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Lume Network Services terms of trade

Lume Network Services Ltd Terms of Trade 2016

1.     Introduction

1.1    These terms, together with our Fair Use Policy and Privacy Policy, apply to the consulting and implementation services, the equipment and the Network Services that we (Lume Limited) supply to you as detailed in the attached Statement of Work and, unless we have expressly agreed otherwise in writing, to any other equipment and services we may provide to you in the future (collectively, “Services”).

2.     Definitions

2.1    In these Terms the following words have the meaning given below unless the context requires otherwise:

       “Agreement” means these terms, our Acceptable Use Policy, each relevant Statement of Work any applicable service descriptions and Service Level Commitments;

       “Business Day” means Monday to Friday excluding national public holidays and Auckland Anniversary Day;

       “Business Hours” unless otherwise specified in a Statement of Work, means between the hours of 8:30am and 5:30pm on a Business Day.

        “Charges” means the fees and charges payable by you for the Services, plus GST.

       “End User” means any or your Personnel or other identifiable individual who uses the Services we provide to you (and ‘End Users’ shall be construed accordingly).

       “Equipment” means any software and equipment we supply to you as part of the Services.

       “Fair Use Policy” means our fair use policy which can be found on our website at www.lume.co.nz/fair_use_policy.

       “Upstream Provider” means any telecommunication or IT service provider we use to help us provide the Services to you.

       “Personnel” means your employees, officers, contractors and agents (other than us) and in our case, our employees, officers, contractors and agents.

       “Service Commencement Date” means the date provided in a Statement of Work for the commencement of a Service or, where that date is not known at the time of execution of a Statement of Work, the date on which the Service becomes available as notified by us to you.            

       “Service Level Commitments” means the specific commitments that we make to you regarding service levels for one or more of our Services as detailed in the relevant Statement of Work or as otherwise agreed in writing by us.

       “Statement of Work” means a schedule executed by both you and us that contains the terms and conditions relating to the provision of one or more Services.

       “Network Services” means all or any part of the telecommunications and related services we provide to you under a Statement of Work and includes any Equipment we provide as part of those services.

       “Project Services” means all or any part of the implementation and consulting services we provide to you under a Statement of Work and includes any Equipment we provide as part of those services.

      “Services” means all or any part of the Network Services and Project Services we provide to you under a Statement of Work and includes any Equipment we provide as part of those services.

       “We” and “Us” means Lume Network Services Limited and “our” has a corresponding meaning.

       “You” means you the customer and “your” has a corresponding meaning.

3.     Commencement and Term

3.1    This Agreement commences on the date of execution of the first Statement of Work and will continue until terminated in accordance with clause 18.

3.2    If you order Services:

3.2.1    with no fixed term, this Agreement will continue on a month by month basis in respect of those Services until terminated in accordance with clause 18 or otherwise in accordance with this Agreement;

3.2.2    for a fixed term and you end those Services before the end of the fixed term you may have to pay early termination charges.  Details of early termination charges will be set out in the relevant Statement of Work; and

3.2.3    for a fixed term, on expiry of the fixed term, those Services will continue on the same terms and conditions as the fixed term Services but on a month by month basis until terminated by you or by us in accordance with clause 18 or otherwise in accordance with this Agreement.       

4.     Delivery of Services

4.1    We will use our reasonable endeavours to deliver the Services to you in accordance with the Statement of Work.

4.2    During the provision of the Services:

4.2.1    we will provide you with regular reports as detailed in the Statement of Work or as otherwise agreed by you and us;

4.2.2    whilst on any premises of yours, we will observe all policies, standards, procedures and reasonable directions given by you; and

4.2.3    we will be pro-active in our approach to service delivery and bring a co-operative approach to the Services and to the relationship with you.

4.3    Where we provide a Service to you that is subject to specific terms and conditions, those specific terms and conditions will form part of this Agreement.  If there is any inconsistency between these Terms and any specific terms and conditions applicable to you, the specific terms and conditions will take precedence.

