Spectrum Consulting Limited – Standard Terms and Conditions

Acknowledgement and acceptance

Spectrum Consulting Limited ("Spectrum", “Us”, “We” or “Our”) provides various cloud, network, security, development, support and consulting services to its customers (“Customer”, “You” or “Your”).  All Services are provided by Spectrum under these standard terms and conditions.

Please read the following terms and conditions carefully.  By ordering, receiving or using the Services, You accept and agree to these terms and conditions. Capitalised terms are defined at the end of these terms and conditions.

Agreement Structure

(1)        These terms and conditions set out the general terms and conditions which apply to all Services supplied by Spectrum to You.

(2)        The attached Schedules set out the terms and conditions applicable to the particular type(s) of Services supplied by Spectrum.

(3)        The Services will be provided under one or more Service Contracts entered into by the parties agreeing a Statement of Work.

(4)        These terms and conditions, together with a Statement of Work agreed by the parties, comprise a “Service Contract” which constitutes the entire agreement between You and Spectrum relating to the Services described in the Statement of Work, and supersedes any and all prior agreements or understandings between the parties. 

(5)        If there is any conflict or discrepancy between these terms and conditions and the Statement of Work, then these terms and conditions will prevail.

1.          Term

1.1.      A Service Contract shall commence on the Commencement Date and shall expire upon completion of the Services under that Service Contract, unless terminated earlier by either party pursuant to clause 18. 

1.2.      Notwithstanding clause 1.1, if a Service Contract includes a specified term or minimum term (e.g. IaaS Service Contract), then:

(a)        The Customer cannot terminate the Service Contact until the expiry of that term.  If a Customer refuses to perform or repudiates a Service Contact containing a specified term or minimum term, then all amounts payable for the remainder of that term shall become immediately due and payable by the Customer and Spectrum shall (without prejudice to its other rights) be entitled to receive those amounts and terminate the Service Contract.  The Customer acknowledges that Spectrum incurs various costs for such Services (including commitments made to Third Party Suppliers), and full payment is intended to compensate Spectrum for such costs; and

(b)        At the expiry of the specified term or minimum term, the term of the Services Contract will automatically extend for successive periods of duration equal to that of the original specified term or minimum term, unless either party gives notice to the other in writing prior to the expiry date.  Service Charges may be altered by Spectrum for any term extension, to reflect Spectrum’s then-current market rates.  For automatic extensions pursuant to this clause, either party may terminate the Services Contract during the extension term pursuant to clause 18.1.

 

 

2.          Services and statEments of work

2.1.      The Services (including any Deliverables) to be supplied from time to time shall be described in one or more Service Contracts.  Each Service Contract agreed between the parties constitutes a separate contract to provide the Services specified in the Statement of Work on the terms and conditions of that Service Contract.  

2.2.      The Services (including any Deliverables) are confined to the work specified in the Statement of Work.  Any work (products or services) not expressly recorded in the Statement of Work is excluded. 

2.3.      A Service Contract does not grant the Customer any right to any future versions or upgrades or updates to the Service, nor any support services.  To obtain updates and/or support, the Customer must enter into a separate support Service Contract with Spectrum.

2.4.      Alterations to the proposed scope of Services due to change requests, variations, other scope changes or delays beyond the control of Spectrum will be the subject of an additional fee which will either be agreed between the parties or charged in accordance with Spectrum’s then applicable current charge rates.  Any such alteration may also impact other aspects of the Services including, but not limited to, the Customer’s designated responsibilities and any Service delivery schedules or milestones.

2.5.      Spectrum shall use its reasonable commercial endeavours to provide the Services according to any agreed timetables, provided however that dates in any timetable set out in a Service Contract are intended for planning and estimating purposes only and are not contractually binding.  Estimates of time for completion of the Services are given on the assumption that Spectrum receives full cooperation and commitment from the Customer, its employees and its agents (including the provision of any information required). Any failure or delays in providing the cooperation required may result in additional fees payable by the Customer.  Spectrum shall not be liable for any damages arising from any delay in supply of the Services.

2.6.      The Customer acknowledges that Spectrum may be required, in the course of providing the Services, to make assessments based on information supplied by the Customer or compiled by others. Spectrum will rely on such information and shall not be obliged to verify its accuracy or completeness.  The Customer agrees that Spectrum will not be liable for any loss or damage the Customer or any other person sustains, directly or indirectly, in connection with Spectrum’s reliance on that information.

3.          CUSTOMER Warranties

In entering into and performing its obligations under a Service Contract, the Customer represents and warrants as follows:

3.1       It has full corporate power and has obtained the required authority to enter into and perform its obligations under the Service Contract;

3.2       Where approvals or decisions are contemplated by the Service Contract the Customer’s decision will be given promptly and will be within that Customer’s delegated authority levels;

3.3       Full performance of the Service Contract will not result in the Customer breaching any other agreement;

3.4       It will cooperate with Spectrum in good faith and perform its obligations under the Service Contract in a timely manner;

3.5       It will comply with Spectrum’s security, operational and confidentiality requirements as set out in the Service Contract and as advised by Spectrum from time to time in writing; and

3.6       It will comply with all relevant laws and regulations and maintain, at its cost, all licences, approvals and permits required by law in order for it to obtain and use the Services.

4.     CUSTOMER’s Responsibilities

The Customer agrees to:

4.1.      Provide the information, Customer Data, materials and documentation Spectrum reasonably requires to provide the Services;

4.2.      Provide Spectrum with reasonable access to Customer resources, equipment and / or sites to the extent necessary to allow Spectrum to perform its obligations under a Service Contract;

4.3.      Arrange access and security to third parties where applicable;

4.4.      Provide necessary communications access and infrastructure to facilitate remote access to the Customer System and supply of the Services by Spectrum;

4.5.      Provide safe and secure working facilities for Spectrum personnel when working onsite at Customer’s premises, or the premises of third parties when providing Services requested by the Customer, and in particular shall ensure that:

(i)          All hazards and risks within those premises and associated with the Services activity have been identified, assessed and controlled;

(ii)         Spectrum’s personnel are notified in writing of all health and safety rules and procedures applicable to the premises; and

(iii)        Each of Spectrum’s personnel are inducted at the commencement of the Project to ensure that they are aware of the applicable health and safety policies and procedures for the premises.

The Customer is responsible for overall workplace safety and legal requirements for the premises under the Health and Safety at Work Act 2015.

4.6.      Provide one or more suitably qualified, informed and authorised representatives (to be specified in the Statement of Work) who shall make decisions on behalf of the Customer and be available to supervise the supply of the Services and to advise on access, resourcing and any other matter within the Customer’s knowledge or control which may assist Spectrum in complying with its obligations under a Service Contract.  The Customer shall provide prompt written notice to Spectrum of any changes in its authorised representatives.

4.7.      Ensure that appropriate back-up, security and up-to-date virus detection software and intrusion detection systems are in place, and comply with Spectrum’s reasonable security and operating procedures (notified to the Customer in writing), for the Customer System or when interfacing with Spectrum;

4.8.      Make necessary staff available for consultation on request;

4.9.      Make decisions promptly, to facilitate the performance of the Services;

4.10.   Ensure that anyone who is authorised or enabled to uses the Services does so in a lawful manner which is consistent with the Customer’s obligations under the Service Contract;

4.11.   Follow all reasonable and lawful instructions provided by Spectrum in relation to the Services; and

4.12.   Promptly pay all invoices issued by Spectrum in accordance with clause 6.

5.     Spectrum’s Responsibilities

In providing the Services under a Service Contract, Spectrum will:

5.1.      Supply the Services (including any Deliverables) in the manner described in the Statement of Work;

5.2.      Provide You with updates on the progress of the Services upon request;

5.3.      If working on site at Your premises, require our personnel to comply with Your reasonable health and safety rules and procedures (if any) that are notified in writing to Us in advance; and

5.4.      Cooperate with You and Your agents, employees or contractors involved in any activities related to the Services.

6.     Service Charges, Expenses and Payment

6.1.      The Customer shall pay all Service Charges as specified in the Statement of Work.  If no Service Charges are specified in the Statement of Work, then Our Service Charges are calculated on the basis of time spent on the Services at Our applicable current charge rate.  Out of pocket expenses incurred must also be reimbursed to Us.  Fees and expenses will be invoiced monthly, unless otherwise agreed.

6.2.      The Customer shall pay Spectrum’s invoices for Service Charges in accordance with the payment terms specified in the Statement of Work, or if not specified, then by the 20th day of the month following the date of invoice.

6.3.      The Customer shall pay all Service Charges when due in full and without any deductions, set off, counterclaim or offset of any kind.

6.4.      In the event any monies due under a Service Contract (whether for Service Charges or otherwise) are not paid in full when due, Spectrum shall be entitled to:

(a)        Charge interest at a rate of 14% per annum on any amounts outstanding, and recover all debt collection costs and legal expenses (on a solicitor-client basis); and

(b)        Immediately suspend further work under any Service Contract. If the Services are suspended, Spectrum shall not be obliged to resume the Services until the amount owing, and any costs incurred in relation to the suspension are paid in full and, if Spectrum deems appropriate, Spectrum has received adequate security for any future Service Charges. Spectrum shall not be liable to the Customer or any other person for any losses arising from suspension of the Services, and nothing in this clause shall prejudice or otherwise affect any other rights Spectrum has under the Service Contract. 

6.5.      Unless otherwise specified, all Service Charges, disbursements, expenses or any other reference to amounts payable by the Customer under a Service Contract are stated exclusive of GST or any other Tax, for which the Customer shall be liable.

6.6.      If You dispute the whole or any part of the amount claimed in an invoice submitted by Us:

(a)         You shall pay the portion of the amount stated in the invoice that is not in dispute and shall notify Us in writing (within 10 Working Days of receipt of the invoice) of the reasons for disputing the remainder of the invoice; and

(b)         If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced or if an invoice is unpaid without notice under this clause, then You shall pay the amount together with interest (14% per annum, calculated daily from the date of the invoice) on that amount.

If no dispute is notified pursuant to (a), You shall be deemed to have accepted the invoice.

7.          Service Level Credits

7.1.      The Customer shall only be entitled to Service Level Credits where Service Levels and Service Level Credits are specifically agreed in a Statement of Work.  Spectrum shall provide Service Level Credits to the Customer as a result of a failure to deliver Services to the required Service Levels (if applicable).

