1. Definitions

1.1    In this Agreement unless the context requires otherwise:

  • Agreement means the front page of this document, this Schedule 1 and each Service Schedule;
  • Change Submission means a change submission as defined in clause 4.4;
  • Client Tasks means the tasks that the Client will carry out as set out in a Service Schedule;
  • Deliverable means any deliverable to be completed and/or supplied by Callnet under this Agreement as more particularly described in a Service Schedule;
  • Fixed Term means the period (if any) specified in a Service Schedule;
  • Intellectual Property means all brand names, trade marks, service marks, trade names, logos, copyrights, patents, licences, designs, know-how, trade secrets, inventions, technical data, concepts, ideas and all other similar property;
  • Callnet Equipment means any equipment provided by Callnet, which the Client has not purchased and which is installed or left at the Client’s premises;
  • Service Fees means the service fees set out in a Service Schedule;
  • Service Schedule means any schedule that:
    • (a)    contains the information set out in Schedule 2 or such other information as the parties may agree, and
    • (b)    is attached or referred to in this Agreement;
  • Schedule means any schedule attached to this Agreement and is included (unless the context otherwise requires) within the term “Agreement”;
  • Services means the VoIP and other phone services that Callnet will provide as set out in a Service Schedule;
  • Special Conditions means the special conditions (if any) set out in a Service Schedule;
  • Specifications means the specifications as set out in a Service Schedule;
  • Timetable means the timetable as set out in a Service Schedule;
  • Working Day means a day on which businesses and banks in Auckland are generally open for business.

1.2    In this Agreement unless the context indicates otherwise:

(a)    the singular includes the plural and vice versa;
(b)    headings are inserted for convenience and do not affect interpretation.

1.3    In the event of any inconsistency between:

(a)    this Agreement and the Schedules or the content of any other document, this Agreement will prevail except as expressly set out in this Agreement;
(b)    this Agreement and a Service Schedule, this Agreement will prevail unless the Service Schedule expressly states that it overrides this Agreement; and
(c)    any Schedules and the content of a document stated to be incorporated by reference as part of this Agreement, the Schedule will prevail.

2.    Provision of Services

2.1    From time to time the parties may agree that Callnet will provide Services for the Client.  In such circumstances the Client will submit to Callnet a draft Service Schedule and once the parties have agreed on the terms of the Service Schedule, they will sign the Service Schedule.  Once signed, the Service Schedule will be deemed to incorporate the provisions of this Agreement.

2.2    For each Service Schedule, Callnet will:

(a)    provide the Services in accordance with the Timetable (if any); and
(b)    provide the Deliverables (if any) in a manner that meets the Specifications in all material respects, on the terms and conditions set out in this Agreement.

2.3    In providing the Services, Callnet may require assistance from the Client and access to the Client’s premises. The Client will:

(a)    perform the Client Tasks;
(b)    allow Callnet access to the Client’s premises to provide the Services;
(c)    comply with any reasonable instructions specified by Callnet in respect of the Services.

2.4    If the Client fails to comply with clause 2.3, Callnet will not be liable for any failure or delay in providing the Services or Deliverables.  Callnet may also charge and the Client will pay any additional costs resulting from such failure.

2.5    Callnet may install equipment at the Client’s premises. All Callnet Equipment remains the property of Callnet and the Client is liable for any damages.  The Client will notify Callnet if any Callnet Equipment is lost, stolen or damaged. The Client must not use the Callnet Equipment for any purpose other than to use the Services and Deliverables and the Client must not modify or otherwise interfere with the Callnet Equipment.  In the case of faulty Callnet Equipment, Callnet will bear the cost of returning Callnet Equipment for repair.

2.6    The Client acknowledges that Callnet’s retention of title in Callnet Equipment constitutes a security interest for the purposes of the Personal Property Securities Act 1999 and that Callnet may register its interest against the Client on the Personal Property Securities Register. The Client waives its right to receive a copy of any verification statement or financing change statement in respect of such registration.

2.7    Callnet may, without prejudice to any right to which it might have to terminate this Agreement, suspend the provision of the Services if: it needs to carry out emergency works to its network or equipment; it has reasonable grounds to believe the Services are being used fraudulently or illegally; or it is obliged to comply with a regulatory order, instruction or request. Callnet will not be liable for any loss, damage or inconvenience the Client may incur as a result of the suspension.  Callnet will, where reasonably practicable, give the Client prior notice of any suspension.

2.8    If the Services involve End User Number Portability, prior to placing orders for the Services, the Client will provide authorisation for porting each number.  The Client is responsible for obtaining all information required to complete porting.

3.    Pricing and Payment Terms

3.1    Callnet may invoice the Services in the manner specified in the applicable Service Schedule.  Each invoice will specify:

(a)    the Services and Deliverables provided to the Client; and
(b)    agreed disbursements (invoiced monthly in arrears and in accordance with the Service Schedule).