4.4    The Services may be changed, suspended or removed by us and/or new Services introduced from time to time. If we do so, we will notify you and you may be entitled to end this Agreement in accordance with clause 6.3

4.5    Where you purchase Equipment from us:

4.5.1    ownership of the Equipment shall not pass upon delivery, but shall remain with us until full payment of all monies owing by you to us for that Equipment.  Until all such monies have been paid, you hold the Equipment supplied as a fiduciary for us and will deal with it as agent for and on our behalf (but will not hold yourself out as our agent to any third parties).

4.5.2    Pending payment for the Equipment, you shall be bailee of the Equipment, shall exercise reasonable care in preserving the Equipment against loss, damage, and destruction and shall keep the Equipment separate and readily identifiable while it is in your possession or control. 

4.5.3    You carry the full risk in the Equipment from the date that you take possession of the Equipment.

4.5.4    To secure payment for Equipment and any other monies owed by you to us, you grant us a purchase monies security interest in the Equipment and in any proceeds derived from any sale or other commercial exploitation of the Equipment.  Sections 114(1)(a), 133 and 134 of the Personal Property Securities Act 1999 (“PPSA”) shall not apply to the security granted under these Terms and you waive all rights under sections 121, 125, 129, 131, 132 and 148 of the PPSA.

4.6    In order to provide the Services to you it may be necessary for us to install and maintain our own Equipment on your premises. In such cases you acknowledge and agree that you will:

4.6.1    Provide a safe and secure operating environment for the Equipment, including providing a suitable supply of electricity;

4.6.2    Take reasonable precautions to protect the Equipment from radio or electrical interference and power fluctuations;

4.6.3    Not damage or interfere with the Equipment and you will pay or the repair or replacement of any Equipment that is lost or damage while located on any premises owned or controlled by you;

4.6.4    Provide us with safe access to inspect, test, service, modify, repair or replace the Equipment and notify us if any hazards at any premises where the Equipment is located; and

4.6.5    Not part with possession of the Equipment and not grant a charge, lien or encumbrance over any of the Agreement or otherwise create a security interest in the Equipment.

4.7    Unless otherwise agreed in writing, we retain ownership of any Equipment referred to in clause 4.6 and we (or our Personnel) may enter your premises to remove that Equipment or to recover that Equipment upon termination of this Agreement, or earlier if the Equipment is no longer required for the delivery of Services.

4.8    The supplier of Equipment may require you to comply with their terms and conditions, including any licence terms for software supplied as part of the Equipment (“Extra Terms”).  These Extra Terms are either freely available or we will provide them to you.  You agree to abide by the Extra Terms.

5.     Acceptance Testing

5.1    The Statement of Work may specify that a deliverable or milestone in respect of the Services is subject to acceptance testing.  In such cases, you will have the right to conduct acceptance testing in order to assess whether the milestone or deliverable has been successfully reached or delivered, in accordance with the procedure and by reference to the criteria for such acceptance testing as set out in the relevant Statement of Work or otherwise under such procedure and by such criteria as you and we shall reasonably determine.

6.     Changes

6.1    Project Services: Sometimes you may request changes to the Project Services or it may be necessary or desirable for us to provide Project Services outside the agreed service specification or term in the Statement of Work.  This can involve less or more cost to you.  If this occurs, we will both try and agree upon a written variation (including, if necessary, a price variation) to the Statement of Work.  If we cannot agree on a variation, the Project Services will continue in accordance with the Statement of Work.

6.2    Changes to Network Services: Subject to the remainder of this clause, we may change this Agreement and/or vary any Network Services (including the Charges for the Services) at any time (“Change”) by giving you no less than 20 Business Day notice of the Change.

6.3    Termination by you: If you are using Network Services that are subject to a fixed term (“Fixed Term Services”) and you can demonstrate to our reasonable satisfaction that a Change would have more than a minor detrimental impact on you such that the Change would:

6.3.1 materially and adversely impact the way in which you use those Fixed Term Network Services; or

6.3.2 materially and adversely increase the Charges you would incur from your usual use of those Fixed Term Network Services; and

6.3.3 the Change is not one that is specifically provided for in this Agreement or we are required to make by law,

         you may notify us that you wish to immediately terminate this Agreement. Notice of intended termination under this clause 6.3 must be given during the period commencing at the time we notify you of the Change and ending at the time the Change takes effect (“Notice Period”).

