of our obligations where such breach or failure is caused by anything beyond our reasonable control, including, but without limitation, inability to obtain supplies, war, civil commotion, terrorism, strike, lockout, an act of God, fire, and natural disaster including floods, earthquakes, tsunamis or other weather phenomena.
If we are unable to perform our duties and obligations under these terms and conditions as a direct result of any such reasons the operations of these terms and conditions will be suspended during the period in which the reason continues.
Fixed Contract Periods and Change of Account Type
Fixed contract accounts via a signed Master Services Agreement can provide a discount for a customer’s commitment to Managed ITC as well as Managed ITC agreeing to a level of professional liability.
Support
Managed ITC will normally provide a telephone support service during normal business hours (subject to specific account conditions). On busy and holiday periods, there may be a delay in answering calls or returning voice messages. This telephone support is for queries relating to the services provided by Managed ITC, and not to general IT/ PC problems. An after-hours service for urgent technical queries may also be available, but is not guaranteed. Managed ITC will endeavour to return customer queries left on voice messages at the earliest opportunity next working day. Queries can also be sent to [email protected].
Broadband Internet
Broadband speed is not greatly determined or influenced by Managed ITC equipment. All broadband speeds affected by your geographic location to your local exchange or cabinet, and potentially your office wiring, or router.
Domain Names
Managed ITC acts a reseller for some domain registrars. Managed ITCwill invoice the customer for the domain or domain renewal in advance. Payment is due before the expiry of the domain. If payment is not received into the bank account of Managed ITC by the due date, Managed ITC may choose to cancel the domain. Managed ITC accepts no responsibility for any loss arising from the cancellation. Any reinstatement of the domain is subject to reinstatement and administration charges, payable in advance. Managed ITC reserves the right to refuse to act as a reseller in certain cases.
Managed ITC’s mail servers are currently fast, reliable and efficient. We can maintain that level of Service only by effective management of email. The mail servers are configured to allow up to at least 20 megabyte emails to be sent or received at any time. Total mail box space should be kept under 40 megabytes at all times. If your mailbox exceeds 40 megabytes or your unread mail has resided there for more than 60 days, Managed ITC reserves the right to remove it in the interests of good mail management.
Managed ITC operates a spam and virus filtering service for email intended to remove spam and virus attachments. Whilst we endeavour to make this as efficient and effective as possible, spam and virus mails may still get to the customer and, on rare occasions, valid emails may also be blocked/ deleted by the filters. Managed ITC recommends customers use their own anti-virus and firewall systems to help provide further protection.
Web Hosting
Web Hosting is billed monthly or quarterly in advance unless otherwise arranged in writing with Managed ITC. If the account is not paid within the terms of the invoice, Managed ITC reserves the right to remove access and disable the web site. Continued non-payment of the account may result in complete termination of web hosting and deletion of all customer data.
The author of each web site is “the publisher”. Managed ITC does not moderate and takes no responsibility for the actions of the publishers. Managed ITC reserves the right to suspend or delete any site that is not compliant with the applicable laws of New Zealand and may do so at its sole discretion.
Unless agreed Managed ITC does not provide backup of customer websites and databases as part of its normal web hosting services and it is the responsibility of website owners to keep copies of all data stored on their sites in the event of data corruption or deletion whether by the customer or Managed ITC.
Ecommerce sites operated by customers are operated at the sole risk of the customer and Managed ITC does not warrant that services will be free from interruption. Data stored on websites and associated databases is fully at the risk of the customer.
VoIP Services
We will use all reasonable endeavours to make our services available to you at all times, however things beyond on control such as power outages or the performance of your internet connection may disrupt the service we provide.
You accept that our services are not required to support emergency calls.
You accept that Managed ITC VoIP might not be compatible with non-voice communications equipment such as home alarms, fax machines, Sky Digital and St John Alarms.
Any phone number that we allocate to you does not become your property and does not constitute any transfer of property rights.
If we need to change your number we will send you notification by email and give you as much notice as possible.
We can withdraw or terminate any number at any time without liability, particularly if you do not comply with the instructions for use.
