M2M One Standard Form of Agreement

STANDARD FORM OF AGREEMENT

M2M One NZ Ltd, 29 Rennie Drive, Auckland 2022 (M2M One)


 

  1.          ABOUT THIS AGREEMENT

Please read this Standard Form of Agreement carefully. It applies to:

1.1          your use of the Services

1.2          any Goods or any quotations for or offers to supply Goods; and/or

1.3          any Other Services

provided to you by M2M One NZ Ltd. trading as M2M One  (in this Agreement referred to as “our”, “we”, “us” or “M2M One”).

  1.          DEFINITIONS AND INTERPRETATION

In this Agreement:

2.1          “Agreement” means this agreement for the provision of the Supplies by us to you, which includes this Standard Form of Agreement, the M2M One Services Arrangement and related Schedules, and your Order(s) for Service.

In the event of any conflict or inconsistency between any part of:

  • each relevant M2M One Services Agreement;
  • each Order for Service; and
  • this Standard Form of Agreement;

then the material mentioned in any one of clauses 2.1 above has precedence over material mentioned in a subsequent clause, to the extent of any conflict or inconsistency;

2.2          “Anniversary Date” means the recurring due date on which you are required to pay the Charges for any ongoing Supplies, which will occur each month, quarter, year or other period as provided on each applicable Order, each applicable M2M One Services Agreement or in each applicable Service Schedule, commencing on the Service Commencement Date.  We may change your Anniversary Date from time to time, at our discretion, in order to align this date with the renewal dates of your active Services. Where a change to your Anniversary Date is made you may receive two distinct invoices in the period when the change is implemented;

2.3          “Charges” means the charges payable by you to us for the Supplies (as specified on the Order or other reasonable charges introduced by us from time to time (including without limitation, credit card processing charges and charges incurred for the provision of paper invoices by post or by fax));

2.4          “Early Termination Charges” means the Charges that are specified as “Early Termination Charges” in the M2M One Services Agreement;

2.5          “Equipment” means M2M One Equipment and non M2M One Equipment;

2.6          “Fault” means a failure in the normal operation of the Services;

2.7          “Goods” means any goods we supply to you (including goods supplied in connection with any Services);

2.8          “GST” has the same meaning as it does in the 1985 GST definition and applies to the latest legal law defined and agreed.

2.9          “M2M One Help Desk” means the contact point for Faults, which you may contact by emailing to the address specified in an applicable Service Schedule;

2.10       “Material Breach” means a material breach of this Agreement which includes, without limitation, any breach due to your failure to make any payment(s) on time as required pursuant to this Agreement and/or any breach due to your failure to comply with any of our Policies;

2.11       “Order” means each order form completed by you (either hard copy or soft copy or via our Website) and sent to us requesting the Services;

2.12       “Other Services” means any other services in connection with Goods and/or Services (including monitoring, installation and maintenance services);

2.13       “Privacy Policy” means our Policy which specifies our rights and requirements in relation to our collection, use and disclosure of your personal information (attached to and forming part of this Agreement);

2.14       “M2M One Services Agreement ” means the services agreement including specific terms in relation to you and a description of the Services to be offered as agreed by the parties and evidenced in writing.   This M2M One Services Agreement is applicable to each Service for which we accept your Order and may include details of the Service, pricing, term, a service level agreement, and/or special conditions applicable to that Service;

2.15       “Services” means each M2M One Service in respect of which we have accepted your Order, or in respect of which this Agreement has been executed by us and you;

2.16       “Service Commencement Date” refers to the first to occur of either the specific date that a Service or Other Service (as applicable) was activated or the supply of the Services or Other Services (as applicable) began;

2.17       “Software” means software we provide to you for your use in connection with the Services (if any);

2.18       “Standard Form of Agreement” means this document entitled “Standard Form of Agreement” and includes our Policies;

2.19       “Supplies” means the Services, Goods and/or Other Services, as appropriate;

2.20       “Supply Rollover Date” means the monthly or annual anniversary of the day of month or year on which the Supply was initially deemed chargeable by us.

