1. THESE TERMS
1.1 These terms and conditions set out the basis on which Capstone Consulting Ltd trading as CapstoneUX provides products and services to their customers. For the rest of this document CapstoneUX means Capstone Consulting Ltd.
1.2 Additional terms may apply to the customer’s use of some of CapstoneUX’s services. If so, CapstoneUX will tell the customer what those terms are – these additional terms will generally be incorporated into the Final Proposal. If there is any conflict between these terms and any additional terms, the additional terms will prevail.
2. DEFINITIONS AND INTERPRETATION
2.1 “agreement” means the Final Proposal and these terms and conditions. “customer” means the CapstoneUX customer who is liable for the costs under this agreement. “CapstoneUX” means Capstone Consulting Limited. Registered office: Level 1, 100 Moorhouse Avenue, Christchurch, 8011 Trading office: 40 Ramahana Road, Huntsbury, Christchurch, 8022
“Services” means any or all of the services that CapstoneUX have agreed to provide the customer as set out in a final proposal or communicated and agreed by another method. “Equipment” means any equipment supplied by CapstoneUX or a third party to the customer for the provision of Services from time to time. “Final Proposal” means the document signed by the customer that sets out the services to be provided by CapstoneUX, the length of the contract and the cost of the services. “Website” means www.capstoneux.com
3. COMMENCEMENT OF AGREEMENT
3.1 This agreement commences from the date the services are commenced and continues until it is terminated in writing.
4. CAPSTONEUX’S SERVICES CapstoneUX (Capstone Consulting Ltd) Standard Terms and conditions July2020 – Page | 2
4.1 If required and at the discretion of CapstoneUX, CapstoneUX may sub-contract other carriers to provide part of any Service.
4.2 CapstoneUX will use all reasonable endeavours to make the Services available to the customer at all times. However, due to the nature of software, computers, internet services and telecommunications absolute reliance cannot be placed on software, networks and services owned by other people, CapstoneUX cannot guarantee that the Services will always be available or fully functioning. If the Services are unavailable for any reason CapstoneUX will endeavour to restore the Services as soon as can reasonably be achieved.
4.3 While CapstoneUX takes all reasonable security precautions, due to the nature of telecommunications services CapstoneUX cannot guarantee the confidentiality of transmissions or data.
4.4 CapstoneUX may suspend or restrict any of the Services in accordance with 5.3 (c ).
5.1 For reoccurring services such as Domain and Email Hosting, Security Services, Back Up Services CapstoneUX will invoice the customer monthly in advance for the Services. The customer will be invoiced on the 15th of the month for services to be provided the month following; with the invoice to be paid within 14 days.
5.2 Website maintenance and CMS upgrades will be billed at the end of the month on which they are undertaken; with the invoice to be paid within 14 days.
5.2 Support desk enquiries and other agreed pieces of work; will be billed on completion of the work; with the invoice to be paid within 14 days.
5.3 All payments are to be by direct Bank Transfer, unless otherwise agreed. For any payments that are agreed to be paid by credit card (VISA or Mastercard) there will be a 1.5% surcharge added to the transaction amount. We do not surcharge debit cards.
5.3 If the customer does not pay any invoice on the due date, CapstoneUX may:
(a) charge the customer interest on the overdue amount from the due date until the date the customer pays, at the rate of 4% per month; and/or
(b) withhold any rebate, discount or similar incentive which would otherwise be available to the customer; and/or
(c) If payment is not received within 28 days of invoice date CapstoneUX may restrict or suspend or restrict the customer’s service CapstoneUX (Capstone Consulting Ltd) Standard Terms and conditions July2020 – Page | 3
5.4 Usage-based charges (such as number of emails sent) are payable in arrears.
5.5 If at any time, or in respect of any period, the customer uses more than the allocated Services that they have contracted to purchase/use for that time or period, the customer will be charged and must pay for any excess Services used.
5.6 CapstoneUX may vary the charges from time to time. If any charge increases, CapstoneUX will give the customer reasonable notice of the increase.