7.2.      The total Service Level Credits due to the Customer in any one calendar month will be the sum of all Service Level Defaults under the relevant Service Contract during that month. The total Service Level Credits in any one calendar month shall not exceed 25% of the total Service Charges paid or payable under the Service Contract in that month in which the Service Level Default (s) occurred.

7.3.      Where Service Level Credits are due, the Customer shall submit a written claim to Spectrum stating the Service Level that was defaulted and Spectrum will, acting reasonably and within ten (10) Business Days, determine if Service Level Credits are due.  If Service Level Credits are due, Spectrum will deduct the total Service Level Credits from the Service Charges due in the next invoice issued by Spectrum.  No Service Level Credits shall be redeemable for cash, transferable to any other person or available in relation to other services outside the applicable Service Contract.

7.4.      The Customer’s sole and exclusive remedy for Service Level Defaults shall be the provision of Service Level Credits in accordance with the Service Contract, including this clause 7.  Failure to meet a Service Level will not be deemed to be a breach of the Service Contract.

7.5.      No Service Level Credits will be payable for Service Level Defaults occurring within the first sixty (60) Business Days from the commencement of the provision of the relevant Services.

7.6.      Regardless of anything else in the Service Contract, the Customer shall have no entitlement to Service Level Credits (or any other remedy) if the Customer has breached its obligations in the Service Contract.

8.          SPECTRUM Warranties

8.1.      Spectrum warrants that it is the duly authorised owner or licensee of the Spectrum Intellectual Property used or incorporated in the Services, and has the right and authority to use and supply the Spectrum Intellectual Property for the purpose of supplying the Services to the Customer on the terms of the Service Contract.

8.2.      Spectrum warrants that the Services (excluding Third Party Supplies) will be substantially free from defective workmanship when supplied.  This warranty is void if the Services fail as a result of accident, abuse, or incorrect use. If Spectrum breaches this warranty, then Spectrum’s entire liability, and the Customer’s exclusive remedy for breach, shall be, at Spectrum’s option, either:

(a)        Resupplying the Services; or

(b)        Crediting or refunding the Service Charges paid for the defective Service.

8.3.      In the absence of any notice of defects being given to Spectrum within thirty (30) days from the date of supply of the Services, the Customer shall be deemed to have accepted the Services.

8.4.      The warranty in clause 8.2 shall be void in the event of authorised alteration, modification, reconfiguration or other interference with the Services by the Customer or a third party.

8.5.      Unless otherwise expressly agreed in writing, Spectrum does not provide any warranties for Third Party Supplies sold, supplied or arranged by Spectrum, and the Customer acknowledges and agrees that:

(a)        It relies solely on the third party’s warranty (if any);

(b)        The third party supplier’s supply terms apply (including any third party software licence and maintenance terms); and

(c)         The Customer shall be solely responsible for compliance with the third party supplier’s warranty registration and claims processes.

8.6.      To the maximum extent permitted by law, and except as expressly recorded in these terms and conditions, Spectrum disclaims all other warranties, conditions, undertakings and representations in relation to the Services, either express or implied, including, but not limited to, implied warranties of merchantability or fitness for a particular purpose.

9.     USE OF MATERIALS

9.1.      Spectrum may use or develop software, scripts, spreadsheets, databases or other electronic tools, documentation or other materials (all “Materials”) in providing the Services.  If Spectrum provides Materials to the Customer, the Customer acknowledges that (except where the Materials are an agreed Deliverable) the Materials were developed for Spectrum’s purposes and without consideration of any purpose for which the Customer might use them, are made available on an "as is" basis for Customer use only and must not be distributed to or shared with any third party.  Spectrum makes no representations or warranties as to the sufficiency or appropriateness of the Materials for any purpose for which the Customer or a third party may use them.

9.2.      If the Customer has fully complied with the Service Contract, Spectrum shall grant the Customer a perpetual, non-exclusive and non-transferable licence to use the Materials for the sole purpose of the Project.

10.       user obligations

10.1.   The Customer must not, and will ensure that Users do not:

(a)         except to the extent expressly permitted under the Service Contract, reproduce, download, frame, mirror, display, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works of or otherwise modify any Services;

(b)         except to the extent expressly permitted under the Service Contract, license, sub-license, sell, rent, lease, transfer, assign, distribute, disclose, or otherwise make available any Services to any third party, or use any Services on a service bureau basis or otherwise to provide services to any third party;

(c)         Interfere with or impede the functionality or proper working of any Services or Spectrum Systems used to make the Services available, or violate any notified requirements, procedures, policies or regulations of such Systems;

(d)         access or use any Services in a manner that violates any law;

(e)         remove, obscure or alter any trademarks, brand names (if any), or other proprietary notices appearing on or contained within any Services; or

(f)          otherwise use or access any Services other than as expressly permitted by a Service Contract.

10.2.   The Customer agrees that it is responsible for, without limitation, the following:

(a)         Protecting the names and passwords of the Users of the Services and preventing and notifying Spectrum of any suspected or actual unauthorised use of the Services;

(b)         The lawfulness of each User's acts and omissions; and

(c)         Using the Services within the permitted scope and only in accordance with the numbers, types and identifiers of permitted Users, applications, devices, capacity and locations at or through which the Customer is permitted to use the Services as described in the Statement of Work.

11.       Confidentiality

11.1.   Each party shall maintain as strictly confidential at all times and shall not at any time, directly or indirectly:

(a)        Disclose, permit or allow to be disclosed, the Confidential Information to any person;

(b)        Use the Confidential Information for any purpose other than the provision or use of the Services;

(c)         Use the Confidential Information to the detriment of the other party that supplied the Confidential Information;

(d)        Copy or record by any means, memorise or use the Confidential Information for its own benefit or for the benefit of any person other than the party that supplied the Confidential Information, except:

(i)          As required by law;

(ii)         As authorised in writing by the party that supplied the Confidential Information; or

(iii)        As is already or becomes public knowledge, otherwise than as a result of a breach of the Service Contract.

11.2.   The parties may disclose the Confidential Information to:

(a)        Their respective legal advisors, auditors, insurers and accountants; and

(b)        The parties’ employees, contractors or agents who need-to-know the Confidential Information, provided those persons have been made aware of the obligations of confidentiality under the Service Contract and agreed to comply fully with those obligations.

12.       Internet Communications

Spectrum will communicate with You via email.  Electronically transmitted information cannot be guaranteed to be secure or error free and it can be adversely affected or unsafe to use. Spectrum will use commercially reasonable procedures to check for the most commonly known viruses before sending information electronically, but Spectrum will not be liable for any error or omission arising from or in connection with the electronic communication of information to You.

13.       Intellectual Property

13.1.   Customer Intellectual Property remains the property of Customer and / or its licensors.  The Customer grants Spectrum a non-exclusive, non-transferable licence to use the Customer Intellectual Property for the sole and exclusive purpose of the Project, for the Term of the Service Contract.  This licence does not convey title or grant any rights of ownership in Customer Intellectual Property to Spectrum.

13.2.   Spectrum Intellectual Property remains the property of Spectrum and / or its licensors.  Spectrum grants the Customer a non-exclusive, non-transferable licence to use the Spectrum Intellectual Property for the sole and exclusive purpose of the Project, for the Term of the Service Contract.  This licence does not convey title or grant any rights of ownership in Spectrum Intellectual Property to the Customer.  Spectrum may, at its sole discretion, create new or derivative Spectrum Intellectual Property, or amend, modify, alter, add to, or remove from, the Spectrum Intellectual Property when providing the Services.

13.3.   Except as expressly provided in these terms and conditions, neither party shall have any right to use, copy, modify, reverse engineer, transfer, licence, distribute, lease or otherwise deal with any Intellectual Property owned by the other party.

14.  Customer Data

14.1.   By submitting, uploading or otherwise supplying Customer Data to Us or the Service, You represent and warrant that such Customer Data does not infringe upon any third party Intellectual Property right or other legal right, including, but not limited to, patent, copyright, trademark, trade secret, privacy or other intellectual or proprietary right.

14.2.   You acknowledge and agree that:

(a)         You are responsible for the design, development, security, protection, modification, content, backup and maintenance of the Customer Data for use with the Services (except for any of these that we expressly agree to provide as part of the Services);

(b)         We do not vet, validate or approve the Customer Data available through the Services and We do not accept any liability for the Customer Data;

(c)         You grants Us an irrevocable licence during the Term to reproduce, publish, copy or transmit the Customer Data without charge for the purposes of supplying the Services;

(d)         You authorise Us to amend or delete any of the Customer Data where the Customer Data is, or is alleged to be, defamatory, in breach of copyright, illegal or not appropriate in Our reasonable opinion to be accessed by or through the Services; and

(e)         To the fullest extent permitted by law, You access and use the Customer Data at Your own risk.

14.3.   You agree that You shall at all times indemnify and hold harmless Spectrum and its employees, agents, contractors, nominees and similar from and against any claims, losses, damages, costs (including legal fees on a solicitor – client basis) or liability incurred or suffered where such claim, loss, damage, cost or liability arises from or in relation to the Customer Data uploaded or transmitted through the Services.

14.4.   If You submit or upload personal information to Us or Our related companies (including personal information supplied to Us by Your clients), You consent to the collection, use, processing, transmission and disclosure of that information by Us and Our Related Companies.  You warrant that You have obtained all necessary consents (including all consents required by the EU General Data Protection Regulation) to disclose the personal information to Us and Our related companies, and for Us and Our related companies to retain and use that information for the supply of Services and any of the other purposes set out in Our current privacy statement (accessible at http://sc.nz/privacy-policy/).  Our privacy statement may be updated from time to time.  The parties hereby agree that Our privacy statement, as may be modified from time to time by us, is incorporated into each Service Contract.

15.  DEliverables

15.1.   Spectrum will source and supply the Deliverables.

15.2.   The Customer will be responsible for confirming acceptance of Deliverables.  Items identified by the Customer as defective will be promptly remedied or replaced by Spectrum.  If Spectrum is not notified in writing of defective Deliverables within ten (10) days of delivery of those Deliverables, then those Deliverables will be deemed to be accepted.

15.3.   Risk in the Deliverables passes on delivery to the Customer.

15.4.   Title to Deliverables passes when Spectrum receives full payment.  Until full payment, Spectrum reserves all ownership rights to the Deliverables.