6.4    If you continue to use the Network Services after the Notice Period you are deemed to have accepted the Change.

6.5    Requests for termination under clause 6.3 will be considered on a case by case basis, but will not be unreasonably denied.

6.6    Where this Agreement is terminated under clause 6.3, You will remain liable for all Charges incurred up to the date of termination and clauses 18.5 and 18.6 shall apply.

6.7    If we are required to notify you of a Change under this clause 6, we may do so by email or letter.  

7.     Fees & Payment

7.1    The fees and expenses which we will charge for the Services or the manner in which they will be arrived at, is set out in the relevant Statement of Work. Unless otherwise provided in a Statement of Work:

7.1.1    you will pay the Charges for each Service from the applicable Service Commencement Date;

7.1.2    fixed charges are payable monthly in advance and charges calculated on a usage model are payable monthly in arrears; and

7.1.3    all Charges are in New Zealand dollars and are exclusive of GST and any other applicable taxes, duties and levies.  You will pay all such GST, taxes, duties and levies in addition to the charges at the time of paying the Charges.

7.2    If the Statement of Work specifies a fixed fee, we will charge this for the agreed specification of our Services.  Work which falls outside that specification will be subject to the change process outlined in Clause 6.1.  Where our fees are calculated on an hourly basis, the hourly rates are set out in the Statement of Work.

7.3    In providing the Services we may incur expenses or have to make payments to third parties on your behalf.  Where our estimate of these expenses is not included in the Statement of Work we will seek your written approval prior to incurring any such expense.  Expenses will be included in our invoice to you when the expense is incurred.  We may require an advance payment for the expenses which we will be incurring on your behalf.

7.4    You are responsible for all Charges for Services provided to you under this Agreement, no matter who uses those Services.

7.5    If you believe there is a mistake on your invoice, please let us know as soon as possible and no later than 14 days (for Project Services and Equipment) or 90 days (for Network Services) from the date of the relevant invoice (time being of the essence).  In any event, you must pay all amounts owing under this Agreement by the due date without set off or deduction of any kind.  If we, acting reasonably, agree there has been a mistake, we will apply any correction to your next invoice.  If we do not agree there is an error the dispute will be resolved in accordance with clause 20. 

7.6    If you do not pay our fees and expenses incurred on time, and you have not disputed any amount as provided in Clause 7.5, then without prejudice to any other rights or remedies we have, we may do any or all of the following:

7.6.1     suspend provision of the Services until the outstanding amount is paid;

7.6.2    refer your account to a debt collection agency for enforcement;

7.6.3    charge interest by way of liquidated damages on all amounts owed at the rate of 2% per month calculated on a daily basis from the due date for payment until the date payment is made; and

7.6.4    if we have provided Equipment to you, we may without the necessity of giving notice, enter on and into any property or premises owned or occupied by you or where the Equipment may reasonably be expected to be, to search for and remove all or any of the Equipment, dispose of the Equipment removed and credit the sale proceeds towards any amount owed. If all or any of the Equipment is wholly or partially attached to, intermingled with or incorporated in any other goods, we may in our sole discretion disconnect, retrieve or sever the Equipment in order to remove it and shall not be liable for any loss or damage caused. You hereby indemnify us for any claims for loss or damage against us as a result of the exercise by us of our rights pursuant to this clause.

8.     Warranties

8.1    We will provide the Services in a proper and professional manner and to a high standard consistent with practices accepted as industry standards relating to the Services.

8.2    We will use appropriate materials of good quality, employ appropriate techniques and standards, engage personnel of suitable training and experience and exercise due care, skill and attention in providing the Services.