5.7 If the customer believes the invoice contains a mistake, the customer must advise CapstoneUX in writing within 14 days of the date of the invoice. The customer may only withhold payment of the disputed part of the invoice. If CapstoneUX agrees there has been a mistake on the invoice, CapstoneUX will apply the appropriate correction to the customer’s account, which will be displayed on the customers next monthly CapstoneUX invoice. If CapstoneUX finds that no mistake has been made, the customer must immediately pay the invoice without set-off or deduction and if payment is made past the due date the customer must also pay penalty fees for late payment be. CapstoneUX is not required to correct mistakes if notified after 21 days of the date of
5.8 CapstoneUX may at its discretion impose a credit limit on the customer’s account.
5.9 If the customer breaches any term of this agreement, and CapstoneUX incurs costs as a result, the customer will be liable for those costs and must reimburse CapstoneUX on demand.
5.10 All pricing shown in quotations and on the Final Proposal are exclusive of GST.
5.11 All charges are shown in New Zealand Dollars (NZD) unless otherwise stated.
6. USING CAPSTONEUX’S SERVICES
6.1 The customer agrees that they will not use the Services or permit the Services to be used in any way which:
(a) breaks any laws or infringes anyone’s legal rights;
(c) is malicious, obscene or offensive; or
(d) could introduce anything (including any virus) that may harm CapstoneUX’s or any third party software or equipment.
6.2 The customer agrees that it will: CapstoneUX (Capstone Consulting Ltd) Standard Terms and conditions July2020 – Page | 4
(a) comply with any reasonable restrictions imposed or instructions or directions given by CapstoneUX regarding the use of the Services;
(b) ensure that all information the customer gives CapstoneUX is correct. Where any information the customer has previously supplied to CapstoneUX changes (such as contact details) the customer must provide CapstoneUX with updated information as soon as possible;
(d) indemnify CapstoneUX against any legal action taken against it in connection with the customer’s use of the Services;
(e) not use the Services to spam, mail bomb, upload or publish any offensive or unlawful material, harvest information about others, create a false identity, transmit or upload material which breaches any third party right (including any intellectual property right), discriminates against any person or group, is false, inaccurate, misleading or deceptive or similar activity;
(f) keep confidential any password or PIN number which is used by the customer to access the Services. CapstoneUX recommends that the customer change these on a regular basis for security reasons. The customer must change their password or PIN number if asked to do so;
(g) authorise CapstoneUX to act on any verbal instructions the customer gives it in relation to the Services. The customer should notify CapstoneUX which of their staff are authorised to make changes to their account;
9. SERVICES CONTINUED
9.1 This clause applies to Domain, Website, Server hosting or Back up services provided by CapstoneUX that are dependent upon a 3rd party supplier.
9.2 If the customer downgrades or cancels any plan, then the customer may be liable to pay administration and/or early termination charges as described in clause 10.2 below. If the customer upgrades their plan there will be no administration charge and the new plan will take effect from the 1st of the following month.
9.3 CapstoneUX may without notice to the customer remove any emails that remain on their servers for more than 90 days. The customer is responsible for downloading from CapstoneUX’s email server to the customer’s computer any email that they wish to keep. CapstoneUX (Capstone Consulting Ltd) Standard Terms and conditions July2020 – Page | 5
9.4 The customer must not knowingly transmit any virus or other disabling feature or use the Services in a manner which is likely to or is intended to damage or compromise the network.
9.8 CapstoneUX is not liable for any inaccurate, illegal or offensive information which may be obtained from the internet from the customer’s use of the Services.
9.9 CapstoneUX is not liable for any viruses or other harmful code that the customer may download via the internet using the Services.
9.10 The customer will be responsible for protecting the customer’s computer against any virus, unauthorised access or spam and to the extent permitted by law, CapstoneUX accepts no liability in relation to any virus, unauthorised access or spam experienced by the customer.
9.11 The customer will indemnify CapstoneUX against all liability, losses and costs that CapstoneUX incurs:
(a) through the customer’s failure to do any of the above;
(b) through the customer’s failure to perform any other obligation that it may have under this agreement; or
(c) as a result of any claim made against CapstoneUX by a third party as a result of the customer’s use of Services.
(d) through the customer’s failure to perform any other obligation that it may have under this agreement.
9.12 Support Desk Services – Technical Support Ticket System
(a) CapstoneUX offers a 5 day per week 9am – 5pm, technical; support ticketing system to provide customers with timely technical support (over and above routine maintenance and upgrades) to any of the services provided. This service is charged at NZ$195 per hour the CapstoneUX technical team spend addressing and rectifying the
matter. Regular updates will be provided to the customer.