2.21       “Telecommunications Company” means any licensed carrier or carriage service provider as defined by the Telecommunications Act 1997 other than M2M One;

2.22       “Term” means, in respect of a Service, the contract period specified in the Order for that Service, or the contract period specified in the M2M One Services Agreement;

2.23       “TP Supplier” means a third party supplier which supplies us with goods and/or services (including wholesale telecommunications services) that are necessary for our provision of the Supplies to you (including a supplier which provides us with Goods for re-supply to you);

2.24       “Website” means the M2M One website located at https://www.m2mone.co.nz/;

2.25       a reference to a person includes a partnership and a body, whether corporate or otherwise;

2.26       monetary references are references to New Zealand currency;

2.27       we can rely on the authority of any of your employees who advise us they have the authority to give your consent as needed under this Agreement, provided that we act in good faith; and

2.28       words in the singular number include the plural and vice versa.

  1.          ORDER AND TERM OF AGREEMENT

3.1          You may apply for a Service by any method approved by us.

3.2          If you provide us with an Order for a Service we will assess your Order. We may refuse your Order for any reason and without being obliged to provide any reason to you.

3.3          If your Order is accepted, we will take steps to provide you with the Service, subject to the terms of this Agreement.

3.4          Upon our acceptance of your Order, or, if applicable, execution of this Agreement by us and you, a contract is formed and you become bound by this Agreement and the Term and charges associated with the Service. The contract between us remains in force until it is terminated in accordance with this Agreement.

3.5          There may be a time delay between us accepting your Order, or, if applicable, execution of this Agreement by us and you, and providing you with the Service. We are not and will not be responsible for any delays associated with provision of a Service, nor any inability by us to provide the Service to you.

3.6          This Agreement commences on the Service Commencement Date for the first Service you acquire from us and will continue until the expiration or termination of the Term in respect of the last Service you acquire from us, unless terminated earlier in accordance with this Agreement.  On the same date

3.7          Once you have entered into this Agreement it will be read as part of your M2M One Services Agreement.   All additional Goods, Services or Other Services that you acquire from us are acquired and supplied pursuant to this Agreement and the M2M One Services Agreement.

  1.         NOTICES

4.1          Notices under this Agreement must be sent by prepaid ordinary post, by facsimile or by electronic mail and will be deemed given:

4.1.1      in the case of posting, three days after dispatch; or

4.1.2      in the case of facsimile and electronic mail, upon receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission.

4.2          You must provide notice either in writing, or by using an online cancellation request facility provided on the M2M One web site, of your intention to cancel any of the Supplies under Clause 16 to our accounts department.

  1.         THE SUPPLIES

5.1          We will use our reasonable commercial endeavours to provide you with the Supplies you request, in accordance with this Agreement.

5.2          It is not our responsibility to provide training in the use of the Supplies.

5.3          We will make all reasonable efforts to ensure continuity of the Services, but we make no guarantee that the Services will be either uninterrupted or error-free.

5.4          While we endeavour to take reasonable care with information that you deposit with us we cannot and do not guarantee that all such information will reach its intended destination (including electronic mail) inside or outside our network.

5.5       You acknowledge that we do not and cannot in any way supervise, edit or control the content and form of any information or data accessed through the Supplies and we shall not be held responsible in any way for any content or information accessed via the Supplies.

5.6       Any transmission speeds indicated refer to the maximum theoretical speeds achievable with the Supplies under ideal conditions, and you acknowledge that the actual achieved speeds may be substantially different from the theoretical speeds. You acknowledge and agree that the maximum theoretical speed may be reduced by external factors

5.7          Any general statements, maps or other indicators of service availability are only a guide and you must not rely upon such statements, maps or other indicators as a commitment to provide the Services to a particular physical location.