Managed ITC retains ownership of all VOIP phone lines until the final bill is settled. Managed ITC will then transfer control of the number to you so you can port the number to another service provider.
Once control has been transferred, you may be able to port your Managed ITC number to another service provider. If you wish to do so you must contact the other service provider directly and you will be responsible for completing the porting requirements of that service provider. We will comply with our obligations under the Terms for Local and Mobile Number Portability in relation to the porting of your number. You will be responsible for all costs associated with porting the number.
If your account is inactive for more than 6 months or disconnected, and you have not ported the associated phone number(s), we may at our sole discretion reallocate the numbers associated with your account.
We exclude all of our liability to you in connection with us providing services to you or failing to provide services to you. Without limiting this, we are not liable to you (and nor are any of our officers, employees, contractors or agents liable to you):
i) if any communication is intercepted, not properly transmitted or received;
ii) for any disruptions or delays with the use of our services;
iii) for any incompatibility with other services;
iv) if any software we supply does not operate properly;
v) for any equipment or network failures.
We are not liable to you for any fault in, delay or non-provision of services which is caused by an event beyond our reasonable control.
We are not liable for cost of calls if you login/access details have been used by a 3rd party with or without your control. All call costs in the instance of a 3rd party accessing your login credentials are liable to you, the customer of Managed ITC.
We are not liable for cost of calls if you own SIP PABX or other SIP device has been hacked or compromised by a third party with or without your control. All call costs in the instance of a third party accessing your SIP PABX or other SIP device are liable to you, the customer of Managed ITC.
If you use another service provider during any period when our service is not fully operational, we are not liable to pay any amount you are charged by that service provider.
You acknowledge that no third party whose network or services we use to supply services to you (nor any officer, employee, contractor or agent of such third party) is in any way liable to you in connection with our services.
If you need access to the 111 service during a power cut, please review if you qualify as a vulnerable customer under the Commerce Commission 111 Contact Code here, and if it applies, please download our application form to fill out and send back to us.
Third Party Software
Managed ITC provides access for some customers and their web designers to the webservers for the installation, maintenance or update of software. Managed ITC makes no guarantees and takes no responsibility for the performance (or lack of) for this software. Managed ITC reserves the right to upgrade, remove or alter any software due to security or performance issues at any time. This could be without consultation with web customers although, where possible, we will attempt to notify known users of the scripts of any change. Usage and maintenance is at the customers own risk.
Goods and Services
The Goods and/or Services are as described on the invoices, quotation, estimate, or any other document as provided by Managed ITC to the Client.
All parts are subject to availability.
Managed ITC provides professional IT consultancy, advice and support. Our computer repair services include hardware and software sales, installation, repair and upgrade/replacement. We also provide Remote Assistance and Call Outs when required.
Delivery of Goods
Any charges for handling (including packing materials) and freight charges are extra, and payable by the Client. The most cost effective delivery method will be chosen where possible.
Delivery of the Goods shall be made to the Client’s address. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Client at Managed ITC’s address.
Delivery of the Goods to a carrier, either named by the Client or failing such naming to a carrier at the discretion of Managed ITC for the purpose of transmission to the Client, is deemed to be a delivery of the Goods to the Client.
The costs of carriage and any insurance which the Client reasonably directs The Managed ITC to incur shall be reimbursed by the Client (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Client’s agent.
Where there is no agreement that Managed ITC shall send the Goods to the Client, delivery to a carrier at limited carrier’s risk at the expense of the Client is deemed to be delivery to the Client.
The Managed ITC may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions of these terms and conditions.
Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of these terms and conditions.
Data Loss, Viruses and Spyware
The Client assumes all risk of data loss from any and all causes or in any way related to or resulting from the repair or service of computer hardware, software or other equipment by Managed ITC.
The Client agrees to bear full responsibility for all data backup prior to any repair or service of their computer hardware, software or other equipment by Managed ITC. The Client hereby indemnifies Managed ITC from any claim or liability related to data loss for any reason whatsoever.
The Client assumes all risk of computer Viruses, Spyware & Adware and will not hold Managed ITC responsible. The Client is responsible for the costs of consulting time and materials required to remove any computer Viruses, Spyware or Adware.