(b) While every effort will be made to rectify the matter quickly an exact time frame to solve support desk enquiries cannot be provided.
(c) as a result of any claim made against CapstoneUX by a third party as a result of the customer’s use of Services. CapstoneUX (Capstone Consulting Ltd) Standard Terms and conditions July2020 – Page | 6
10. TERMINATION AND SUSPENSION
10.1 The customer may give up any Service or terminate this agreement at any time by giving CapstoneUX not less than 30 days’ notice in writing and the customer must pay CapstoneUX (in each case within 30 days of the termination of the relevant Service):
10.2 CapstoneUX may, without liability to the customer, terminate the provision of any Service and shall endeavour to provide the customer with reasonable notice in writing if:
(a) CapstoneUX determines that the relevant Service is not commercially viable; or
(b) a third party service provider or carrier does anything that prevents CapstoneUX from supplying that service; or
(c) CapstoneUX is unable to provide the relevant Service; or
(d) CapstoneUX decides to withdraw the relevant Service from general availability.
10.3 CapstoneUX may terminate this agreement, or the provision of any Service to the customer, immediately if:
(a) the customer breaches any term of this agreement; or
(b) CapstoneUX reasonably believes that the customer has supplied incorrect or misleading information; or
(c) the customer (or the directors or principals) goes into liquidation, bankruptcy or receivership (or it appears that any of these events are likely to happen); or
(d) the customer has a receiver or statutory manager appointed over any or all of their assets; or the customer is removed from the Companies Register (other than as a result of a solvent amalgamation), dissolved; or
(e) the customer dies.
10.4 If this agreement is terminated for any reason the customer must pay for the Services provided up to the date of termination. If the customer has prepaid for the Service, no refund is payable to the customer on termination unless CapstoneUX agree otherwise.
10.5 CapstoneUX may suspend provision of Services to the customer without liability if: CapstoneUX (Capstone Consulting Ltd) Standard Terms and conditions July2020 – Page | 7
(a) CapstoneUX reasonably believes that the Services are being used (or have been or will be used) by the customer in violation of this Agreement;
(b) a payment for the Services is overdue by more than thirty (28) days;
(c) the continued use of the Services by the customer may adversely impact the Services or the systems or content of CapstoneUX or any other CapstoneUX customer;
(d) CapstoneUX reasonably believes that the use of the Services by customer may expose CapstoneUX, its affiliates, or any third party to liability; or
(e) suspension is required by law.
11. CONSUMER GUARANTEES ACT AND LIMITATION OF LIABILITY
11.1 The customer agrees that, if they are using the Services for the purposes of a business, the Consumer Guarantees Act 1993 statutory guarantees do not apply to their connection or the Services to the maximum extent permitted by the legislation. The customer agrees (whether the customer is using the services for the purposes of a business or otherwise) that CapstoneUX excludes and do not have any liability of any kind (whether in contract tort or otherwise) to the customer or anyone claiming through the customer, relating to any economic loss, loss of profits or revenue, loss of data, lost business or missed opportunities, wasted expenditure or savings the customer might have had or any form of indirect or consequential loss or damage whatsoever arising
(a) the failure, interruption or delay in the supply of, any Services or any part of them or any negligence in this regards;
(b) the fitness of all or any of the Services or Equipment for any particular purpose;
(e) errors in or omissions from any directory or code listing;
(f) the inaccurate or incomplete transmission of any information;
(g) any other matter which relates to this agreement.
11.2 CapstoneUX’s liability to the customer under Services provided by this agreement or agreed upon by other written or verbal communication, for any loss or damages which the customer incurs as a direct result of CapstoneUX’s failure to meet any of it’s obligations under this agreement or for any negligence by CapstoneUX in relation to the supply of the Services, will be limited to the average value of 2 months services provided by CapstoneUX to the customer for all events occurring in any 12 month period. CapstoneUX (Capstone Consulting Ltd) Standard Terms and conditions July2020 – Page | 8
11.3 If the customer uses another service provider’s services during any period when the Services are not fully operational, CapstoneUX is not liable to pay or reimburse the customer for any amount the customer may be charged by that service provider.