5.8          The Supplies are provided on an ‘as-is’ basis.

  1.         EQUIPMENT AND SOFTWARE

6.1          You must comply with the terms and conditions of the Software licence(s) which apply to the use of any Software.

6.2          If we consider that it is necessary in provisioning a Service, on request by us you must arrange for any non M2M One Equipment to be supplied to us for us to approve the non M2M One Equipment as suitable to allow us to comply with our obligations under this Agreement and with our suppliers

6.3          You agree that you will permit us (or any person nominated by us) to modify any equipment used in the provision of the Services if we consider it necessary to do so.

  1.         GOODS

If you order Goods from us:

7.1          subject to Clause 7.2, Clause 20 will apply in respect of those Goods;

7.2       the TP Supplier of the Goods may provide a warranty for those Goods, in which case we may give notice of the terms of that warranty in the applicable Service Schedule and/or in a separate document accompanying the Goods;

7.3          if you consider that the TP Supplier has not complied with its warranty obligations to us and notify us accordingly, then subject to your compliance with Clause 7.4 we will take reasonable steps to enforce the warranty against the TP Supplier and to pass the benefit to you;

7.4       it will be your responsibility to pursue any direct claim you may have at law against a TP Supplier, and you must pursue any such claim to the maximum extent possible prior to requiring us to take steps to enforce the warranty against that TP Supplier under this Clause;

7.5          it is your responsibility to review the specifications and descriptions of the Goods contained in any order documentation and to ensure that these are accurate, and you will be deemed to have accepted these matters if you do not notify us otherwise before you pay for the Goods or we order the Goods (whichever occurs first), subject to any other conditions set out in the order documentation (which will prevail to the extent of any inconsistency with this Agreement);

7.6       we may adjust the price of the Goods at any time before delivery to you to reflect any change in the costs to us of the Goods due to any factor beyond our reasonable control;

7.7          risk of damage to or loss of the Goods shall pass to you once the Goods are delivered to you;

7.8          notwithstanding Clause 7.7, if we have not received payment for the Goods the property and ownership of the Goods shall not pass to you until we have received payment in full for all indebtedness including the price of the Goods;

7.9          until such time as title to the Goods passes to you in accordance with Clause 7.8:

  • you must hold the Goods as our bailee and must keep the Goods separate from all other goods;
  • you must keep the Goods properly stored, protected and identified as our property;
  • we may at any time require you to deliver up the unpaid Goods to us and, if you fail to do so immediately, we may enter your premises or any third party’s premises where the Goods are located and repossess the Goods;
  • you agree that we are authorised to enter any premises where the Goods are located and you will indemnify us in accordance with Clause 19 against all losses of whatever nature suffered by us as a result of recovering or attempting to recover the Goods.
  1.         YOUR OBLIGATIONS TO US

8.1          You must provide us with all information that we may reasonably require for the purposes of this Agreement. All information must be accurate, truthful and correct. Without limitation, you warrant that you are not a minor.

8.2          If you and one or more others are the customer for the Services, each of you is jointly and individually responsible for all charges and all other obligations relating to the Services.

8.3          You acknowledge that any material that you make available using the Services is your own responsibility and that we accept no liability for any such material. You indemnify us against any liability in relation to this material. You also acknowledge that we do not vet or approve any information or material available through the Services.

  1.         ACCESS INFORMATION

9.1          We will provide you with any access information required to use the Services that we deem reasonably necessary.

9.2          You will:

  • subject to disclosure permitted by us, maintain the secrecy and confidentiality of all access information required by you to access the Services, and not disclose to any other person, corporation, entity or organisation any access information, whether in use or not, nor any other confidential information relating to the Services; and
  • notify us immediately if your username and password are lost, or you think someone else is using them.

9.3          You will be liable for all Charges resulting from use of the Services accessed through your access information, whether authorised by you or not.

  1.         SERVICE LEVELS

10.2       You must report the details of a suspected Fault to the M2M One Help Desk as soon as possible after you become aware of the suspected Fault.