15.5.   Where delivery occurs before payment, or Deliverables are supplied (but not sold) by Spectrum to the Customer for use in the Project, then the parties agree that:

(i)          Spectrum has a registrable first-ranking security interest in the Deliverables supplied; and

(ii)         The Customer shall ensure that the Deliverables are fully insured (replacement value) and that Spectrum is recognised as an additional insured on the Deliverables insurance policy (a copy of the Customer’s insurance policy shall be supplied to Spectrum upon request),

until the Deliverables are paid in full, or returned in acceptable condition to Spectrum.  The Customer agrees that nothing in sections 114(1)(a), 116, 117(1)(c), 119, 120(2), 121, 125, 127, 129, 131, 132, 133 and 134 of the Personal Properties Securities Act 1999 will apply to the Service Contract. The Customer agrees to waive its right to receive a copy of the verification statement confirming registration of a financing statement or a financing change statement relating to any security interest that may be created by the Service Contract (s148).

16.       Limitation of liability

16.1.   If We are liable for any loss, damages, claims, costs or other amounts arising from or in relation to the Services (including Deliverables) or a Service Contract (including, without limitation, for breach of any obligation (statutory, express or implied) relating to the Services or a Service Contract (whether in contract, tort (including negligence), equity, statute or otherwise), Our maximum aggregate liability shall be limited to the total amount of Service Charges paid by You for the applicable Service in the ninety (90) day period preceding the event giving rise to the liability.

16.2.   Except as provided in clauses 7, 8 and 16.1, and notwithstanding anything else in the Service Contract, to the maximum extent permitted by applicable law We shall not be liable for any loss, damages, claims, costs or other amounts whatsoever (including, without limitation, lost revenues, loss of business profits, business interruption, loss of business information, or other pecuniary loss, or any direct, indirect, special, incidental, punitive, exemplary or consequential damages of any nature) arising out of or in relation to the Service or the Service Contract, even if We have been advised of the possibility of such damages.

16.3.   No claim arising out of a Service Contract, regardless of form, may be brought by You more than one year after the event that gave rise to that right of claim.

17.       Suspension of Services

17.1.   Spectrum may suspend, disconnect or discontinue the Service in whole or in part at any time without notice if, in Spectrum’s reasonable opinion:

(a)        It is necessary to safeguard the provision of the Service and the integrity of the Service, the Spectrum Equipment or the Spectrum System;

(b)        The Service, Spectrum Equipment or the Spectrum System requires urgent modification or maintenance;

(c)         Security situations (for example a DDoS attack on a server) threaten the stability of the Spectrum System;

(d)        There is or has been unauthorised, unlawful or fraudulent use of the Service or the Customer’s use of the Service is causing or may potentially cause damage or interference to the Spectrum System;

(e)        It is necessary to comply with a direction, order or request of any governmental authority or other competent authority; or

(f)          The Customer fails to comply with the terms of the Service Contract.

17.2.   Unless otherwise agreed, any suspension of the Services under clause 17.1(a) or 17.1(c) – (f) shall not represent a Service Level Default, nor give rise to any Service Level Credits, compensation or other remedies.

17.3.   Should Spectrum need to suspend a Service in accordance with clause 17.1, Spectrum will advise the Customer as soon as practical.

18.       Termination

18.1.   Subject to any specified Term or minimum Term specified in a Statement of Work, either party may at any time terminate a Service Contract by giving not less than sixty (60) Business Days’ written notice to the other party.

18.2.   Subject to clause 6.6 , Spectrum may immediately terminate a Service Contract if the Customer has not made payment of the Service Charges when due, and has not remedied the non-payment within five (5) Business Days of notice from Spectrum notifying the Customer of the overdue payment.

18.3.   Either party (“first party”) may immediately terminate a Service Contract prior to completion of the Services by giving written notice to the other party (”second party”) if:

(a)        The second party breaches the Service Contract and that breach cannot be remedied, or where the breach can be remedied, the second party fails to remedy the breach within twenty (20) Business Days after the first party has notified the second party of the breach; or

(b)        Any secured creditor of the second party takes any steps to exercise its rights in relation to that party’s assets, or the second party becomes or is deemed to become insolvent, bankrupt or unable to pay its debts in the ordinary course of business, goes into liquidation, has a receiver or statutory manager appointed in respect of it or any part of its assets, or makes any assignment to, or enters into an arrangement for the benefit of, its creditors.

18.4.   The parties acknowledge and agree that:

(a)        Termination of a Service Contract under this clause 18 does not affect the validity of (nor does it terminate) any other Service Contract(s); and

(b)        A breach only gives rise to a right to terminate the particular Service Contract under which the breach occurred.

18.5.   If a Service Contract is terminated prior to completion of the Services, the Customer shall (subject to clause 1.2) pay to Spectrum all Service Charges accrued up to the date of termination.

18.6.   On expiration or termination of all current Service Contracts, each party shall immediately cease to use the other party’s Confidential Information and shall, if requested:

(a)        Return the other party’s property including Confidential Information; or

(b)        At the option of the other party, destroy and certify in writing to the other party the destruction of all of that party’s Confidential Information.

18.7.   Termination of a Service Contract will be without prejudice to any accrued rights or remedies of either party.

19.  Dispute Resolution

19.1.   The parties agree to use their best efforts to resolve any dispute which may arise under a Service Contract through good faith negotiations.

19.2.   Either party may raise a dispute by written notice to the other party setting out details of the dispute. 

19.3.   On receipt of a dispute notice the parties’ authorised representatives shall meet (or otherwise communicate, if a meeting is not practicable) and attempt to resolve the dispute through good faith negotiations on a ‘without prejudice’ basis within ten (10) Business Days of the date of the notice.  

19.4.   If the dispute is not resolved under clause 19.3 within ten (10) Business Days from the commencement of negotiations under clause 19.3, then the dispute shall be escalated to the parties’ respective chief executives (or equivalent).

19.5.   Where escalation occurs, the parties’ chief executive officers (or equivalent) shall meet (or otherwise communicate if a meeting is not practicable) and attempt to resolve the dispute through good faith negotiations on a ‘without prejudice’ basis.

19.6.   If the dispute is not resolved under clause 19.5, the parties may (by written agreement) agree to attempt to settle the dispute by mediation.  If the parties agree to mediate, the parties shall appoint a mediator agreed by the parties, or if there is no agreement on the mediator within ten (10) Business Days of the parties agreeing to mediation, the mediator will be appointed by the President of the New Zealand Law Society or his/her nominee. Before mediation commences, the parties and the mediator shall sign a mediation agreement. The cost of the mediation will be shared equally between the parties or as the mediator otherwise directs.

19.7.   If the parties do not agree to mediation, or if after mediation has been attempted, the parties remain unable to reach a satisfactory outcome, then the dispute shall be referred to arbitration, provided that neither party shall commence any arbitration in relation to a Service Contract unless ten (10) Business Days have passed since the parties’ respective chief executive officers (or equivalent) have met (or otherwise communicated) and endeavoured to resolve the dispute in good faith and on mutually acceptable terms under clause 19.5.   Arbitration shall occur pursuant to the Arbitration Act 1996, before a single arbitrator.  In the event that the parties cannot agree upon an arbitrator, then an arbitrator shall be appointed by the President of the New Zealand Law Society.

19.8.    In the event of a dispute between the parties under a Service Contract, the parties shall continue to perform their obligations under all Service Contracts as far as possible as if no dispute had arisen, pending the final settlement of any matter referred to dispute resolution pursuant to this clause 19.

19.9.   Nothing in this clause 19 shall preclude either party from taking immediate steps to seek urgent equitable relief.

20.       General provisions

20.1.   Entire agreement: Each Service Contract forms the entire agreement between the parties relating to the supply of the specific Services forming the subject matter of the Service Contract.  Each Service Contract replaces and supersedes any previous proposals, correspondence, agreements, understanding or other communications (whether written or oral) between the parties in relation to the specific Services covered by that Service Contract.  

20.2.   Force Majeure: Except for an obligation to pay money, neither party will be liable for any act, omission or failure to fulfil its obligations under a Service Contract to the extent that such act, omission or failure arises from an event of Force Majeure reasonably beyond its control.

20.3.   Substitutes: Spectrum may, at any time, upon written notice to the Customer, substitute any component of the Services (including Deliverables) under a Service Contract (including, without limitation, to reflect changes in technology, industry practices, patterns of system use, and availability of Third-Party Supplies), provided that any substitution will not adversely affect the performance of the Services and provides substantially the same or greater features, functionality or specifications agreed between the parties under the Service Contract.

20.4.   Non-solicitation: The Customer shall not, during the Term and for a period of twelve (12) months after termination of all Service Contracts, either directly or indirectly and whether on their own account or on behalf of or in conjunction with any other person, employ or engage (or attempt to employ or engage) any employee or contractor of Spectrum who has taken part in the performance or supply of a Service.

20.5.   Indemnity:  The Customer shall at all times indemnify and hold harmless Spectrum and its employees, agents, consultants, contractors, nominees and similar from and against any claims, losses, damages, costs (including legal fees on a solicitor – client basis) or liability incurred or suffered where such claim, loss, damage, cost or liability was caused by a breach by the Customer of its obligations under the Service Contract (including a failure to pay money when due).

20.6.   Waiver: No waiver, extension or excuse (as the case may be) shall be deemed to arise unless it is in writing and signed by an authorised representative of the party providing it.  No delay, neglect or forbearance by either party in enforcing any provision of a Service Contract will be a waiver, or in any way prejudice any right of that party. However, the rectification of any given instance of a breach of the Service Contract by the breaching party shall operate as a waiver in respect of that particular instance rectified.

20.7.   Exclusions:  The parties agree that the Service is being obtained for business purposes by the Customer, and that the Consumer Guarantees Act 1993 and Sections 9, 12A and 13 of the Fair Trading Act 1986 shall not apply to the Service Contract or the supply of the Service to the Customer.

20.8.   Survival: The covenants, conditions and provisions of these terms and conditions which are capable of having effect after expiration or termination of all Service Contracts shall remain in full force and effect following expiration or termination, including, without limitation, clauses 11, 13 and 16.

20.9.   Governing law: Each Service Contract is governed by and shall be construed in accordance with the laws of New Zealand, excluding sections 202 – 206 of the Contract and Commercial Law Act 2017 (United Nations Convention on Contracts for the International Sale of Goods).  You irrevocably submit to the exclusive jurisdiction of the Courts of New Zealand.

20.10.Relationship between the parties: Nothing express or implied in the Service Contract shall constitute either party as the partner, agent, fiduciary, employee or officer of, or as a joint venture with, the other party and neither party shall make any contrary representations to any person or incur any liabilities on behalf of the other, except to describe the Services in a manner consistent with an agreed Service Contract, or otherwise with the other party’s prior written consent.  