3.2    The Client acknowledges that Callnet’s records are conclusive evidence of the Client’s use of the Services used and the Service Fees payable.  The Client accepts that use of the interconnect link IP address(s) nominated by the Client will be deemed to be authorised by the Client and that the Client will pay any Service Fees arising from such use.

3.3    The Client will pay each invoice in the manner and at the times specified in the Service Schedule, or if not specified, on the 15th of the month following the month of calling activity.

3.4    If the Client fails to pay any amount due, Callnet may, without prejudice to its other rights or remedies under this Agreement:

(a)    charge interest on the unpaid amount from the due date until the date of actual payment at 2% per annum over the base overdraft facility rate charged by Callnet’s bankers from time to time; and/or
(b)    suspend the provision of the Services without liability.

3.5    All amounts stated are exclusive of Goods and Services Tax (GST) at the prevailing rate.

4.    Change Control

4.1    The Client may request or Callnet may recommend changes to the level, scope or timing of any Services and/or Deliverables in accordance with this clause 4.

4.2    Where the Client requests a change, Callnet will (unless otherwise agreed) deliver a Change Submission to the Client within 10 Working Days of receiving a written request for change from the Client.

4.3    Where Callnet believes that a change would be appropriate it will notify the Client and prepare a Change Submission.

4.4    Callnet will, for any change requested by the Client or proposed by Callnet, prepare and submit a document (Change Submission) that will be allocated a unique reference number and will contain:

(a)    the title of the change;
(b)    the originator and the date of the request or recommendation for the change;
(c)    the reason for and full details of the change;
(d)    the cost (in accordance with any approach agreed between the parties in determining such cost), if any, of implementing the change;
(e)    the impact, if any, of the change on other aspects of this Agreement;
(f)    details of other Client projects or activities that may be affected.

4.5    For each Change Submission submitted, the Client will evaluate the Change Submission and:

(a)    request any further information, which Callnet will provide promptly;
(b)    approve the Change Submission, by giving notice to Callnet, together with a copy of the Change Submission signed by the Client, in which case this Agreement is amended in accordance with the terms of the Change Submission; or
(c)    notify Callnet of the rejection of the Change Submission, in which case this Agreement continues in force unchanged.

4.6    Where the Client requests a change, the Client may be required to pay Callnet’s reasonable costs in preparing the Change Submission and responding to the Client’s requests. Callnet will inform the Client of such costs before preparing the Change Submission and will only proceed with such work on approval from the Client.

5.    Warranties and Limitation of Liability

5.1    The Client understands that Services include VoIP calling, which is not a traditional phone service and is provided on a reasonable endeavours basis.

5.2    Callnet warrants that the Services will be provided in a proper, competent and professional manner and that Callnet will use reasonable endeavours to provide the Services to the Client.  However the Client acknowledges that the Services rely on Callnet using networks and services owned by other people.  As a result Callnet cannot promise that the Services will always be available or fully functioning.  If the Services are unavailable for any reason, Callnet will endeavour to restore the Services as soon as possible.  Callnet will not be held liable for any charges or damages to the Client should the Client be prevented from accessing the Services.  The Client accepts that Callnet has no liability whatsoever associated with Client use of the public internet for access to Callnet’s VoIP Origination/Termination Services.

5.3    Except as expressly set out in this Agreement, all representations, conditions and warranties (whether express or implied, statutory or otherwise and including warranties as to the merchantable quality or fitness for any particular purpose of the Services and the Deliverables) are expressly excluded.

5.4    The Client will indemnify Callnet against all costs, expenses and damages incurred through any claims against Callnet resulting from the use of the Services or Deliverables by the Client or the breach of any undertakings by the Client.

5.5    Callnet will not be liable in any event for loss of profits or any indirect, consequential or special loss or damage suffered or incurred by the Client as a result of anything done by Callnet under this Agreement.

5.6    If the Services fail to operate and the Client diverts traffic to another carrier, Callnet will not be responsible for that carrier’s charges.

5.7    Disclosure of account details to persons other than the authorised employees of Callnet is entirely at the Client’s risk.  The Client accepts sole responsibility for maintaining the security of any user IDs and passwords associated with the Services, and Callnet has no liability resulting from the Client failing to maintain the security of this user information.

5.8    The Client warrants that it is not reliant on the Services to provide or support 111 or any other emergency services and will assume all responsibilities in connection with the provision of or access to 111 services.

5.9    Callnet’s liability to the Client arising out of all claims for any loss or damage under this Agreement will not exceed in aggregate an amount equal to the Service Fees actually paid by the Client to Callnet in the 6 months prior to the date on which Callnet’s liability arose.

6.    IP and Confidentiality

6.1    Ownership of all Intellectual Property arising out of the design and development of every Deliverable by Callnet (whether or not the Deliverable is complete), and any modification to the Deliverable by the Client, will (unless stated otherwise in a Service Schedule) belong to Callnet and the Client will not dispute such ownership. The Client hereby assigns to Callnet any rights it may have in the Intellectual Property arising out of the design and development of every Deliverable.