10.3       You may report a suspected Fault to us 24 hours per day

10.4       When reporting a suspected Fault to us, you must provide the following information to us:

  • Service details which identify the affected Service to such particularity as requested by us (including the location of the affected Service); and
  • contact details, including your name, your contact point(s), the Site Contact (if Site attendance is required), contacts at both ends of the Service (where appropriate) and details of the Fault systems.
  1.         INVESTIGATION OF FAULTS BY M2M ONE

11.1       We will analyse the cause of the suspected Fault and determine if the suspected Fault is in fact a Fault.

11.2       We may be unable to provide Fault restoration under this Agreement where the fault is in a network owned or maintained by any person other than us.

11.3       On completion of Service restoration activities, we will contact you to confirm that the Service has been completely and satisfactorily restored.

  1.         SERVICE PERFORMANCE

12.1       We will use reasonable endeavours to meet any agreed response target.

12.2       We will use our reasonable endeavours to meet any agreed availability target.

  1.         POLICIES

You agree that you will comply with our Policies in respect of any Services you acquire from us, including without limitation our Privacy Policy. You acknowledge that our Policies form part of this Standard Form of Agreement.

  1.         SERVICE SUSPENSION

14.1       We reserve the right to immediately and without notice (and without prejudice to our rights of termination under Clause 15) suspend your access to the Services in our discretion if we:

  • reasonably consider that you have Materially Breached this Agreement;
  • reasonably suspect that your use of the Services breaches any state or federal law.

14.2       If we suspend your access to the Services under Clause 14.1, we may reactivate your access to the Services if we subsequently become satisfied that you are not in breach of any provision of this Agreement.

14.3       Notwithstanding any suspension of your access to the Services under this Clause, you will remain liable for our out-of-pocket costs and any third party costs incurred by us as a result of the suspension of your access to the Services under Clause 14.1 or in relation to our reconnection or resupply of the Services to you under Clause 14.2.

14.4       You are not entitled to a credit or refund for loss of access during any suspension period in accordance with Clause 14.1 or in the event that this Agreement is terminated in accordance with clause 14.5.

14.5       Without limiting the generality of any other Clause in this Agreement, we may terminate this Agreement immediately by notice in writing if we have suspended your access to the Services under Clause 14.1, and we have not reactivated your access to the Services within seven (7) days of this suspension.

  1.         TERMINATION BY US

15.1       Without limiting the generality of any other Clause in this Agreement, we may terminate this Agreement immediately by notice in writing if:

  • you are in Material Breach of this Agreement (including any Policy) and such breach is not remedied within seven (7) days of us notifying you;
  • you have provided us with false or misleading information or you have not provided us with any information that we have reasonably requested for the purposes of this Agreement;
  • your nominated payment method is refused or dishonoured, or you fail to pay the amount specified on any overdue notice as required by clause 18.5;
  • if you are a natural person, we discover or reasonably believe that you are a minor;
  • we believe you are about to or may become or are in jeopardy of becoming subject to any form of insolvency administration;
  • if you being a partnership, dissolve, threaten or resolve to dissolve or are in jeopardy of dissolving;
  • if you, being a natural person, die; or
  • you cease or threaten to cease conducting business in the normal manner,
  • in which case Clause 22.1 will apply.

15.2       We may terminate this Agreement (otherwise than under Clause 15.1) for any reason on thirty (30) days notice in writing to you (unless the applicable Service Schedule specifies a longer notice period, in which case that longer notice period must be provided), in which case Clauses 22.2 and 22.6 will apply.

