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Terms of Use

Terms of service

The following are the terms on which Xacta Technical Services Limited, (‘Xacta’), provides the information contained in this document and any information provided in connection with it (the ‘Proposal’) to (the ‘Customer).

All prices exclude GST unless specifically stated otherwise.

Capex Cash Investment – 50% deposit on order placement with balance due within 7 days after practical completion of system’s installation.

New equipment carries a 12-month onsite warranty covering labour and the replacement of any components found to be faulty due to manufacturing faults.

Installation prices are based on the use of existing trunk and extension cabling and jack points, unless specifically stated otherwise.   Additional cabling and labour will be quoted separately once a site audit is completed.

Prices exclude Service Provider (e.g. Chorus) charges (such as demarcation, installation, building cabling purchase, contract settlement, etc.) unless specifically stated otherwise.

Installation of SIP trunks depends on unknown variables such as the type of Internet Router, the porting of phone numbers, and other third party activities which may incur additional installation charges not included in this proposal.

Xacta Technical Services Ltd retains ownership and title of all equipment and materials supplied under this proposal.

This Agreement comprises these key terms;

Xacta’s standard terms and conditions for a quotation and the General Terms contained at xacta.co.nz.
This Agreement is a ‘quotation’ for the purposes of the General Terms.   All terms used but not defined in your quotation have the same meaning as in the General Terms.
If there is any conflict in meaning or interpretation between the terms and conditions in this Agreement and the Xacta terms on xacta.co.nz. the terms and conditions in this Agreement shall prevail.
If this solution has a SLA (Service Level Agreement) component, contract documents will be signed with Xacta’s SLA terms specific to the solution in this document.
Some hardware will be supplied as part of the solution.   Should the customer wish to end this service, a termination fee will apply.   Quotation at time of termination.
There will be PPSR registration over the equipment supplied.
This Agreement comprises these key terms;

1. WARRANTY AND LIABILITY

A. Service Provider warrants that its undertakings here under shall be performed in a professional and workmanlike manner and that it will provide Support Services in accordance with this Agreement.

NO OTHER WARRANTIES ARE EXPRESSED OR IMPLIED, INCLUDING BUT NETHER LIMITED BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

B. Client warrants that it has the unrestricted right to place the Equipment at Service Providers Location(s) listed in the Location and Equipment Summary for the term of this agreement.

C. Except as otherwise set forth herein, neither Party shall be deemed negligent, at fault or liable in any respect to the other for any delay, interruption or failure in performance here under resulting from fire, flood, water, the elements, explosions, acts of God, war, accidents, labor disputes, strikes, shortages of equipment or suppliers, unavailability of transportation or other cause beyond the reasonable control of the Party delayed or prevented from performing.

D. Except to the extent the same is caused solely by the gross negligence or willful misconduct of the Service Provider, its authorized agents or employees, Client shall indemnify and hold harmless Service Provider, its agents, contractors and employees from and against any and all claims, liability, damage, loss, or expense (including attorney’s fees) including injury or death to persons, or damages to property, both real and personal, which may arise out of: (a) the presence of clients unit(s) of Equipment, employees, contractors or agents on Service Providers premises; (b) the installation, operation, maintenance or removal of the clients units(s) of Equipment from service Providers premises; (c) any inherent defects in the clients unit(s) of Equipment.

E. Client shall indemnify and hold harmless Service Provider, its agents, contactors and employees from and against any and all claims, liability, damage, loss, or expense (including attorney’s fees) including injury or death to persons, or damages to property, both real and personal, which may arise out of the negligent or intentional acts or omissions of client, its agents, employees or contractors.

F. Service Provider shall not be liable for any damages to the Equipment for any reason, except to the extent the same is caused solely by the gross negligence or willful misconduct of service Provider, its authorized agents or employees; provided, however, that in the event the Equipment while in the possession and control of Service Provider is either lost or so damaged as the result of Service Providers gross negligence or willful misconduct, the maximum liability of Service Provider for said Equipment shall not exceed the replacement value of the equipment in a dismantled state, if repairs are impracticable, or in the event said Equipment is repairable, the costs to repair damage hereto.

G. In no event shall either Party be liable to the other for any indirect, incidental, special or consequential damages, including loss of revenue and profits, even if aware of the possibility thereof.

