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Watchdog – Terms & Conditions

STANDARD TERMS AND CONDITIONS OF

WATCHDOG CORPORATION LTD

FOR PROVISION OF SERVICES AND EQUIPMENT

 

1.        DEFINITIONS

(a)               “Acceptable Use Policy” means the policy contained in clause 7 of this Agreement.

(b)               “Agreement” means these Standard Terms and Conditions and the details on the Application for a Watchdog Internet Account.

(c)               “CGA” means the Consumer Guarantees Act 1993 in relation to goods and services.

(d)               “CPE” means Customer Premises Equipment being computer hardware owned by Watchdog and supplied to the Customer for the duration of the Agreement.

(e)               “Customer” refers to all other persons, companies, or other entities identified on the Application for a Watchdog Internet Account.

(f)                 “Equipment” means computer hardware (eg router or firewall) supplied by Watchdog and purchased by the Customer.

(g)               “Force Majeure” means any event or circumstance which is beyond the control of either party and which results in, or causes the failure of, that party to perform any of its obligations under this Agreement including acts of God which, or the results of which, could not have been prevented by reasonable care, act of a public enemy, declared or undeclared war, threat of war, terrorist act, blockade, revolution, riot, insurrection, civil commotion, or public demonstration;

(h)              “Service” means the computing and communications service known as the Watchdog Internet Service and/or CampusNet Service, as the case may be, as modified from time to time.

(i)         “Watchdog” means Watchdog Corporation Limited, trading as “Watchdog” and “Familynet” and its employees, officers, agents and affiliates.

2.        APPLICATION AND VARIATION OF THESE TERMS

These terms and conditions are the terms on which Watchdog provides Services, Equipment and/or CPE to its Customers, modified by any written contract between Watchdog and its Customers in any particular case.  The terms so modified constitute the agreement in its entirety and supersede prior agreements.  Watchdog may modify these terms as applying to any agreement, the pricing structure for any Service, Equipment and/or CPE or the terms of the operation by general notice on the page of the Internet referred to on the Watchdog Home Page, and any use after that publication will constitute an acceptance of those modifications.

3.        WATCHDOG’S COMMITMENTS TO THE CUSTOMER

Watchdog is committed to:

  • Putting the Customer in touch with the correct person within the company to answer Customer inquires.
  • Responding to the Customer’s needs quickly and efficiently.
  • Keeping the Customer informed of new services that may benefit the Customer.

4.         WATCHDOG’S COMMITMENTS TO THE PROVISION OF SERVICES AND SALE OF EQUIPMENT

4.1     In providing Services, Watchdog will endeavour to:
  • Provide prompt and efficient service;
  • Make reasonable efforts to ensure the Services do everything Watchdog states that they will do, but Watchdog does not represent or guarantee that they will;
  • Provide Services within a reasonable time or within any predetermined time limit;
  • Do the utmost to provide a reliable Service although the inherent nature of technology prevents a guarantee that it will be continuous or fault free; and
  • Make every effort to fix any fault or disruption which occurs in providing the Services (other than any fault or disruption with Telecom New Zealand or TelstraClear networks or with any other networks)
  • Retain new mail on our servers for a maximum of 90 days.
  • Provide the capability for simultaneous dialup usage but this time will be chargeable.
4.2       Whenever Watchdog sells Equipment, Watchdog will endeavour to ensure that:
  • The Equipment will, for the 12 month period after the date it was sold, be fit for the purpose for which that equipment is normally provided;
  • The Equipment will perform according to its specifications and will fulfil the requirements as documented; and
  • The Equipment will be approved for connection to Telecom network, if necessary.

5.       MANUFACTURER’S EQUIPMENT WARRANTY

Where Watchdog sells Equipment to the Customer, then, where possible, any warranties provided by the manufacturer of the Equipment will be assigned to the Customer. Where this is not possible Watchdog will hold those warranties for the Customer’s benefit. A claim under a manufacturer’s warranty must be produced in writing to Watchdog with a copy of the purchase invoice so that Watchdog can pursue it on the Customer’s behalf. There will be no obligation to supply replacement Equipment while repairs or replacement is determined under any manufacturer’s warranty. No claim under the CGA or manufacturer’s warranty will be grounds for withholding any payment due to Watchdog.