20.11.Subcontractors: Spectrum reserves the right to engage subcontractors, and any reference to its staff includes subcontractors. Subject to these terms and conditions, Spectrum will remain liable to the Customer for any of the Services that are provided by any subcontractor.

20.12.Variations: Subject to clause 2, variations to a Service Contract may be agreed in writing between the parties, and any such variations shall form part of the Service Contract.

20.13.Commissions: The Customer acknowledges that Spectrum may receive commissions from Third Party Suppliers.

20.14.    No reliance: The Customer acknowledges that it has had the opportunity to take its own specialist advice on the Service Contract, the Project and the Services (including technical and legal advice) and relies solely on its advisors, save for any documented representations made by Spectrum in the Service Contract.  Spectrum accepts no liability for any claim relating to or arising from any representations, conduct, warranties, conditions or agreements made by any agent or representative of Spectrum, which is not expressly confirmed by Spectrum in the Service Contract.

20.15.    Conflicts: Any conflicts in a Service Contract shall be resolved according to the following priority:

1)       The specific Service terms and conditions relating to the Service(s) provided, as detailed in the applicable Schedules; and

2)       These standard terms and conditions; and

3)       The Statement of Work.

20.16.    Severability: If any provision of a Service Contract is held to be invalid, illegal or unenforceable, such provision will be severed from the Service Contract and the remainder of the Service Contract will remain in full force and effect.

20.17.    Services not exclusive: Spectrum will not be prevented or restricted by anything in any Service Contract from providing services to other persons. Spectrum shall take commercially reasonably steps to ensure that Confidential Information communicated to it during the course of the Services will be maintained confidentiality and separate from staff assigned to services in which there is a manifest competing interest of another client.

20.18.    Notices: Notices may be delivered by hand/courier or by email to the recipient's physical or email address, marked for the attention of the party’s nominated person, to the addresses specified in the Statement of Work (or any other address advised in writing from time to time).  Notices will be deemed received:

(a)     If the notice is hand delivered or delivered by courier, on the day of delivery; or

(b)     If the notice is sent by email, in accordance with section 214 of the Contract and Commercial Law Act 2017 (Receipt of Electronic Communications).

20.19.    Assignment: Spectrum may assign any of its rights and responsibilities under a Service Contract to any Related Company. In all other circumstances, neither party may assign, transfer or novate its rights and responsibilities under a Service Contract without the prior written consent of the other party (which shall not be unreasonably withheld).

21.  Definitions and Interpretation

21.1.       Definitions: 

In these terms and conditions, unless the context indicates otherwise:

Business Day means Monday to Friday, other than any public holiday within the meaning of the Holidays Act 2003, and any days between 24 December – 5 January (inclusive);

 

Confidential Information means any information (in any form, whether written, electronic or otherwise), disclosed or communicated by a party to the other, or accessed by the other party in relation to the Services including, without limitation:

(a)        The terms of the Service Contract;

(b)        All Customer Data;

(c)         Information relating directly or indirectly to the finances, strategies, management or business operations of either party or its suppliers or customers;

(d)        Information disclosed by either party on the express basis that such information is confidential;

(e)        Information or material proprietary to or property of either party, including Intellectual Property, software, source codes, user manuals, programming manuals, flow-charts, drawings, models, drafts (including all working papers and electronic files for any Service engagement, which remain Our property), diagrams and Materials;

(f)          Trade secrets and all technical information, know-how, operating procedures, processes, business methods and other information created by, belonging to or developed by either party; or

(g)        Information which might reasonably be expected by either party to be confidential in nature;

provided that, where information relates exclusively to one party, nothing in these terms and conditions shall require that party to maintain confidentiality in respect of that information.

 

Commencement Date means, in respect of each Service Contract, the date on which the Services are to commence (as recorded in the Statement of Work or otherwise agreed by both parties), or if no commencement date is specified, then on the date the Statement of Work is signed or otherwise agreed by the parties ;

 

Customer, You or Your means the customer that has requested the Services, as recorded in the Statement of Work;

 

Customer Application means a software application that the Customer uploads or installs on the Spectrum Equipment, or that is uploaded or installed on the Spectrum Equipment at the request of the Customer;

 

Customer Data means all data, information, content, Customer Applications or other materials uploaded on, or otherwise supplied by the Customer (or by Spectrum on the Customer’s behalf) for uploading on, the Services from time to time;

 

Customer Intellectual Property means all pre-existing Intellectual Property of the Customer, including Intellectual Property in Customer Data, records, documents, reports, systems information, business process information, and other proprietary Intellectual Property of the Customer;

 

Customer System means the information technology systems, equipment (both server and client), hardware, software, network requirements and applications of the Customer;

 

Deliverable(s) means the deliverables to be provided by Spectrum, as expressly recorded in a Service Contract;

 

Force Majeure means, in respect of any party, any act, event or cause beyond the reasonable control of that party including (but not limited to):

(a)        An act of God, explosion, fire, flood, storm, lightning, earthquake, subsidence, nuclear fusion or other disaster;

(b)        Act of public enemy, war (declared or undeclared), terrorism, revolution, riot, military operations, government restraint, expropriation, prohibition, substantial intervention or change of legislation, regulation or policy;

(c)         Strike, lock-outs or other labour difficulty;

(d)        Malfunction, fluctuations or supply failures for electrical power, heat, light or water, equipment failures, transportation stoppages or slowdowns, or the inability to procure equipment, services, applications, parts or materials;

 

GST means goods and services tax as defined in the Goods and Services Tax Act 1985, at the rate prevailing from time to time;

 

Intellectual Property means all rights conferred under statute, common law and equity in and in relation to copyright, inventions (including patents), registered and unregistered trade-marks, registered and unregistered designs, circuit layouts, trade names, logos, Confidential Information, concepts, methods, know-how, trade secrets, software products and all other intellectual property rights of any nature anywhere in the world, statutory or otherwise, whether registered or not;

 

Materials means all materials supplied by Spectrum which are incidental to or associated with the Services, including materials developed during the supply of the Services, but excludes agreed Deliverables;

 

Project means the supply of Services to the Customer;

 

Related Company has the meaning set out in section 2(3) of the Companies Act 1993;

 

Schedule(s) means the specific terms and conditions applicable to a particular Service(s) attached as Schedules 1 to 5; 

 

Service(s) means the service or services provided by Spectrum to or for the Customer under a Service Contract, including any Deliverables;

 

Service Charges means the fees payable by the Customer for the Service as set out in a Statement of Work, and includes any disbursements or expenses incurred by Spectrum in the course of providing the Service.  Unless otherwise specified, Service Charges exclude GST and Tax;

 

Service Contract means the binding contract between the parties for the supply of the Service, comprising of:

(a)        These standard terms and conditions, including the attached Schedules recording the specific Service Terms and Conditions; and

(b)        The Statement of Work. 

Service Level Credits means a ‘service level rebate’ provided by Spectrum in accordance with the Statement of Work as a result of a failure by Spectrum to deliver a Service to the required Service Level;

Service Level Default means, for a particular Service Level during a particular calendar month, a failure by Spectrum to meet that Service Level during the calendar month (excluding a failure caused by a Force Majeure event or otherwise excluded in the Service Contact);

Service Level means the service level agreed between the parties (if any) applicable to the Service, as set out in the Statement of Work, the applicable Schedule(s) or otherwise agreed in writing between the parties;

Service Terms and Conditions means the terms and conditions applicable to the particular Service(s) as identified in the Statement of Work, which may include (without limitation) some or all of the following:

(a)        Cloud, Network and DR Services terms and conditions (Schedule 1);

(b)        Equipment terms and conditions (Schedule 2);

(c)         Consulting terms and conditions (Schedule 3);

(d)        Support terms and conditions (Schedule 4); and

(e)        Subscription Terms and Conditions (Schedule 5).

 

Spectrum means Spectrum Consulting Limited (2152502);

 

Spectrum Equipment means any computer (including both server and client hardware), communications or other equipment used by Spectrum for providing the Services, excluding equipment purchased by the Customer; 

 

Spectrum Intellectual Property means all Intellectual Property forming part of, or arising from or in relation to, the Services, but excludes Intellectual Property in Third Party Supplies and Customer Intellectual Property;

 

Spectrum System means the information technology systems, Spectrum Equipment, software, network and applications of Spectrum; 

 

Statement of Work means a statement of work, engagement letter, proposal, or other document or correspondence (including email) prepared by Spectrum, that describes the Services to be supplied to the Customer by Spectrum;

 

Tax means taxes (except for GST), levies, imposts, deductions, charges, withholdings, duties or similar charges (including, without limitation, resident withholding taxes or import duties), together with any related interest, penalties, fines and other statutory or regulatory charges;

 

Term has the meaning set out in clause 1;

 

Third Party Supplies: means all goods and services (including hardware and software) manufactured or supplied by persons other than Spectrum;

 

User means any and all persons authorised or enabled by the Customer to access or use the Services.

 

21.2.       Interpretation: 

In these terms and conditions, unless the context indicates otherwise:

(a)        References to parties means the parties to the Service Contract, and shall include their successors, permitted assigns and transferees (as the case may be).  A reference to “party” means any one of the parties.  Words denoting a gender shall include all other genders;

(b)        References to persons include references to any natural person, company, corporation, partnership, firm, joint venture, association, trust, organisation, society, or other group or association of persons (whether incorporated or not), governmental or other regulatory bodies or authorities or semi-governmental body or agency or other entity, in each case whether or not having separate legal personality;

(c)         The meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;

(d)        Singular words include the plural and vice versa, and where a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(e)        A reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(f)          If a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusively of that day;

(g)        Any references to any times or dates are references to New Zealand Standard Time;

(h)        All references to currency, prices, sums of money or payments are references to New Zealand currency unless specified otherwise;

(i)          Headings are for convenience only and do not affect the interpretation of the Service Contract, except for use as cross-references; and

(j)          Any covenant not to do anything shall also constitute an obligation not to suffer, permit, cause or assist any other person to do that thing.

 


Schedule 1 – Cloud, Network and DR Services Terms and Conditions

These terms and conditions shall apply to the supply of Cloud, Network and DR Services by Spectrum, and shall form part of the Service Contract between the parties.

1.          DEFINITIONS

(a)        In this Schedule:

API means the application programming interface made available by Spectrum in connection with the Service, including the technical and administrative specifications, standards, requirements, procedures and communication protocols promulgated by Spectrum in connection with such application programming interface.