8.3    Except as provided in Clauses 8.1 & 8.2, all conditions and warranties, express or implied, are excluded to the maximum allowed by law. 

8.4    Any Equipment provided as part of the Services is provided “AS IS” and without any warranties other than those (if any) from the third party supplier.  We will use reasonable endeavours to ensure that you have the benefit of the third party supplier’s warranties. You agree however, that we will have no liability to you (however arising) in respect of your purchase or use of such Equipment.

8.5    To the extent that the Services are purchased by you for the purpose of a business you agree that the provisions of the Consumer Guarantees Act 1993 do not apply.

9.     Our Responsibilities

9.1    We will provide the Services to you:

9.1.1    in accordance with the terms and conditions of this Agreement and any Service Level Commitments; and

9.1.2    otherwise in a professional manner and in accordance with the standards, skill and care which would reasonably be expected of a telecommunications service provider in New Zealand in similar circumstances.

9.2    We do not guarantee that the Services will be continuous or fault free but we will use our reasonable endeavours to minimise the duration of any faults or interruptions to the Services to the extent that is within our control.

 

9.3    We will use reasonable endeavours to perform or deliver the Services in accordance with any timelines agreed with you but unless we have expressly agreed otherwise in writing, stipulations as to time are not of the essence.

9.4    Whilst on any premises of yours, we will observe all policies, standards, procedures and reasonable directions given by you or your Personnel.

10.   Your Responsibilities

10.1It is your responsibility to:

10.1.1provide or arrange the provision of agreed resources, facilities and documentation as specified in the Statement of Work or otherwise as agreed in writing;

10.1.2pay our fees and charges for the Services as set out in these terms and the Statement of Work;

10.1.3provide information and make timely decisions as required for the Services and provide any other information of which you are aware, which is relevant to us in performing the Services;

10.1.4ensure that all information you provide to us in relation to you and your use or proposed use of the Services is true and correct

10.1.5perform your obligations under each Statement of Work, and other obligations agreed as your responsibility;

10.1.6provide access to relevant employees, agents and other contractors of yours to enable us to provide the Services and perform our obligations, and use reasonable endeavours to ensure that such employees, agents and contractors co-operate with us; and

10.1.7bring a good faith and co-operative approach to the Services and to the relationship with us.

10.1.8Ensure that all of your equipment that is connected to the Services and/or any network operated by an Upstream Provider is installed in accordance with our specifications and you will follow our reasonable instructions about modifications that you may be required to make to your own equipment so as to use the Services; and

10.1.9be responsible for the use of the Services by the End Users, including the content of any data or information they send or receive using the Services.

10.2You will not, and will use all reasonable endeavours to ensure that the End Users will not, cause or allow any of the Services to be used in a manner which:

10.2.1is in breach of any law;

10.2.2is other than in accordance with our reasonable instructions, restrictions or directions about the use of the Services, including as set out in our Fair Use Policy;

10.2.3could or is intended to interfere with or damage our network, any Upstream Provider’s network or another customer’s enjoyment of any service provided by us or our Upstream Providers;

10.2.4 may result in a “virus”, “worm”, “trojan” or similar program being sent through the Services;

10.2.5infringes any person’s Intellectual Property or other rights;

10.2.6is malicious, obscene or offensive; or

10.2.7is other than the purpose for which the Services are provided.

11.     Credit

11.1You authorise us to check your credit status with any credit reference agency or agencies as we see fit from time to time during the term of this Agreement, and to pass on information about you to any credit reference agency for that purpose. We do not accept responsibility for the accuracy of information we receive about you from any credit reference agency. You must contact that agency directly if you are dissatisfied with any information supplied to us.

11.2We may decline to provide Services you do not meet our credit criteria, including if you do not give us the names of any credit referees when we ask them. The way we establish our credit criteria is at our discretion, and we are not required to disclose our credit criteria or the reasons for any decision we make in respect of your credit status.