6.2    Callnet grants the Client (during and after the term of this Agreement) a non-exclusive licence to use, copy, modify and enhance the Deliverables only for its internal business purposes, provided that the Client has paid for the Deliverables.

6.3    The assignment of any specific DDI number to the Client will be made at the sole discretion of Callnet. The Client has no property right to any numbers associated with any of the Services.

6.4    Each party will preserve the confidentiality of all Confidential Information obtained from the other in connection with this Agreement.  Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this Agreement.  The Client will require its officers, employees and agents not to use, disclose or copy any Confidential Information for any purpose except as permitted by this Agreement.

6.5    For the purpose of this clause 6 ”Confidential Information” includes all information exchanged between the parties to this Agreement, whether in writing, electronically or orally, but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by the other party.

6.6    Each party will on demand and, in any event, on termination of this Agreement deliver to the other party all Confidential Information and any other documents or information supplied by or obtained from the other party.

6.7    This clause 6 will survive termination of this Agreement.

7.    Term and Termination

7.1    This Agreement will commence on the date this Agreement is signed and will continue until terminated in accordance with the following provisions of this clause 7.

7.2    If a Fixed Term is specified in a Service Schedule, this Agreement will remain in force for the Fixed Term.  If the Client does not give notice of termination to Callnet at least 30 Working Days before the end of the Fixed Term, this Agreement will continue in force for a further period equal to the Fixed Term.

7.3    If a Fixed Term is specified in a Service Schedule, the Client may terminate this Agreement before the expiry of the Fixed Term on giving Callnet party not less than 30 Working Days’ written notice of termination but must pay an early termination fee calculated at 75% of the Client’s average spend with Callnet multiplied by the number of unexpired months of the Fixed Term.

7.4    If no Fixed Term is specified in a Service Schedule, this Agreement will remain in force until either party gives the other party not less than 30 Working Days’ written notice of termination.

7.5    Either party may terminate this Agreement immediately if the other party:

(a)    breaches a material term of this Agreement and fails to remedy such breach within 30 days of receiving notice requiring the breach to be remedied;
(b)    goes into liquidation or has a receiver or statutory manager appointed of any of its assets, becomes insolvent or makes any arrangements with creditors.

7.6    On termination of this Agreement, the Client will pay to Callnet all sums which have been invoiced which are outstanding and which are properly payable for the Services provided.

8.    Dispute Resolution

8.1    If a dispute arises out of or relates to this Agreement (the Dispute) a party to the Agreement may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following paragraphs of this clause except where the party seeks urgent interlocutory relief.

8.2    A party claiming the Dispute has arisen under or in relation to this Agreement must give written notice to the other party specifying the nature of the Dispute.

8.3    On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.

8.4    If the Dispute is not resolved within 15 Working Days of the notice being given pursuant to clause 8.2 (or within such further period agreed in writing by the parties) either party may, by giving written notice to the other party, require the Dispute to be determined by the arbitration of a single arbitrator. The arbitrator will be appointed by the parties or, failing agreement within 5 Working Days of the notice requiring arbitration, by the President or Vice President of the New Zealand Law Society on application of either party.  The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Act 1996.

9.    Force Majeure

9.1    The failure or omission to carry out or observe any of the conditions of this Agreement will not give rise to any claim against either party or result in a breach of this Agreement, if such failure or omission arises by reason of delay or inability to perform caused by an event which is beyond the reasonable control of the relevant party.

9.2    Should either party have knowledge of or anticipate that due to a cause beyond its reasonable control it will be unable to fulfil its obligations under this Agreement at some time in the future, it will immediately:

(a)    notify the other party, giving as much detail as possible of the causes, expected duration and extent of its inability to perform its obligations, and
(b)    consult with the other party as to the means, and use its best endeavours, to minimise the effects of its inability to perform its obligations under this Agreement.

10.    General

10.1    Any notice given under this Agreement will be in writing delivered to the relevant party or sent by post, email or facsimile transmission at such address or number as may be notified in writing by each party to the other from time to time.  Any such notice will be deemed received at the time when the same is handed to or left at the address of the party to be served and if served by post two days after the day of posting and if served by email or fax on the day of sending to the correct email address or fax number.

10.2    This Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between Callnet and the Client.

10.3    If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in force and effect.

10.4    If either party waives any default or breach of this Agreement, this will not constitute a waiver of any other or subsequent default or breach.  No waiver will be effective unless made in writing.

10.5    The Client may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of Callnet.

10.6    This Agreement constitutes the entire agreement between the parties and supersedes all previous negotiations, commitments and/or writings, provided that, where a confidentiality agreement has previously been signed by the parties, that confidentiality agreement will continue in full force and effect, except to the extent of any inconsistency with this Agreement.

10.7    This Agreement is governed by the laws of New Zealand