  1.         CANCELLATION BY YOU

You may elect to terminate a Service at any time in accordance with Clause 4.2 subject to the following:

16.1       you must provide seven (7) days notice to us of the Service to be cancelled;

16.2       the cessation of the Services will be made as soon as practicable on or after your notified specific cessation date. In most cases this will be within seven (7) days of that date;

16.3       you will be liable for all outstanding debts incurred prior to termination for the current billing period;

16.4       you must pay the Early Termination Charges within a reasonable period, being a period not in excess of twenty-eight (28) days after the termination of this Agreement, if the Service is cancelled before the end of the Term; and

16.5       Clause 22.3 and 22.6 will apply.

  1.         AFTER TERMINATION

17.1       If this Agreement is terminated otherwise than for our breach, in addition to any other obligations set out in this Agreement that may apply (including without limitation clause 16.4), we may:

  • charge a reasonable sum for work performed and for which no sum has as yet been charged;
  • charge any and all amounts which any third party supplier has charged us in relation to the Service or the termination of the Service.  A reasonable administration fee may be also included in such charges passed on by M2M One;
  • be regarded as discharged from any further obligations under this Agreement; and
  • pursue any additional or alternative remedies provided by law.

17.2       Upon the expiration or termination of this Agreement for any reason, the provisions of Clauses 7, 15, 16, 17, 18, 20 and 22 shall remain in force in accordance with their respective terms.

17.3       Once this Agreement has been terminated or cancelled for any reason, we may delete all of your data from any storage media.

  1.         CHARGES

18.1       All quotations issued by us in respect of the Supplies, unless otherwise stated, are valid for thirty (30) days from date of issue and are subject to this Agreement.

18.2       We offer different fee structures for the provision of the Supplies and you are liable for the fees applicable to any Supplies you acquire, as specified in each Order and/or each applicable M2M One Services Agreement.

18.3       If you acquire ongoing Services from us, a regular invoice/statement notification will be delivered via electronic mail, postal mail, or fax. We can charge you a processing fee for invoices delivered to you by postal mail or fax. You may also contact us during our hours of operation to verify the current financial status of your account with us. An invoice presented by us shall be deemed to be a correct statement of all Charges contained in that invoice.

18.4       If you acquire any Other Services from us that are supplied on an ongoing basis, we may require that you pay for those Other Services periodically (in which case the provisions of Clause 18.3 will apply to those Other Services) or in full prior to supplying those Other Services to you. Each Order or M2M One Services Agreement and will set out the payment requirements for the Other Services.

18.5       All accounts must be paid by the due date specified on the invoice/statement. Any account that is outstanding beyond the due date is in default, and an overdue notice will be issued. If payments are not received by the date specified on the overdue notice, we will be entitled to suspend your access to the Services and/or the provision of the Other Services under Clause 14.1 until all outstanding monies are paid in full (and we may charge you an additional fee for any subsequent re-connection to the Services or resupply of the Goods) and may also:

  • terminate this Agreement (as set out in Clause 15.1); and/or
  • require you to pay us interest on any monies owing to us at a rate equivalent to the prime rate charged for bank overdrafts by our current bankers at that time, that interest to be computed from the date on which the relevant payment was due until all outstanding monies have been paid in full.

18.6       If we terminate this Agreement under Clause 15.1 as a result of your non-payment of any Charges:

  • we will be entitled to remove any Goods supplied to you to which we have title;
  • you consent to us entering the premises on which the items referred to in Clause
  • are stored or may be accessed or located, in order to enforce our rights to possess, use and sell those items;
  • we will set off any amounts we receive from the sale or use of these items against the amounts you owe to us under this Agreement; and
  • we will re-assign or re-transfer to you any items that remain after all amounts owed to us by you under this Agreement have been paid by you and/or set off by the sale or use of these items, in accordance with this Clause.

18.7       Service suspensions under Clause 18 will be promptly removed on receipt of full payment of all Charges owed to us under this Agreement.

18.8       If you wish to query any item you have been charged for, please do so within seven (7) days of our invoice. All non-disputed amounts must be paid in full within the period described in Clause 18.5.

18.9       Where you request us to invoice amounts owing under this Agreement to a nominated credit card:

  • you will operate the credit card within terms and credit limits set in order to pay your account in full;
  • you will give us the authority to complete and sign on behalf of yourself, all necessary forms and documents to facilitate payments from the relevant bank, or other financial institution;
  • you agree to remain liable to us for all amounts owing to your account consequently billed to your credit card until all amounts outstanding have been paid in full; and
  • we can charge you a credit card payment processing fee.