11.3We can at our discretion impose credit limits for your use of the Services where you no longer meet our credit criteria or have failed to pay any required Charges on time. We will try to notify you as soon as possible if we impose any such limits. We may restrict your use of the Services without prior notice if you exceed any credit limit. You remain liable however, for all Charges incurred in excess of your credit limit.

12.   Intellectual Property

12.1Our Intellectual Property:  All intellectual property that we own or that is licensed to us by a third party, together with all modifications or developments to, or based on it, made by us in connection with the Services (collectively, “Our Intellectual Property”) will be and remain our property.  Except as provided in Clause 12.3, you will obtain no rights or interests in Our Intellectual Property.

12.2Your Intellectual Property:  All intellectual property that you own or that is licensed to you by a third party, together with all modifications or developments to, or based on it, made by us in connection with the Services (collectively, “Your Intellectual Property”) will be and remain your property.  Except as provided in Clause 12.4, we will obtain no rights or interests in Your Intellectual Property.

12.3Licence to You:  Provided you meet your payment obligations for the Services, we grant to you an irrevocable, perpetual, royalty-free, non-exclusive, and non-transferable licence to Our Intellectual Property, subject to any limitations or restrictions on that right required by third parties, to enable you to access, possess and use Our Intellectual Property solely for the purposes of using the Services in your business.

12.4Use of Ideas:  Subject to any restrictions on the use of confidential information under Clause 17, we will be entitled to use the ideas, concepts, tools, methodologies and know how gained by us as a result of performing the Services for other applications.

12.5You must not copy, modify or reverse assemble any software we provide or any part of our network management interfaces or infrastructure, without our express written permission.

12.6You indemnify and hold us and our Personnel harmless from and against any and all claims, costs, damage, loss, liability and expense (including legal costs) arising out of or in connection with any claim alleging that data you send using the Services infringes the intellectual property rights of any third party.

12.7We will not be responsible to you in any way for the deletion, loss or corruption of any of your data or content.

13.   Personal Property Securities Act 1999

13.1You acknowledge and agree that by assenting to these terms (by virtue of the retention of title clauses in these terms), you grant a security interest to us in all Equipment supplied by us to you.

13.2You agree that you will:

13.2.1     promptly sign any further documents or provide any further information (which information you warrant to be complete, accurate and up-to-date in all respects) which we may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register;

13.2.2     not register a financing change statement or a change demand in respect of Goods (as those terms are defined in the PPSA) without the Company’s prior written consent; and

13.2.3     give us not less than 14 days prior written notice of any proposed change in its name and/or other change in its details (including, but not limited to, changes in its address, facsimile number, trading name or business practice).

13.3Unless otherwise agreed to in writing by us, you waive your right to receive a verification statement in respect of any financing statement or financing change statement relating to the security interest.

13.4To the maximum extent permitted by law, you waive your rights, and with our agreement, contract out of your rights under the sections referred to in section 107(2)(c) to (i) of the PPSA.

13.5You agree that nothing in sections 114(1)(a), 133 and 134 of the PPSA shall apply to these terms and conditions and, with our agreement, contract out of such sections.

14.   Liability

14.1Where a Statement of Work provides for us to give you rebates in certain circumstances in relation to Service Level Commitments, we will do so.  We will pass on the benefit of any manufacturer’s warranties for Equipment purchased by you where we are able to do so.  To the maximum extent permitted by law, we otherwise exclude all liability to you in connection with the provision of the Services or for failing to provide Services to you.

14.2We have certain obligations to our Upstream Providers and:

14.2.1no Upstream Provider provides, confers or grants any benefit, right or privilege on you; and

14.2.2no Upstream Provider or any officer, employee, contractor or agent of an Upstream Provider shall have any liability to you or anyone else in connection with this Agreement, the Services or your use of the Services. 

This clause is intended to confer a benefit which those third parties can enforce.

14.3If we breach any warranty implied by law which cannot be lawfully excluded then to the extent permitted by law, our liability is limited, at our option, to:

14.3.1     In the case of the Services, the resupply of or payment of the cost of resupplying the relevant Services; and

14.3.2     In the case of Equipment, the replacement or repair of the Equipment or payment of the cost of having the Equipment repaired or replaced.