AUP means an Acceptable Use Policy that describes certain requirements for use of the Services, as notified to the Customer by Spectrum.  The AUP may be updated by Spectrum from time to time.

Cloud, Network and DR Services means IaaS, NaaS and DRaaS (or any of them).

Data Centre means Spectrum’s data centre(s) used for provision of the Service.

Disengagement Period means the thirty (30) day period commencing on termination or expiration of the Service Contract.

Disengagement Plan means a disengagement plan which may be agreed between the parties in writing on termination of the Service Contract (or if no separate disengagement plan is agreed, then as specified in this Schedule).

DRaaS means the replication and hosting services provided by Spectrum under a Service Contract.

IaaS means the cloud computing resources (which may include access to and use of hosted software and Customer Applications) provided by Spectrum under a Service Contract.

NaaS means the network resources, services and applications (which may without limitation include Virtual Private Network (VPN), bandwidth, routing, security firewall, Wide Area Network (WAN) and antivirus services) provided by Spectrum under a Service Contract.

Simulated Role Swaps means the feature that enables the Customer to temporarily turn its backup system into a simulated primary system for testing, without the need to stop the production environment of the Customer’s primary system.

Software means the software (including, if applicable, the API) that Spectrum makes available for the Customer’s use as part of the Service, including both Spectrum’s software and Third Party Software.

Spectrum DR System means the Spectrum computer system(s) located at the data storage facility stated in the Service Contract and used for receiving and storing the Customer Data as part of the DRaaS Service, as further described in the Service Contract.

Third Party Software means software owned by third parties and general/public software that Spectrum uses or makes available to the Customer in connection with the Service.

(b)        Capitalised words not listed in (a) above adopt the definitions for those words used in the Standard Terms and Conditions.

2.     LICENCE TO USE IAAS SERVICE (Applicable to IaaS Customers only)

(a)        Subject to the Customer’s payment of all Service Charges and in accordance with the Service Contact and any AUP, Spectrum grants the Customer a limited, non-exclusive, non-transferable right and licence to access and use the IaaS Service for the Term.  This licence includes the right (if applicable) to use the API in connection with the Customer’s permitted use of the Service.

(b)        The IaaS Service may be additional or ancillary to other Services or offered on a stand-alone basis.

(c)        Subject to the Service Levels set out in the Service Contract, Spectrum endeavours to provide continuous and uninterrupted IaaS Service at all times.  The Customer acknowledges, however, that the Service is not fault free and may rely on factors outside the direct control of Spectrum (including communications networks, and other Third Party Supplies).

(d)        Subject to the Statement of Work, Spectrum shall:

(i)          Provide operational support and management of the Spectrum Equipment used in the IaaS platform;

(ii)         Monitor the Service for availability; and

(iii)        Provide operational governance.

(e)        Unless otherwise agreed in a Statement of Work, the IaaS Service does not include:

(i)          Networking and security;

(ii)         Physical cabling;

(iii)        Firewalls or firewall services;

(iv)        Backups or backup testing;

(v)         Non-business critical issues;

(vi)        Any service or support not covered by the Service Contract;

(vii)       Data Centre migrations;

(viii)     Applications; and

(ix)        Any Third Party Software licensing.

3.          LICENCE TO USE NAAS SERVICE (Applicable to NaaS Customers only)

(a)        Subject to the Customer’s payment of all Service Charges and in accordance with the Service Contact and any AUP, Spectrum shall supply a NaaS Service to the Customer for the Term.  This includes the right (if applicable) to use the Software in connection with the Customer’s permitted use of the Service.

(b)        The NaaS Service may be additional or ancillary to other Services or offered on a stand-alone basis.

(c)        Various NaaS Services are provided subject to the availability of the necessary services from Spectrum’s telecommunications providers.  Accordingly, whilst Spectrum endeavours to provide a continuous and uninterrupted NaaS Service at all times, Spectrum does not guarantee (nor is it a condition or warranty of the Service Contract) that transmission of data via the NaaS Service will always be possible without interruption or error.  Spectrum may, by written notice to the Customer, terminate or withhold the provision of NaaS Services (or any part of them), without liability, if:

(i)          Spectrum’s telecommunications providers terminate services to Spectrum or withdraw or substantially alter any underlying pricing; or

(ii)         Any regulatory authority asserts jurisdiction over the NaaS Services, with the result that Spectrum would be required to submit to common carrier, public utility or other regulations to which Spectrum is not then subject; or

(iii)        Spectrum no longer has the legal right to provide the NaaS Services.

(d)        Subject to the Statement of Work, Spectrum shall:

(i)          Provide operational support and management of the equipment used to supply the NaaS Service;

(ii)         Monitor the Service for availability; and

(iii)        Provide operational governance.

(e)        Unless otherwise agreed in a Statement of Work, the NaaS Service does not include:

(i)          Circuit provisioning services;

(ii)         Physical cabling;

(iii)        Management of any Customer equipment or other aspects of the Customer System;

(iv)        Screening or monitoring of data or traffic (including DDoS mitigation services);

(v)         Backups or backup testing;

(vi)        Cloud computing resources;

(vii)       Any service or support not covered by the Service Contract;

(viii)     Data Centre migrations;

(ix)        Applications; and

(x)         Any Third Party Software licensing.

(f)         The Customer shall allow Spectrum, and/or procure that Spectrum be allowed to install the network termination equipment at the Customer (or third party) facilities as required. The Customer undertakes to Spectrum that, from the time any network termination equipment is delivered to the Customer (or third party) facility until its return to Spectrum, the Customer will:

(i)          ensure that any instructions and/or manuals supplied by Spectrum for its operation and/or use will be observed;

(ii)         not allow any person to use it, or have access to it (whether physically or via any software), unless that person is appropriately trained and skilled or authorised by Spectrum to use or have access to it;

(iii)        keep it at all times and return it, or procure that it is kept at all times and returned, in good condition and working order and not, without the prior written consent of Spectrum, make or allow to be made any alteration or addition to it;

(iv)        not remove it, or allow it to be removed, from the site to which it was delivered, or sell, assign, charge, mortgage, pledge or sublet it or lend it out, or do or allow to be done anything which might prejudice Spectrum’s interest in it;

(v)         permit, or secure permission for, Spectrum and/or its representatives to have full and free access to it and provide such person(s) with reasonable facilities to inspect and/or repair it and give Spectrum such information relating to it as Spectrum may reasonably require; and

(vi)        observe and comply with all statutes and other obligations of any kind whatsoever in relation to it and its use.

(g)        If the NaaS Service includes supply of internet access services, the bandwidth provided shall be specified in the Statement of Work.  If unlimited, the Customer use of bandwidth must still satisfy any ‘fair use’ requirements imposed by Spectrum or the internet service provider.

(h)        Any Internet addresses provided by Spectrum will be from a Spectrum IP network block and are non-portable.  These addresses will be for the use of the Customer only, and shall not without Spectrum’s prior written consent (given in Spectrum’s absolute discretion) be used by or assigned to any third party.  Internet addresses allocated by Spectrum must be promptly returned to Spectrum if the Customer discontinues the NaaS Service for any reason, or on expiration or termination of the Service Contract.

(i)          In the event that a Customer is deemed by Spectrum to be a high risk of DDoS or other high volume attacks, the parties shall review the NaaS Service Contract and in the event they are unable to agree, Spectrum may suspend the NaaS Service.

4.          LICENCE TO USE DRaaS SERVICE (Applicable to DRaaS Customers only)

(a)        Subject to the Customer’s payment of all Service Charges and in accordance with the Service Contact and any AUP, Spectrum agrees to provide, and the Customer agrees to receive, the DRaaS Service for the Term.  This licence includes the right (if applicable) to use the Software in connection with the Customer’s permitted use of the Service.

(b)        The DRaaS Service may be additional or ancillary to other Services or offered on a stand-alone basis.

(c)        Spectrum endeavours to provide continuous and uninterrupted DRaaS Service at all times.  The Customer acknowledges, however, that the Service is not fault free and may rely on factors outside the direct control of Spectrum (including communications networks, and other Third Party Supplies).

(d)        The Disaster Recovery Services are confined to the tasks explicitly stated in the Service Contract. In the event of a simultaneous failure at both the Customer’s primary production location and the DRaaS target location, limited Customer Data loss is possible.  In addition, in a scenario where both the primary and backup systems are inoperable, extended Customer system downtime is possible.  The Customer accepts that the DRaaS Service provided by the Service Contract is limited as described in this clause.  Spectrum has no liability for Customer Data loss or Spectrum DR System unavailability. Should the Customer require a higher standard of data protection and/or system availability, the Customer acknowledges that a separate agreement may be negotiated for additional services providing higher levels of IT resiliency including, but not limited to, multiple parallel backup environments utilising broadcast real time replication.

(e)        Unless otherwise agreed in writing by the parties, the Service does not include any obligation on Spectrum to provide any support or maintenance services.

(f)         Subject to the Statement of Work, Spectrum shall:

(i)          Provide operational support and management of the Spectrum Equipment used for the DRaaS Service;

(ii)         Monitor the Service for availability; and

(iii)        Provide operational governance.

(g)        Unless otherwise agreed in a Statement of Work, the DRaaS Service does not include:

(i)          Networking and security;

(ii)         Physical cabling;

(iii)        Firewalls or firewall services;

(iv)        Cloud computing resources;

(v)         Non-business critical issues;

(vi)        Any service or support not covered by the Service Contract;

(vii)       Applications; and

(viii)     Any Third Party Software licensing.

(h)        Customer Data:  The Customer acknowledges that:

(i)          The Customer is responsible for the design, development, modification, content, backup and maintenance of the Customer Data for loading onto the Spectrum DR System;

(ii)         Spectrum does not vet, validate or approve the Customer Data and Spectrum does not accept any liability for that Data;

(iii)        The Customer grants Spectrum an irrevocable licence for the Term of the Service Contract to reproduce, publish, copy or transmit the Customer Data without charge for the sole purpose of supplying the Service;

(iv)        The Customer authorises Spectrum to amend or delete any of the Customer Data where the Data (or any of it) is, or is alleged to be, defamatory, in breach of copyright, illegal or not appropriate in Spectrum’s reasonable opinion to be accessed by or through the Services; and

(v)         To the fullest extent permitted by law, the Customer accesses and uses the Customer Data at the Customer’s own risk.