18.10    The amounts payable by you to us for, or in connection with, the Supplies supplied under this Agreement will include any GST payable. We will provide you with invoices in the form of tax invoices.

18.11    If the rate of GST changes after the date of this Agreement, we may adjust the amounts payable by you to us in respect of the Supplies to reflect that change in the rate of GST from the date the change is effective.

18.12    You are responsible for any collection fees (including legal fees and any other costs) incurred by us as a result of the collection of outstanding monies owed by you to us under this Agreement.

  1.         INDEMNITY

You release and indemnify us, our servants, agents and TP Suppliers from all liability arising in connection with the Supplies and/or any goods or services provided by our TP Suppliers (including all liability in connection with their provision or cancellation, as applicable). This indemnity includes (but is not limited to) an indemnity against all actions, claims and demands (including the cost of defending or settling any action, claim or demand) which may be instituted against us, as well as all expenses, penalties, fines (including those imposed by any regulatory or governmental body or under any statute), losses, damages and costs (on a solicitor and own client basis and whether incurred by or awarded against us) that we may sustain or incur as a result, whether directly or indirectly of:

19.1       any breach of this Agreement by you including but not limited to a breach in respect of which we elect to terminate this Agreement;

19.2       any use made by any person (including any minor) of the Services that are accessed through your access information (including loss of data, delays, non- deliveries, mis-deliveries, service interruptions, whether or not as a result of our negligence or our act or omission);

19.3       the negligence of you or your agent, employee or sub-contractor or of any other person for whose acts or omissions you are held liable;

19.4       any loss of or damage to any property, or injury to or death of any person, caused by any negligent act or omission or wilful misconduct of you or your officers and employees;

  1.         OUR LIABILITY

20.1       We make no express warranties to you except those expressly set out in this Agreement.

20.2       We do not exclude or limit the Order of any provision of any statute (including the Fair Trading Act 1986 and latest revisions to the law) where to do so would contravene that statute or cause any part of this Clause to be void.

20.3       We exclude:

  • from this Agreement all conditions, warranties and terms implied by statute or general law or custom except any implied condition or warranty the exclusion of which would contravene any statute or cause this Clause to be void (“Non Excludable Condition”);
  • all liability to you in contract for consequential or indirect damages arising out of or in connection with this Agreement even if we were aware they were possible or they were otherwise foreseeable including, without limitation, lost profits and damages suffered as a result of claims by any third person such as you or one of your customers; and
  • all liability to you in negligence for acts or omissions of us or our employees, agents or contractors arising out of and in connection with this Agreement.

20.4       Our liability to you for breach of any express provision of this Agreement or any Non Excludable Condition (except a Non Excludable Condition implied by section 69 of the Fair Trading Act 1986 or latest revisions) is limited at our option to one of supplying, replacing or repairing the Goods or supplying again the Services or Other Services in respect of which the breach occurred.

20.5       On request by you we will refund any amount paid by you for the Supplies in respect of which the breach occurred, rather than provide the remedy referred to above.

20.6       If you are a consumer, as defined under the Fair Trading Act 1986 or latest revisions, we do not exclude liability to you for breach of any Non Excludable Condition in respect of goods or services ordinarily acquired for personal, domestic or household use and consumption.

20.7       Subject to Clause 20.8, you warrant that you have not relied on any representation made by us which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by us (other than an applicable Service Schedule).

20.8       You acknowledge that to the extent we have made any representation which is not otherwise expressly stated in this Agreement, you have been provided with an opportunity to independently verify the accuracy of that representation.