14.4Neither you nor us shall be liable for any consequential or indirect loss, loss of data, nor any loss of profits, revenue, business opportunity, goodwill and/or anticipated savings of any kind whatsoever, arising from the provision of the Services, whether suffered or incurred by us, by you or another person and whether in contract or tort (including negligence) or otherwise.

14.5If we are held or found to be liable to you under this Agreement or otherwise at law, to the greatest extent permitted by law, our liability to you or anyone claiming through you in respect of any event or series of events will be limited to the lesser of $5,000 or the total Charges paid by you for the Services in the six-month period immediately prior to the date of your claim.  For the purposes of this clause 14.5 “we” and “our” includes our Personnel, any Upstream Provider and any officer, employee, agent or contractor of any Upstream Provider.

14.6If you are acquiring the Services for the purposes of a business, or if you indicate to us you are doing so, it is agreed that:

14.6.1     each of you and us is ‘in trade’;

14.6.2     the Services are acquired for a business purpose; and

14.6.3     the statutory guarantees and implied terms, covenants and conditions of the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the Fair Trading Act 1986 are excluded to the fullest extent permitted at law and do not apply.

14.7Sometimes we will not be able to fulfil our responsibilities through no fault of our own.  We are not responsible for any failure or delay to perform our obligations due to events beyond our reasonable control or failure by you to perform any of your responsibilities under these terms or a Statement of Work.

15.    Indemnity

15.1You indemnify us and keep us indemnified against all loss, expense, damage and costs (including legal costs) suffered, incurred or awarded against us in relation to or arising out of any breach by you of this Agreement including any negligent act or omission and any fraud by you, your End Users or any third party who uses or purports to use the Services supplied to you.

15.2Your liability under the indemnity in clause 15.1 shall be reduced to the extent it was directly caused by our negligence or unlawful acts.

16.    Suspension of Services

16.1We may, without prior notice to you and without prejudice to any other rights we may have, immediately restrict or suspend the supply of a Service:

16.1.1In an emergency or wherever we, any Upstream Provider or any other appropriate person considers that it is necessary or reasonable to protect persons, systems or other property;

16.1.2if we have reasonable grounds to believe the Services are being used fraudulently or illegally;

16.1.3if we are obliged to comply with a regulatory order, instruction or request;

16.1.4if you have failed to pay any money owing under this Agreement by the due date and you have not paid that money to us within 5 Business Days of receiving notice from us requiring you to pay the due moneys, until you pay the moneys owing;

16.1.5if an Upstream Provider suspends or interrupts its services to us and that suspension or interruption affects our ability to provide the Services to you; or

16.1.6if you commit any material breach of this Agreement and fail to remedy any such breach within 5 Business Days of receiving from us written notice of the breach and requiring it to be remedied, until the breach is remedied. 

16.2You will, if required by us, pay to us the reasonable costs of restoring any Service that has been suspended by us pursuant to this clause 16.

16.3We shall not be liable for any loss, damage or inconvenience you incur as a result of the suspension. Where reasonably practicable, we shall give prior notice of such suspensions to you.

16.4The Charges will still apply during the period of any suspension.

17.   Confidential Information

17.1    Each party will keep all information about this Agreement and its subject matter and all other information (if any) of a confidential nature relating to the other party (“Confidential Information”) confidential and will not disclose this information to any third party except:

17.1.1to the extent necessary to perform this Agreement or to exercise any rights under this Agreement;

17.1.2to its professional advisors;

17.1.3as required by law or by any Court order; or

17.1.4as expressly permitted by this Agreement.

17.2Unless agreed otherwise in writing, each party will use any Confidential Information belonging to the other party only for the purposes of fulfilling its obligations under this Agreement and as permitted in these Terms.

17.3Confidential Information does not include information that is generally known and available without a party having breached its obligations under this clause 17; or is, or has been, independently and lawfully acquired or developed without the benefit or use of the other party’s Confidential Information.