(i)          Customer Applications and other software:  Unless otherwise agreed in a Statement of Work, the Customer is responsible for supplying all Customer Applications and other software, including valid licenses, passwords, installation instructions and related materials and information, to enable Spectrum (or the Customer, under Spectrum’s supervision) to install the Customer Applications and other software on the Spectrum DR System to enable delivery of the Service by Spectrum (including Simulated Role Swaps).

(j)          Server-ready material:  The Customer agrees to provide Spectrum with Customer Data and Customer Applications and other software in a condition that is ‘server-ready’ and in a form which requires no additional manipulation on the part of Spectrum to complete installation on the Spectrum DR System.

(k)        Spectrum DR System Security:  The Customer must ensure that all Customer Data and Customer Applications and other software which it loads (or supplies for loading) onto the Spectrum DR System is free from any computer virus or other characteristic which would or would be likely to interfere with, corrupt or otherwise jeopardise the integrity of the Spectrum DR System.

(l)          Disaster Declarations:  The Customer may, by written notice to Spectrum, declare a disaster event. In the event that the Customer formally declares a disaster, then (subject to any recovery plan agreed between the parties in writing):

(i)          The parties shall immediately, urgently and in good faith work together in order to resolve a recovery plan for the Customer;

(ii)         Spectrum may acquire any licenses and other rights and items necessary to replicate the Customer Data and Customer Applications and other software, at the Customer’s expense;

(iii)        The Customer shall pay for Spectrum’s additional costs incurred in responding to, and assisting with, the Customer’s disaster recovery; and

(iv)        Provided the Customer has fully complied with the Service Contract, Spectrum shall do all things reasonably required by the Customer to achieve an expeditious recovery, provided however, that Spectrum:

·            Can require the Customer to make payment of Spectrum’s costs and services in advance of undertaking the services; and

·            Will not be responsible for reformatting the Customer’s Data to meet any new requirements, unless agreed (in Spectrum’s absolute discretion).

 

The following terms and conditions apply to all Cloud, Network and DR Services:

5.          SERVICE FAULTS

(a)        The Customer is responsible for notifying Spectrum of a Service fault as quickly as possible.

(b)        Spectrum will be responsible for trouble-shooting the source of the Service fault, and where the fault is:

(i)          Within the Spectrum System (including the Spectrum DR System) through no fault of the Customer, rectifying the fault; or

(ii)         Within the Data Centre or other similar Third Party Supplier through no fault of the Customer, escalating the fault to the appropriate Third Party Supplier; or

(iii)        Due to the fault of (or misuse by) the Customer or related to a Customer Application or the Customer Data, advising the Customer, and if requested, providing the Customer with Spectrum’s reasonable estimate of the likely cost to fix the fault;

in a timely manner.

(c)        Regardless of (b), if Spectrum investigates and/or rectifies the fault and reasonably determines, in Spectrum’s opinion, that the fault was not the responsibility of Spectrum or a Third Party Supplier arranged by Spectrum, then the Customer shall be liable to pay Spectrum’s charges and costs at its then prevailing rates for the work involved.

6.          API

Customers may access the Service through a web-based user interface.  Spectrum may modify and republish the API from time to time and the Customer must ensure that Customer Applications, Customer Data and Customer Systems are compatible with the then-current API.  If Spectrum removes or changes a material feature or function of the API, Spectrum will use commercially reasonable efforts to maintain backwards compatibility with the previous version of the API for twelve (12) months from the date of the change.

7.          THIRD PARTY SOFTWARE

(a)         If specified in a Statement of Work, the Service will include software licences from Third Party Software vendors.  Any licences ordered will incur fees as set out in the Statement of Works (or if not specified, then at the software vendor’s prevailing market rates).  The Customer acknowledges that licence fees may change from time to time in accordance with price changes from the software vendor and agrees to pay the new fees when notified by Spectrum.

(b)         The Customer must, and must ensure that its Users, comply with all licence and use terms and conditions for all Third Party Software.

8.          CUSTOMER APPLICATIONS

(a)         The Customer may install and host Customer Applications on the Service provided that the Customer complies with the relevant requirements and restrictions set out in the Service Contract (including these Cloud, Network and DR Services Terms and Conditions).  The Customer is solely responsible for the operation, support and maintenance of Customer Applications and for ensuring that it has the necessary rights to install and host such Customer Applications on the Service. 

(b)         The Customer is responsible for the acts and omissions of any Users of all such Customer Applications, and will require that Users comply with these terms and conditions, including any AUP.

(c)         Nothing in the Service Contract shall transfer to Spectrum any right, title or interest in and to the Customer Applications and other Customer Data, including all related intellectual property rights, and Spectrum will have (and Customer hereby grants to Spectrum) the right to use and host the Customer Applications and other Customer Data for the purpose of providing the Service.

9.          MAINTENANCE

Scheduled maintenance on the Service (including maintenance related to the Software, the Spectrum Equipment, the Spectrum System (including the Spectrum DR System) and any other equipment and materials used in connection with providing the Service) will be performed from time to time.  In addition, unscheduled maintenance may occasionally need to be performed. These maintenance activities may cause interruptions to the Service.  Spectrum will inform the Customer, including by electronic posting, at least 48 hours in advance of any scheduled service interruption and their anticipated duration.  In the case of interruptions caused by unscheduled or emergency maintenance, Spectrum will provide the Customer with as much prior notice, including by electronic posting, of any such Service interruptions as is reasonably practicable under the circumstances.  

10.  NO BACK-UP UNLESS AGREED

The Customer agrees that, unless DRaaS or back-up services are included in a Service Contract with Spectrum, Spectrum will not create, maintain or implement back-ups of any Customer Data and that the Customer is solely responsible for all back-up, archiving and data retention of Customer Data.

11.  CHANGES TO SERVICES

In the event that the Customer requests Service changes that require a virtual or physical change to any aspect of the Service, Spectrum may require a written variation request to be submitted.  Unless otherwise agreed, all variation work (including evaluation of any requested variations) shall be undertaken by Spectrum at its prevailing commercial rates.

12.  EMERGENCY SUPPORT

Emergency support is available outside standard support hours on a 24x7 basis and is chargeable on a time and materials basis.  Time will be charged at Spectrum’s prevailing call-out rates. Any materials or additional costs incurred by Spectrum will be invoiced to the Customer with a 10% mark-up. 

13.  ADDITIONAL CUSTOMER RESPONSIBILTIES

(a)        The Customer agrees to:

(i)          Obtaining, at its own risk, any further goods or services it requires for use of the Service, including, without limitation, security applications, firewalls, virus protection software and bug correction, security updates, and bandwidth and services required for access to the Service (except where the further goods or services are supplied by Spectrum under a current Service Contract);

(ii)         Adhere to all reasonable and lawful instructions from Spectrum and Third Party Software vendors;

(iii)        Provide Spectrum with reasonable assistance in relation to Software licences, including true and up-to-date details for licensing numbers;

(iv)        Assist in reporting on license usage when a request is made by Spectrum or a Software vendor, and proactively notify Spectrum in the event of a change in licensing or User numbers;

(v)         Maintain the Customer System and Customer Applications, including any software patching;

(vi)        Prepare itself for the consequences of any downtime or unavailability of the Services (including disaster recovery); and 

(vii)       Use the Service for lawful purposes only, and ensure that the Customer complies with any Intellectual Property rights, privacy or other laws relating to the Customer’s use of the Service.

(b)        Spectrum shall promptly notify the Customer in writing if Spectrum becomes aware of any actual or potential breach of the Service Contract.  The Customer shall be responsible for policing the use of the Service by its Users, and ensuring that Users comply with the Service Contract.

(c)        The Customer shall not use the Service in excess of, or contrary to, any usage and capacity limits stated in the Service Contract.

14.  SERVICE LEVELS

The Service Levels (if any) shall be as agreed between the parties in the Service Contract, including (if applicable) a Service Level Agreement.  A Service Level Agreement (if agreed by the parties) is not a separate agreement or contract, but instead will form part of the Statement of Work included in a Service Contract.

15.  Disengagement Upon Termination or expiry

(a)        Unless otherwise agreed in writing by the parties, the Disengagement Plan is as follows:

(i)          During the Disengagement Period, provided that the Customer has fully complied with the Service Contract, the Customer may require Spectrum to provide a reduced level of Service in which case the relevant terms of the Service Contract shall continue to apply to the reduced Service.

(ii)         Spectrum shall continue to deliver the Service as required by the Customer, and the Customer shall continue to pay for the Service on the same basis as prior to the Disengagement Period;

(iii)        The Customer shall pay any fees and costs reasonably incurred by Spectrum in bringing the Service Contract to an end, including migration assistance, and Spectrum can require the Customer to make payment for Spectrum’s disengagement services in advance of undertaking those services;

(iv)        The Customer shall return all Spectrum Equipment and any other Spectrum property; 

(v)         Unless otherwise agreed, Spectrum shall delete all Customer Data from the Spectrum System; and

(vi)        Spectrum shall not be responsible for reformatting the Customer Data to meet any new service provider requirements, unless agreed (in Spectrum’s absolute discretion).

(b)        Except as provided above, upon termination of the Service Contract (for any reason), the Customer shall:

(i)          Immediately cease access and/or use of the Service;

(ii)         Where applicable, use all practicable efforts to remove and erase any Software supplied by Spectrum as part of the Service from the Customer System; and

(iii)        On written request from Spectrum, provide written certificate of its compliance with this sub-clause.


 

Schedule 2: Equipment Terms and Conditions

These terms and conditions shall apply to the procurement and/or supply of equipment by Spectrum, and shall form part of the Service Contract between the parties.

1.     DEFINITIONS

(a)        In this Schedule:

Delivery Date means the date or period for delivery of the Hardware as specified in the Statement of Work.

Hardware means the physical computer, telecommunications or other equipment supplied by Spectrum (including any accompanying software).

Price means the price of the Hardware as specified in a Statement of Work.  Unless otherwise specified, the price excludes GST and Tax.

Security Interest has the meaning set out in section 17 of the Personal Properties Securities Act 1999.

Site means the location specified by the parties in the Statement of Work.

(b)        Capitalised words not listed in (a) above adopt the definitions for those words used in the Standard Terms and Conditions.

2.     SERVICES

2.1.      Unless otherwise agreed, the Services do not include any obligation for Spectrum to provide support and/or maintenance services, nor any obligation for Spectrum to transfer or load Customer Data to the Hardware.

2.2.      The Customer acknowledges that the performance and capabilities of the Hardware is subject to adequate technical know-how and training, as well as the proper maintenance of the Hardware, including installing regular updates where applicable.