  1.         VARIATIONS TO THE SUPPLIES, THE AGREEMENT OR OUR POLICIES

21.1       Subject to clauses 16.1 and 16.2 when requesting a change to your Supplies that are supplied on an ongoing basis (whether upgrading, downgrading, cancellation or otherwise), you must provide this request online (where available) or in writing. The request will be processed and actioned on the earliest date that is reasonably possible, having regard to when it will be technically and operationally feasible for us to action it. In most cases, changes to ongoing Supplies will become effective at the next Supply Rollover Date although we cannot guarantee this.

21.2       We may at any time in our discretion change this Agreement. However we will not make a variation that could reasonably be expected to adversely affect you without including a notice on, or with, your next invoice or statement, or sending a separate notice to you at least 3 business days before it takes effect, which:

  • is clearly identified as being about a variation to this Agreement;
  • summarises the effect of the variation; and
  • invites you to contact us for further information about the variation and its effects by visiting the Website.

21.3       You may obtain a copy of our current Standard Form of Agreement from our offices and/or our Website.

21.4       We may at any time in our discretion vary the available service plan(s) for and/or available feature(s) of the Service (or make available new alternative service plan(s) for the Service or new feature(s) of the Service). We will endeavour to notify you of such variations or additions in accordance with clause 4. For the avoidance of doubt we will have no other obligation to notify you of such variations and additions other than if we endeavour to notify you in accordance with clause 4. You acknowledge and agree that:

  • it is your sole responsibility to notify M2M One in accordance with clause 21.1 if you wish to vary the service plan and/or the features of the Services (including without limitation if you wish to change to a new service plan or receive new features of the Service offered by us) in response to the notification given by us under this clause;
  • should you not notify M2M One in accordance with this clause of your wish to expressly vary the service plan and/or the features of the Services then M2M One is under no obligation to vary the service plan and/or features of the Services provided to you and subject to clause 21.2, the service plan and/or the features of the Services will remain unchanged.
  1.         REFUND POLICY

Our refund policy is as follows:

22.1       if we terminate this Agreement under Clause 15.1, you will not be entitled to a refund in respect of the Supplies;

22.2       if we terminate this Agreement under Clause 15.2, subject to clause 22.6 we will provide you with a refund in respect of the Supplies for which you have paid in advance but which have not been supplied by us, calculated at the applicable rate;

22.3       if you validly terminate this Agreement as a result of our breach, your only remedy (see Clause 20 which sets out the limitations on our liability) will be:

  • in respect of Services or Other Services, subject to clause 22.6 a refund for the services for which you have paid in advance but which have not been supplied by us, calculated at the applicable rate; and/or
  • in respect of Goods, a refund of the amount you have paid for the Goods;

22.4       if you request a change in an applicable Service Schedule for the Services (for example, if you select a different Service plan) such that the new Charges for the Services payable each Due Date (“New Charges”) differ from the previous Charges payable each Anniversary Date (“Previous Charges”), then:

  • if the New Charges exceed the Previous Charges, you must pay us at the time that the applicable Service Schedule is changed (“Changeover Date”) the New Charges payable for the period until the next Anniversary Date (less any unused Previous Charges you have pre-paid to us); or
  • if the New Charges are less than the Previous Charges, we will retain a credit and will apply this amount towards the New Charges on successive Anniversary Dates until this credit has been used up; and
  • you agree to pay the New Charges (which will be deemed to be the Charges) from the Changeover Date in accordance with this Agreement;

22.5       Each Service is billed in periodic blocks from the relevant Anniversary Date for that Service. If we terminate that Service pursuant to clause 15.2, you terminate that Service pursuant to clause 16, or clause 22.3 applies, we will refund you for any unused portion of that Service that you have paid for in advance in periodic blocks. However, if you have used any part of any full periodic block for that Service we will not provide a refund in respect of that period.

  1.         ASSIGNMENT

Your rights and obligations under this Agreement shall not be assigned, sold, delegated, alienated, transferred or otherwise disposed of without our consent.