11.4 No third party supplier (including their officers, employees, contractors and agents) will be liable to the customer for loss or damage of any kind arising from the customer’s use of the Services.
11.5 Apart from the warranties expressly given to the customer in this agreement, all other warranties, express or implied, are excluded to the extent permitted by law.
12.1 The customer may at times supply CapstoneUX with personal information, for example, when the customer applies to become a customer of CapstoneUX. CapstoneUX may also obtain personal information from the customer’s use of the Services.
12.2 The customer agrees that CapstoneUX may:
(a) use the customer’s personal information and, where CapstoneUX deems appropriate, disclose it to third parties if this is required for it to provide the customer with the Services; for credit checking and collection; and/or to communicate with the customer about CapstoneUX’s current and future services;
(b) share information about the customer and their use of Services with other third party suppliers to provide the Services and to comply with interception, capability, security, fraud investigation co-operation or emergency response requirements; and
(c) CapstoneUX’s third party suppliers may use information about the customer and their use of the Services for the purposes described in (b) above.
12.3 The customer is entitled to see any information CapstoneUX holds about them and to request that any incorrect information be corrected.
12.4 CapstoneUX may record or monitor calls between it and the customer to verify information and for staff training purposes.
13. CHANGING THESE TERMS/VARIATIONS TO CUSTOMERS CONTRACT
13.1 CapstoneUX may vary these terms from time to time and will endeavour to give the customer 21 days’ notice. CapstoneUX will inform the customer of any variation to the terms and conditions either by email, post, notification in major daily newspapers or via CapstoneUX’s website. CapstoneUX (Capstone Consulting Ltd) Standard Terms and conditions July2020 – Page | 9
13.2 CapstoneUX may notify the customer of any variation or update to their contract by email. Upon CapstoneUX receiving acceptance of the variation to the contract from the customer, the customer’s contract shall be updated.
14. SERVICES PROVIDED BY THIRD PARTIES OVER THE NETWORK
14.1 CapstoneUX takes no responsibility for the accuracy, completeness or currency of any content or material or services that the customer may access or have provided to the customer by a third party through the Services or for any charges that the customer may incur by their use of such content, materials or services.
14.2 CapstoneUX are not responsible for:
(a) ensuring that the information the customer accesses or makes available through using the Services will be private or secure or free from viruses or other harmful things;
(b) any transactions the customer enters into through use of the Services or any dealings between the customer and any advertisers or other third parties using the Services or the customer’s participation in any promotions;
15.1 If the customer wishes to notify CapstoneUX of anything the customer can do so by emailing firstname.lastname@example.org or by calling 03 925 0789. CapstoneUX may require the customer to confirm in writing any advice given over the phone.
15.2 If CapstoneUX wishes to communicate with the customer or notify them of anything it may do so by post, phone, facsimile or email to the last known address or number held for the customer.
16. PERSONAL PROPERTIES SECURITY ACT 1999 (PPSA)
16.1 The customer may require CapstoneUX to provide certain equipment to them to enable the customer to use the Services.
16.2 If CapstoneUX provides any equipment to the customer, the customer agrees that:
(a) they will not sell, lease, dispose of, or allow any other person to take a security interest in the equipment; and
(b) CapstoneUX can register a financing statement on the Personal Property Securities Register (PPSR) to reflect their interest in the equipment. CapstoneUX (Capstone Consulting Ltd) Standard Terms and conditions July2020 – Page | 10
16.3 Where CapstoneUX exercises its right to register a financing statement, the customer also agrees to:
(a) provide such information as CapstoneUX reasonably requests to enable it to register a financing statement on the PPSR; and
(b) inform CapstoneUX immediately in writing if the customer intends to change their name, address or contact details.
16.4 The customer waives its rights under sections 114(1)(a), 116, 117, 119, 120(2),
121, 125, 126, 127, 129, 131, 132, 133, 134 and 148 of the Personal Property Securities Act.
17. FORCE MAJEURE
17.1 CapstoneUX will not be liable for any delay or failure of the Services or for any loss or damage from such delay or failure to the extent that it was caused, in whole or part, by an act of God, war, terrorism, civil disobedience, riots, strike, industrial stoppage or unrest, fire, volcanic eruption, earthquake, shortage of suitable labour, global
pandemic, materials, equipment or energy or any other event.