2.3.      Where any software is bundled with the Hardware, the Customer agrees to comply with the terms and conditions of the manufacturer (or other third party supplier) for use of the software and it relies solely on any third party supplier’s warranties.

3.          HARDWARE LEASING

3.1.      Where Spectrum makes Spectrum-owned Hardware available to the Customer which is to be physically hosted by the Customer, or otherwise held in the Customer’s control, the provisions of this clause 3 shall apply to each item of Hardware.

3.2.      Spectrum shall provide, and the Customer shall accept, the Hardware for the Term.

3.3.      Spectrum shall retain ownership (and title) of the Hardware, notwithstanding the delivery to or possession of the Hardware by the Customer.  The Customer shall have rights in the Hardware only as a bailee and that it may only use the Hardware in accordance with Spectrum’s directions notified to the Customer from time to time.

3.4.      The Customer acknowledges that Spectrum holds a Security Interest in the Hardware and its proceeds and that Security Interest shall remain until the Hardware has been returned to Spectrum and all amounts payable by the Customer have been paid.  

3.5.      The Customer shall not, without Spectrum’s prior written consent, agree, attempt, offer or purport to sell, assign, sublet, lend, pledge, mortgage, bail, let or hire, transfer, grant any Security Interest in, assert rights in, relocate or otherwise deal with the Hardware without Spectrum’s prior written consent.

3.6.      The Customer shall immediately return the Hardware to Spectrum upon request and, should the Customer fail to do so, Spectrum may enter upon any land or premises where the Hardware may be situated and retake possession of the Hardware.

3.7.      The Customer shall:

(a)        Keep the Hardware in a safe place and take all reasonable care to protect the Hardware against unauthorised access or any form of seizure by a third party; and

(b)        Provide Spectrum with prompt notice of any accident or defect in the Hardware which the Customer may be aware.

3.8.      Where Spectrum makes available to the Customer an administrative interface for accessing and using the Hardware, the Customer shall follow all reasonable directions and instructions issued by Spectrum from time to time and shall not otherwise interfere, reconfigure, alter, modify or otherwise tamper with the Hardware without Spectrum’s prior written approval.

3.9.      The Customer shall provide (or procure) Spectrum (including its employees and contractors) such access as Spectrum reasonably requests on reasonable notice to allow Spectrum to:

(a)   Inspect the condition of the Hardware; and

(b)   Manage and/or maintain the Hardware.   

3.10.   Notwithstanding clause 3.9, the Customer acknowledges and agrees that there may be instances where Spectrum requires urgent access to the Hardware and is unable to give reasonable notice, including, without limitation, where:

(a)        Access is necessary to safeguard the provision of the Services and the integrity of the Service, the Spectrum Equipment or the Spectrum System;

(b)        The Services or Spectrum Equipment fail or require urgent modification or maintenance; or

(c)         Security situations (for example a DoS attack on a server) threaten the stability of the Spectrum System.

3.11.   All repairs, inspections and maintenance shall be carried out by Spectrum with the least possible interruption or inconvenience to the Customer.

3.12.   If, in Spectrum’s reasonable opinion, the Customer is responsible for any damage to the Hardware, then the repairs shall be carried out at the Customer’s expense, and any monies expended by Spectrum in executing the repairs shall be payable by the Customer upon demand.

3.13.   If the Customer configures, programs, alters or otherwise operates (in any way) the Hardware, the Customer shall ensure that:

(a)        The Customer’s employees, contractors or agents have undergone appropriate training and are adequately qualified for maintaining and operating the Hardware;

(b)        The Hardware is used solely for the purposes intended by its manufacturer and in accordance with the manufacturer’s and Spectrum’s instructions; and

(c)         The Hardware is properly serviced and maintained in:

                              i.           Good physical and operating condition;

                             ii.           Accordance with Spectrum’s minimum requirements; and

                           iii.           Any and all manufacturer’s recommendations and specifications.

3.14.   Upon termination or expiry of a Service Contract for the supply of Hardware as a service, the Customer shall promptly return all Hardware supplied by Spectrum, or otherwise provide such access as is reasonably necessary to allow Spectrum to uninstall and collect the Hardware.

4.          SALE OF HARDWARE

4.1.      The Customer shall pay the Price to Spectrum in the manner specified in the Statement of Work.

4.2.      Unless otherwise agreed in writing, title in the Hardware shall pass to the Customer upon full payment of the Price.

4.3.      Spectrum may substitute the Hardware (or any component of the Hardware) prior to delivery without consultation with the Customer, and may in any other respect modify the Hardware if, in the reasonable opinion of Spectrum, such substitution or modification will not:

(a)        Adversely affect the performance or capacity of the Hardware;

(b)        Alter the configuration of the Hardware in any material respect; or

(c)         Otherwise materially affect the obligations of Spectrum or prejudice the rights of the Customer under a Service Contract.

4.4.      If a substitution or modification is made under clause 4.3, Spectrum shall notify the Customer on or prior to delivery.

4.5.      Spectrum shall use reasonable endeavours to deliver the Hardware to the Site on the Delivery Date during normal business hours. If the Customer requests that the Delivery Date be postponed or advanced, Spectrum shall use its reasonable endeavours to re-schedule delivery accordingly, but shall otherwise be under no obligation to comply with the Customer’s request.

4.6.      Risk of loss or damage to the Hardware passes to the Customer upon delivery of the Hardware to the Site.

4.7.      Unless otherwise agreed, the Price does not include a training fee.

5.          INSURANCE

5.1.      Subject to clause 5.2, the Customer shall insure and keep all Hardware insured at no less than the full (as-new) replacement cost of the Hardware. All such insurances shall be effected in the name of Spectrum and the Customer, and at the Customer’s expense.  The Customer shall provide copies of all policies of insurance and receipts for insurance premiums on request by Spectrum.  If the Customer fails in its obligation to insure and maintain insurance cover for the Hardware, Spectrum may effect or keep the insurance policies on foot, either in the name of Spectrum or in the name of Spectrum and the Customer, and Spectrum shall be entitled to reimbursed by the Customer for all monies expended by Spectrum in effecting or maintaining any such insurance policy.

5.2.      For all Hardware purchased by the Customer, the obligation to keep and maintain that Hardware insured under clause 5.1 shall only exist for the period between the delivery of the Hardware to the Site and the passing of title pursuant to clause 4.2.

5.3.      The Customer agrees not to do any act or thing which might in any way invalidate or prejudice any such insurance or Spectrum’s interest in such insurance.  The Customer shall notify Spectrum immediately in writing of any event which leads or might lead to a claim for compensation or a claim under any insurance policy and shall comply with the instructions of Spectrum in connection with any such claim.

5.4.      Spectrum may receive any apply at its discretion in or towards repair or replacement of the Hardware, or payment of the amount payable to Spectrum pursuant to the Service Contract, all money payable to the Customer or Spectrum by any insurer under any policy of insurance or by any other person in respect of damage to or loss of the Equipment, and the Customer appoints Spectrum as the Customer’s attorney to make, enforce, settle or comprise any claim for loss of or damage to the Hardware (whether under a policy of insurance or otherwise) and to demand, sue for, recover, receive and give discharges and receipts for all money payable as a result.  If, notwithstanding the above, any money received on account of any such claim comes into the hands of the Customer before a final discharge of the Customer for its obligations under the Service Contract, such money shall be held on trust for Spectrum and shall be payable to Spectrum on demand.  To the extent that such insurance proceeds may be insufficient to pay the cost of repair or replacement of the Hardware, the Customer shall be liable to pay any such deficiency.  

 


 

Schedule 3 – Consulting Services Terms and Conditions

These terms and conditions shall apply to the supply of services (for example, implementation services) by Spectrum, and shall form part of the Service Contract between the parties.

1.          DEFINITIONS

(a)        In this Schedule:

Consulting Services may include, without limitation, any of the following services:

(i)          Project management services;

(ii)         Consulting and advisory services;

(iii)        Management services;

(iv)        Installation services; and

(v)         Integration services.

(b)        Capitalised words not listed in (a) above adopt the definitions for those words used in the Standard Terms and Conditions.

2.          SERVICES

(a)        Spectrum shall provide the Consulting Services as specified in a Statement of Work for the Term.

(b)        Where the Consulting Services are requested without a written Statement of Work, the Consulting Services shall be provided on Spectrum’s Standard Terms and Conditions which, together with this Schedule, shall constitute a Service Contract for the provision of the Consulting Services.

(c)        Unless otherwise agreed, the Consulting Services will be charged on an hourly basis in accordance with Spectrum’s current commercial pricing.

(d)        Subject to otherwise complying with its obligations under the Service Contract, Spectrum shall exercise its independent discretion as to the most appropriate and effective manner of providing the Consulting Services and of satisfying the Customer’s expectations of those Services.

(e)        In providing the Consulting Services, Spectrum shall comply with all reasonable directions given by the Customer as may be lawfully given from time to time as to the nature and scope of the Consulting Services to be provided, provided that this shall not affect Spectrum’s right to exercise its own judgment and utilise its own skills as it considers appropriate in order to comply with the Customer’s directions or otherwise to discharge its obligations under the Service Contract.

(f)         Spectrum shall supply the Consulting Services in accordance with the Service Contract, including:

(i)          Any minimum days or hours per week specified in the Service Contract;

(ii)         At the locations, including the Customer’s place of business, specified in the Service Contract; and

(iii)        Remotely, as reasonably available on other days.

(g)        Spectrum does not warrant that it will be capable of attending the Customer’s premises or provide the Consultancy Services at specific times requested by the Customer during the Terms, except to the extent agreed in a Statement of Work.

3.          INDEPENDENT STATUS

It is understood and agreed that Spectrum’s representative(s) (theConsultant”) is not an agent or contractor of the Customer, and is not authorised to act on behalf of the Customer unless otherwise specified by the Customer in a Statement of Work.  Spectrum agrees that the Consultant will not to hold himself or herself out as, or give any person any reason to believe that he/she is, an employee, agent, or partner of the Customer.

4.     RECORDS

Spectrum agrees to keep and maintain, for the Term, records of all work performed relating to the Consulting Services (in the form of notes, sketches, drawings and in any other form that may be specified in the Service Contract or otherwise agreed between the parties).

 


 

Schedule 4 – Support Terms and Conditions

These terms and conditions shall apply to the provision of support services by Spectrum, and shall form part of the Service Contract between the parties.

1.     DEFINITIONS

(a)        In this Schedule:

Maintained Equipment means the equipment and hardware that Spectrum has agreed to support, as specified in the Statement of Work.