H. Notwithstanding anything to the contrary in the Agreement, Service Providers liability to client for any reason and upon any cause of action or claim in contact or tort, including without limitation breach of the Agreement or any warranty hereunder, regardless of form of action, shall not exceed the lesser of direct damages proved or [number] months Location Management Fee.

2. ACCESS, TITLE AND INSURANCE

A. Client, its agents, employees and contractors who, in Service Providers discretion, do not pose a security risk to Service Provider personnel or property, shall be permitted access to Service Provider Location(s) listed in the Location and Equipment Summary, to be accompanied at all times by an Service Provider escort, during normal business hours for the purpose of installing, operating, maintaining, repairing or removing the unit(s) or Equipment, after giving a reasonable advance notice to Service Provider, provided, however, that Client agrees to comply with Service Providers security regulations and other local site operation policies and procedures while om the Service provider Network Location for these express purposes. A reasonable advance notice as referenced above shall be provided as follows: (a) a minimum of no less than 5 calendar days’ notice for the purpose of installing, preparing or removing the Equipment; (b) a minimum of 3 hours advance notice for routine preventive maintenance on the Equipment; (c) as soon as possible for the reporting of a network malfunction causing loss of service or a degraded operation condition in the Equipment.

B. The Parties agree that Client is making the Equipment available hereunder as a bailment and that title to the Equipment will remain with client or Clients lessor and that Service Provider shall have no right, title or interest therein, except as expressly provided in this Agreement. Service Provider will not impose liens, security interests or encumbrances on the Equipment.

C. The Parties agree not to move the Equipment to any other location prior to the expiration of this Agreement without the other Party’s prior written consent nor to make alteration in or affix attachments to the Equipment, except that Client may make those alterations or affix attachment to the Equipment as necessary for clients networking requirements, provided client gives Service Provider advance notice of no less than 5 days before making such changes to the Equipment, and that Service Provider may relocate the Equipment to another Service Provider Location for its convenience due to Service Providers networking requirements.

D. In the event of such Equipment relocation for service Providers convenience, Service Provider agrees to pay all costs associated with the removal, moving, installation and demarcation of such equipment, other than any direct or indirect costs, of any kind or nature, incurred by Client for its vendors or technicians (whether employees or independent contractors), including without limitation, travel and lodging expenses (if any) and salary or other payments for services rendered. Client understands that during such an Equipment relocation client will experience a communications service outage while the Equipment is being relocated.

3. INDEPENDENT CONTACTOR RELATIONSHIP

It is acknowledged and agreed that Service Providers relation with the Client is at all times hereunder an independent contractor. The Client shall have no authority over Service Providers internal business affairs and decisions. Service Provider shall have no authority to act on behalf of, or legally bind the Client, and Service Provider shall not hold itself out as having such authority. This Agreement shall not be construed as creating a partnership or joint venture.

4. GENERAL

A. This Agreement sets forth the entire understanding between the Parties with regard to the subject matter hereof and supersedes any prior discussions or representations between them with respect thereto. All amendments to this Agreement shall be in writing and signed by both parties.

B. Neither Party may use the name, trademark, service mark or Logo of the other Party in any advertising, news releases or in any other manner without the written consent of such Party.

C. Client may not assign this Agreement or any of its rights hereunder without written consent by Service Provider, which shall not be unreasonably withheld.

D. All Equipment provided for Service Provider by Client hereunder for use in connection with Service Providers communications services shall be deemed to be ”Client-Provided terminal Equipment” within the meaning of Service Providers Tariff.

E. The relevant rights and obligations of the parties shall survive the termination of this Agreement.

F. All notices, requests, demands or communications required or permitted hereunder shall be in writing, delivered personally or by telex, telegram, Service Provider Mail, or certified, registered, or express mail at the respective addresses set forth below (or at such other addresses as shall be given in writing by either party to the other). All notices, requests, demands or communications shall be deemed effective upon personal delivery or on the calendar day following the date of the telex, telegram, or Service Provider mail, or when received if sent by registered certified or express mail.

5. GOVERNING LAW

This Agreement, and any dispute arising from the relationship between the parties to this Agreement, shall be governed by the law New Zealand excluding any laws that direct the application of another jurisdictions laws.