17.4Neither party shall make any public statement or announcement concerning this Agreement or the business of the other party without the prior written approval of the other party.

17.5Each party shall ensure that its Personnel abide by the obligations of confidentiality in this clause 17 and shall be responsible for any breach of confidence by that party’s Personnel.

17.6You consent to us sharing information about you with our Upstream Providers to the extent necessary to enable them to provide their services to us.

18.   Termination

18.1Either of us may terminate a Statement of Work that has no fixed term or, if there is a fixed term where that fixed term has expired, by providing no less than 20 Business Days written notice to the other party.

18.2You may terminate a Statement of Work before the end of any applicable fixed term by providing no less than 20 Business Days written notice but in that case, unless you have terminated pursuant to clause 18.3 or 6.3, you must pay the early termination charges as set out in the Statement of Work.

18.3Either party may terminate a Statement of Work or this Agreement immediately by giving notice to the other party if the other party:

18.3.1commits a material breach of this Agreement that is not capable of being remedied;

18.3.2 commits a material breach of this Agreement which is not remedied within 20 Business Days of written notice of the breach having been given to that other party;

18.3.3enters into receivership or has a liquidator appointed or enters into a composition with its creditors (other than for the purposes of a solvent reconstruction); or

18.3.4breached a material term (including a payment term) of that Statement of Work or any other Statement of Work between you and us, or has breached these terms, and in each case, has failed to remedy such breach after written notice allowing at least 20 days to remedy the breach.

18.4We may terminate this Agreement or any Statement of Work with immediate effect if:

18.4.1an agreement with an Upstream Provider essential for the provision of the Services to you is terminated for any reason and we have been unable to procure a replacement provider on reasonably acceptable terms; or

18.4.2you do not pay the Charges or other amounts owing under this Agreement when due or if you breach any other material term of this Agreement and fail to remedy that breach within 5 Business Days of receiving notice from us requiring remedy.

18.5Upon termination:

18.5.1You will be disconnected and you authorise us to access your premises to remove the Equipment.  If we are unable to gain access, we may invoice you for and you agree to either pay the reasonable replacement cost of that Equipment or to promptly deliver the Equipment to us;

18.5.2we may charge for Services provided under that Statement of Work but not yet invoiced for, and be regarded as discharged from any further obligations under that Statement of Work; and

18.5.3you shall upon demand reimburse us and indemnify us for all costs, expenses and other sums (including on a solicitor/client basis) reasonably incurred by us in exercising any right or remedy available to us consequent upon any default by you.

18.6Termination of this Agreement or a Statement of Work shall not:

18.6.1relieve either you or us from any right, liability, or claim that has accrued before the date of termination or cancellation; or 

18.6.2affect any rights or responsibilities which are intended to continue after this Agreement ends including, without limitation the provisions of Clauses 7, 12, 15, 17, 18 and 19 of these terms will continue to bind you and us.

19.   Marketing & Privacy

19.1You agree that we may include a reference to you and the general nature of the Services in our marketing and promotional materials.

19.2You agree that we can collect information about you and the way in which you are using the Services (among other things) and use the information as set out in our Privacy Policy. Please ensure you have read and understood our Privacy Policy, which forms part of this Agreement and is published by us at www.lume.co.nz/privacy.

19.3You agree that we may send you marketing messages, electronic or otherwise, about (among other things) the Services, special offers and other promotions, and those of third parties which we consider may be of interest to you. You may unsubscribe from receiving marketing messages from us at any time by clicking on the ‘unsubscribe’ link in the electronic marketing message or otherwise by e-mailing ‘unsubscribe@lume.co.nz’.

20.   Disputes

20.1Excluded Matters:  These provisions shall not apply (unless we so require) to a dispute concerning our termination of or right to terminate a Statement of Work.

20.2Relevant Matters:  Subject to Clause 20.1, all disputes and questions which shall arise between you and us concerning a Statement of Work, the Services or these terms shall be dealt with pursuant to the dispute resolution procedures outlined in this Clause 20.