  1.         TECHNICAL SUPPORT

Our Services include technical support services during commissioning of the Services. Once you have successfully connected to the mobile network through us and/or gained any additional Services you have purchased from us, we have fulfilled our support obligations to you. Additional support may be provided, although it may be at an additional cost to you in the event that the reported problem is due to faults in your software or hardware. We cannot provide free support for faults that are outside our system or that do not relate to the Supplies.

  1.         FORCE MAJEURE

No party is liable for any failure to perform or delay in its performance of its obligations under this Agreement if the failure or delay is due to anything beyond that party’s reasonable control. If that failure or delay exceeds sixty (60) days the other party may terminate this Agreement with immediate effect by giving notice to the party. This Clause does not apply to any obligation to pay money.

  1.         SEVERABILITY

The parties to this Agreement agree that if any provisions of this Agreement shall be determined to be void by any court of competent jurisdiction such determination shall not affect any other provision of this Agreement and all other provisions shall remain in full force and effect.

  1.         WAIVER

The failure of a party at any time to require performance of any obligation under this Agreement is not a waiver of that party’s right:

27.1       to insist on the performance of, or claim damages for breach of, that obligation unless that party acknowledges its waiver in writing ; or

27.2       at any other time to require performance of that or any other obligation under this Agreement.

  1.         COMPLAINTS HANDLING

M2M One is committed to resolving customer complaints quickly and in a satisfactory manner. If you have a complaint, we request that you contact M2M One using the contact details located on the Website. If your complaint is not resolved at the first point of contact, that is, within the department your complaint relates to, you may have the complaint reviewed at a higher level.  If you are not satisfied with M2M One’s review and response to your complaint you may either contact the Office of Fair Trading in your state or territory, or as a last resort, the Telecommunications Industry Ombudsman.

  1.         COMPLIANCE WITH LAWS

We must comply with laws and directives under state or federal laws including without limitation those issued by state or federal law enforcement agencies that have jurisdiction over the use of mobile data services. We will cooperate with law enforcement agencies and other service providers to control and prevent unacceptable behaviour and may implement automated mechanisms to prevent behaviour which is or may be in breach. It may include disclosing personal information or any other information or data held by us about you in accordance with our Privacy Policy, and/or disclosing any other information or data held by us in, or in relation to, your account provided that:

29.1       we have reason to suspect that unlawful activity has been, is being or may be engaged in, and we disclose this information as a necessary part of our investigation of the matter or in reporting our concerns to relevant persons or authorities; or

29.2       we are required or specifically permitted by or under law to provide this information to an authority or person that is duly authorised to request it; or

29.3       a court order compels us to disclose this information to a specified recipient; or

29.4       we are otherwise required or specifically permitted by law to disclose this information.

  1.          GOVERNING LAW

This Agreement is governed by the law in force in the New Zealand and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of New Zealand and courts of appeal from them for determining any dispute concerning this Agreement.

ACCEPTABLE USE POLICY

INTRODUCTION

This is M2M One’s Acceptable Use Policy, which forms part of M2M One’s Standard Form of Agreement.  Definitions for the terms used in this Policy are contained in M2M One’s Standard Form of Agreement. This Policy only applies to the extent that is relevant to a Service you have acquired from us.

YOUR OBLIGATIONS AND PROHIBITED USE

  1. You must not access, nor permit any other party to access, the Services for any purpose or activity of an illegal, fraudulent or defamatory nature or any other nature contrary to statute.
  2. You must not use the Services to make available any material that is illegal, including but not limited to material that is classified or would be classified as RC or X under the National Classification Code set out in Schedule 5 of the Classification (Publications, Films and Computer Games) Act 1995 (SA), nor will you use the Services to provide unrestricted access to material that is unsuitable for minors.
  3. You must not use the Services to transmit or display (nor permit any other party to use the Services to transmit or display) threatening, obscene, offensive or abusive materials, or engage in any form of harassment when using the Services (or when permitting any other party to use the Services).
  4. You must not use (or attempt to use) or distribute tools designed for compromising security (such as password guessing programs, cracking tools, packet sniffers or network probing tools).