Supported Software means the software that Spectrum has agreed to support, as specified in the Statement of Work.

Supported Systems means those parts of the Customer System (excluding equipment, hardware and software) that Spectrum has agreed to support, as specified in the Statement of Work.

(b)        Capitalised words not listed in (a) above adopt the definitions for those words used in the Standard Terms and Conditions.

2.     SUPPORT OVERVIEW

(a)        Spectrum shall provide the Services as specified in a Statement of Work for the Term.

(b)        Subject to the Statement of Work, Spectrum shall:

(a)         Provide support Services in response to a report by the Customer of a suspected malfunction, defect or error in the Supported Systems, Supported Software or the Maintained Equipment; and

(b)         Provide updates and new releases for the Supported Software, as further specified in this Schedule.

12.1     Spectrum shall provide Service Levels as detailed in the Statement of Work. 

3.     SUPPORT SERVICES

Spectrum will provide Support Services as specified in the Statement of Work.  At Spectrum’s election, support Services shall be provided by:

(a)        Telephone advice;

(b)        Maintenance of Maintained Equipment to restore the Equipment to good working order, including inspection, repairs, servicing, adjustment and replacement of defective parts;

(c)        On line support, including online correction of defects in Supported Software;

(d)        On-site attendances, together with any subsequent advice, programming or re-configuration as Spectrum considers necessary; or

(e)        Such services as Spectrum considers are more effectively provided off-site.

4.     SERVICE DESK

Spectrum will provide an operational service desk on a 24 hours per day/7 days per week / 365 days per year basis.  The Customer shall ensure that all requests for Support Services are made to Spectrum’s service desk, using the designated support telephone number or email address supplied by Spectrum.

5.     RESPONSE TIMES

Spectrum will use its best endeavours to respond to support requests according to the Service Levels detailed in the Statement of Work.

6.     CUSTOMER’S OBLIGATIONS

In order for Spectrum to provide support Services, the Customer shall (in addition to the Customer’s obligations under the standard terms and conditions, including clause 4):

(a)        Immediately after making a request for support Services, provide Spectrum with a documented example of the error or defect (as applicable) for which support is requested;

(b)        Provide Spectrum upon request with a listing of output or any other data which Spectrum requires in order to reproduce operating conditions similar to those present when the error or defect occurred; and

(c)        Not remove any Maintained Equipment from site, or allow any third party to repair, attempt to repair or alter the Maintained Equipment in any way, without Spectrum’s prior written consent.

7.     SOFTWARE SUPPORT

(a)        Spectrum shall provide such error or defect services as it determines to be necessary in order to rectify errors or defects reported by the Customer in the Supported Software.

(b)        Subject to the Statement of Work, Spectrum shall inform the Customer of any updates or new releases to the Supported Software as they become available.

(c)        If the Customer accepts an update or new release, the Customer may request Spectrum to install the update or new release.  Any cost for the update or new release will be charged to the Customer.

(d)        If the Customer decides not to install an update or new release to any Supported Software, Spectrum may decline to continue Support Services for Supported Software.

8.     EXCLUSIONS

(a)        Unless otherwise agreed in a Statement of Work, the support Services do not include:

(i)          Repair of damage arising from changes, alterations, additions or modifications effected by a person other than Spectrum;

(ii)         Repair of damage arising from the act, error, fault, neglect, misuse or omission of the Customer or its employees, agents, contractors or invitees, or any other person whether or not that person is under the control, direction or authority of the Customer;

(iii)        Rectification of hazardous conditions which pose a threat to the safety of Spectrum, its personnel or its equipment;

(iv)        Repair of damage arising from the Customer’s failure to comply with the Service Contract or any operating instructions supplied by Spectrum; or

(v)         Replacement of equipment other than defective parts (all equipment supplies by Spectrum are covered by Schedule 2: Equipment Terms and Conditions).

(b)        Unless otherwise agreed in a Statement of Work, the support Services do not include the following in respect of Maintained Equipment:

(i)          Electrical, air conditioning or supply, building or environmental work external to the Maintained Equipment;

(ii)         Effecting changes or alterations to the configuration or specifications of the Maintained Equipment;

(iii)        Re-installation, moving or removing of equipment, devices or attachments;

(iv)        Repair of damage arising from the re-installation, moving or removing of, or alteration of the Maintained Equipment by a person other than Spectrum;

(v)         Repair of damage caused by the failure of electrical power, air conditioning or supply, humidity control or any other environmental factor;

(vi)        Repair of damage caused by the operation of the Maintained Equipment other than in accordance with the recommended operating procedures, directions and recommendations of the manufacturer or Spectrum;

(vii)       Furnishing or maintenance of accessories, attachments, supplies, consumables or other such items associated with the Maintained Equipment;

(viii)     Cleaning, painting or re-finishing the whole or any part of the Maintained Equipment; or

(ix)        Maintenance which is determined by Spectrum to not be related to the Maintained Equipment.

(c)        Unless otherwise agreed in a Statement of Work, the support Services in respect of Software Support do not include correcting or rectifying defects or errors caused by:

(i)          Operation of the Supported Software in a manner other than that currently specified by Spectrum or the Third Party Supplier;

(ii)         Modification, revision, variation, translation or alteration of the Supported Software not authorised by Spectrum or the Third Party Supplier;

(iii)        The maintenance of the Supported Software by a person not authorised by Spectrum;

(iv)        In whole or part, by the use of computer programs other than the Supported Software;

(v)         The failure of the Customer to provide suitably qualified and adequately trained staff for the operation of the Supported Software;

(vi)        Operator errors;

(vii)       Incorrect use; or

(viii)     Equipment faults;

9.     FAULT REPORTING

(a)        The Customer is responsible for notifying Spectrum of a fault or defect in the Supported System, Supported Software or Maintained Equipment as quickly as possible.

(b)        Spectrum is responsible for trouble-shooting the source of the fault or defect, and where the fault:

(i)          is within the Spectrum System through no fault of the Customer, rectifying the fault; or

(ii)         is with the Data Centre or other similar third party provider through no fault of the Customer, escalating the fault to the appropriate provider; or

(iii)        is due to the fault of the Customer, advising the Customer and, if requested, providing Spectrum’s reasonable estimate of the likely cost to fix the fault;

in a timely manner.

(c)        Regardless of (b), if Spectrum investigates and/or rectifies the fault and reasonably determines, in Spectrum’s opinion, that the fault or defect was not the responsibility of Spectrum or a Third Party Supplier arranged by Spectrum, then the Customer shall be liable to pay Spectrum’s charges and costs at its then prevailing rates for the work involved.

10.  SERVICE LEVELS

The Service Levels (if any) shall be as agreed between the parties in the Service Contract, including (if applicable) a Service Level Agreement.  A Service Level Agreement (if agreed by the parties) is not a separate agreement or contract, but instead will form part of the Statement of Work included in a Service Contract.


 

Schedule 5 – Subscription Terms and Conditions

These terms and conditions shall apply to the subscription services supplied by Spectrum, and shall form part of the Service Contract between the parties.

1.     DEFINITIONS

(a)        In this Schedule:

Subscription Period” means the period during which you may use the Service as recorded in the Statement of Work, and includes any extension agreed by Us in writing or that occurs under this Schedule;

(b)        Capitalised words not listed in (a) above adopt the definitions for those words used in the Standard Terms and Conditions.

2.     SERVICES

2.1.      We grant You a non-exclusive licence to use the Service on the terms set out in the Statement of Work and Service Contract.  Title, ownership, rights, and Intellectual Property rights in and to the Service shall remain with Us and/or Our licensors.  You may:

(a)        Install, access and use the Service on the Customer System, for the number of Users, and for the duration as described in the Statement of Work; and

(b)        Copy the Service for back-up and archival purposes only, provided any copy must contain all of the original Service’s proprietary notices.

3.     SUBSCRIPTION PERIOD

3.1.      At the expiry of the Subscription Period, the Subscription Period will automatically extend for successive periods of duration equal to that of the original Subscription Period, unless either party gives notice to the other in writing prior to the expiry date.

3.2.      At the end of the Subscription Period You must stop using the Service, and the Service shall cease to operate.

4.     SUBSCRIPTION SERVICE CHARGES

4.1       You must pay the Service Charges as described in the Statement of Work.  Unless otherwise agreed by Us in writing:

(a)        Installation fees are payable before or at the commencement of the Subscription Period; and

(b)        Subscription fees are payable periodically in advance, as specified in the Statement of Work.

4.2       Fees for each renewal term may increase to reflect Spectrum’s current pricing, unless We provide You with notice of different pricing at least 30 Business Days prior to the applicable renewal date.

4.3       You acknowledge that Our Service Charges are set based on Your commitment to subscribe to the Service for specified Subscription Period, and that We rely on such committed Service income. Accordingly, you agree that if the Service is terminated by You before the end of the Subscription Period, to compensate Us for Our loss arising from that termination (this loss acknowledged by You) You must immediately pay Us the balance of the Service Charges that would be payable to the end of the Subscription Period.  No portion of fees paid in advance is refundable.

5.     SERVICE UPDATES

5.1.      You will be entitled to obtain updates for the Service for the Term of the Service Contract, if and as they are released. Updates consist of new releases of the Service which provide functional enhancements and error corrections.  All such updates shall be deemed to be part of the Service and shall be subject to the terms and conditions of the Service Contract.  Service updates include release updates and version upgrades, but do not include upgrades from one Service product to another.  We may vary the technical functionality and operational specification of the Service at any time without notice to you, provided that this does not affect the Service in a materially adverse manner.

6.     SUPPORT

6.1.      We shall, at Your request, provide you with support for the Service as follows:

(a)        Support will be provided by Us or by another designated party certified by Us.  Support may include (at our discretion) telephone and/or email help desk support, remote diagnostics and assistance (if You provide the necessary communications access and infrastructure as specified by Us to facilitate this), emergency bug fixes, and other such workarounds to ensure the Service conforms to the agreed functionality and technical specifications.  Subject to the express contents of the Statement of Work, We shall have no obligation to provide on-site attendances or the provision of personnel, contractors or other resources.

(b)        Support is limited to issues that, in Our sole opinion and discretion, arise directly from defects in the Service, and for the avoidance of doubt, does not include the installation of software updates.

(c)         Where a service or request does not qualify for support under this Schedule, we may, by mutual agreement, provide the requested service(s) or request(s) under a separate Statement of Work (Service Contract) on the terms and rates therein.