20.3In Writing:  Where a dispute arises between us and you (the “Parties”), the complainant will set out in writing the nature of the dispute (in this Clause 20, “Notice”).

20.4Negotiation:  Within 7 days of the Notice both Parties will make every effort to resolve the dispute by mutual negotiation by meeting around the table to directly discuss the issues.

20.5Notice:  In the event that the Parties are unable to reach a resolution of the dispute within 7 days of the Notice, either you or us may by notice in writing advise the other Party that it seeks to have the dispute resolved by mediation.

20.6Resolution Institute Rules:  The mediation must be conducted in terms of the Resolution Institute Standard Mediation Agreement or the mediator’s own mediation agreement.  The mediation must be conducted by a mediator and at a fee that is agreed upon.  Failing agreement within 5 Business Days, the mediator will be selected and his/her fee determined by the Chair for the time being of Resolution Institute (or his or her nominee) at the request of either party. 

20.7Costs: You and we will bear the mediation costs on an equal basis and grant immunity from liability to the mediator.

20.8Court Remedies Not Excluded:  Nothing in this Clause 20 shall prevent either you or us from obtaining injunctive or other interim relief in relation to Intellectual Property or Confidential Information.

21.   Electronic Communications

21.1Unless otherwise agreed with you, we may communicate with you and others at times by electronic means.  These communications can be subject to interference or interception or contain viruses or other defects.  We do not accept responsibility and will not be liable for any damage or loss (direct or indirect) caused in connection with the corruption or loss of an electronic communication. 

22.    Notices

22.1Any notice given pursuant to this Agreement will be deemed to be validly given if personally delivered, posted, or emailed to the address of the party to be notified set forth in the Service Schedule or to such other address as the party to be notified may designate by written notice given to the other party.

22.2Any notice given pursuant to this Agreement will be deemed to be validly given:

22.2.1in the case of delivery, when received;

22.2.2in the case of email, when received;

22.2.3in the case of posting, on the third Business Day following the date of posting;

provided that any notice personally delivered or sent by email either after 5pm on a Business Day or on any day that is not a Business Day will be deemed to have been received on the next Business Day.

23.     Service Outages

23.1From time to time, we or an Upstream Provider may perform maintenance or upgrade work that may affect the Services. Any disruption caused to the Services will not constitute a breach of our obligations under this Agreement.

23.2Where possible and within our direct control, we will exercise reasonable endeavours to:

23.2.1perform maintenance or upgrade work at such time to minimise any disruption to the Services; and

23.2.2provide you with at least 5 Business Days’ notice of such work by us or by the relevant Provider.

24.   Miscellaneous

24.1If at any time any provision of these terms is or becomes illegal or unenforceable neither the legal validity nor enforceability of the remaining provisions shall in any way be affected or impaired.

24.2We may:

24.2.1transfer to someone else all or any part of our obligations under this Agreement, and assign or transfer any of our rights under or in connection with this Agreement. Any assignee or transferee will have the same rights and powers as if they were named as us; and

24.2.2Unless specified in the Statement of Work, we may subcontract or delegate the performance of any of our rights or obligations under this Agreement to any related company, agent, service provider or other third party. In that case, each of those companies, agents, service providers or third parties and their officers, employees, contractors and agents will have the benefit of any terms of this Agreement that confer benefits on us.

24.3You may not assign any rights or obligations under this Agreement without our prior written consent.

24.4No delay or omission by either party to exercise any right or power under these terms or a Statement of Work will impair such right or power or be construed to be a waiver of it.  A waiver (which must be in writing) by any party of any covenant to be performed by the other party or any breach of such covenant will not be construed to be a waiver of any succeeding breach of that covenant or of any other covenant in these terms.

24.5If there is any inconsistency between the provisions of a Statement of Work and these terms, these terms will prevail to the extent of the inconsistency unless the Statement of Work specifies otherwise.

24.6These terms and each Statement of Work shall be governed by New Zealand law and you and we each agree to submit to the non-exclusive jurisdiction of the courts of New Zealand.