6.         THE CUSTOMER’S RESPONSIBILITIES

6.1       Whenever Watchdog provides Services, Equipment and/or CPE to the Customer, the Customer undertakes that it will:
  • Follow Watchdog’s directions and advice regarding the use of the Services, Equipment and/or CPE;
  • Use the Services, Equipment and/or CPE for lawful purposes only;
  • Comply with the Acceptable Use Policy contained in Clause 7;
  • Make sure all information provided is correct and complete;
  • Ensure that anyone else using the Services, Equipment and/or CPE meets these responsibilities;
  • Provide reasonable access to the Customer’s premises during working hours so as to enable Watchdog to repair any Equipment, CPE or Services;
  • Pay for repairing or replacing any part of the Equipment, and/or CPE which is on the Customer’s property and is lost or damaged by the Customer or anyone else for whom the Customer is responsible;
  • Make due and prompt payment of all charges, costs and expenses payable under this Agreement;
  • Meet all the Customer’s obligations under this Agreement; and
6.2       Whenever CPE is supplied by Watchdog to the Customer, the Customer further undertakes and acknowledges that:
  • Watchdog retains all ownership rights in respect of the CPE;
  • It is responsible for any loss, theft or damage to the CPE;
  • It will insure and keep insured the CPE at all times;
  • It will not sell, lease, dispose of, lend, pledge, charge or otherwise part with possession of the CPE;
  • It will not use the CPE for any purpose other than to access the Services; and
  • It will not modify or interfere with the CPE; and
  • In the event that it is in default under any of the terms of the Agreement, Watchdog may upon the giving of three working days notice enter the premises and remove the CPE.

7.        ACCEPTABLE USE POLICY

The Customer agrees to comply with the following while utilising the Services:

  • The Customer will not use or attempt to use peer-to-peer file sharing programs such as Kazaa, Gnutella, LimeWire, Bearshare, eDonkey, BitTorrent or similar;
  • The Customer will not send bulk unsolicited email (Spam) to any email address on the Internet;
  • The Customer will not upload to any web site any material that Watchdog would normally block access to via the standard blocking categories such as pornography;
  • The Customer will not break in to another computer or server on the Internet without authorisation or attempt to do this or use “hacking” tools such as port scanners or password crackers against any other computer or server without the owner’s authorisation;
  • The Customer will not send emails or other communication to another person on the Internet that is defamatory or of a threatening or deliberately offensive nature; and
  • The Customer will comply with all applicable laws, regulations, standards and codes including, but not limited to, the Privacy Act 1998, the Fair Trading Act 1986, Copyright Act 1994, the Defamation Act 1992 and the Crimes Act 1991.

The Customer agrees that not complying with any of the above policies could at the sole discretion of Watchdog result in immediate termination of the Watchdog Services to the Customer.

8.        INDEMNITY

The Customer agrees to indemnify Watchdog from and against all claims, expenses, damages or other liabilities arising directly or indirectly from the use of the Services, Equipment and/or CPE by the Customer (or its representatives, employees or associates or any other person using the Equipment, CPE and/or Services provided), including but not limited to claims in respect of the accessing of obscene, defamatory and/or offensive materials, defamation, breach of copyright or other intellectual property right infringement. The Customer further agrees to indemnify Watchdog against any claims made against Watchdog should Watchdog exercise its rights to enter the Customers premises as specified in clauses 6.2 and 11.

9.        CREDIT CHECKS PRIVACY CONSENT 

The Customer consents to Watchdog instructing a credit-reporting agency to obtain personal information (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by Watchdog of an application for credit (whether commercial or personal) or for the purpose of collection of payments that are overdue or for the ongoing credit management of the Customer.

10.      CHARGES

The Customer accepts liability for the Services, Equipment and/or CPE provided regardless of who uses them. All charges are payable monthly and are subject to change with thirty days written notice.  The acceptance of this agreement permits credit checks to be carried out on the Customer in accordance with clause 9. All charges are to be paid on time on a monthly basis. Failure to keep an account current will result in suspension of Services and all costs of recovery shall be at the Customer’s expense.

11.      BILLING

Watchdog will invoice charges monthly.  Each invoice will advise the due date for payment.  If payment is not made to Watchdog by the due date then:

  • The Customer may be charged a late payment charge;
  • 1.5% interest may be charged from the due date until the date it is paid;
  • The Customer may be required to pay any costs incurred by anyone (including agents) in recovering the money owed, or in exercising any other rights, including commissions, credit collection and legal costs on a solicitor client basis; and
  • Watchdog may withhold, suspend, restrict or terminate any Service provided to the Customer and the Customer will have to pay any reconnection fees.
  • Watchdog may, upon the giving of 3 business days notice, enter the Customer’s premises and remove the CPE.

12.      SUSPENSION OF SERVICES

In the event that the Customer does not meet any of its responsibilities and/or obligations under this Agreement, Watchdog may change, withhold, suspend, restrict, replace or terminate any Service provided to the Customer or the entire Agreement or take such other steps as Watchdog believes are necessary or appropriate.  Where a Service is suspended or terminated for the reasons set out above the Customer will be required to pay all reconnection costs.

Watchdog will not be liable for any loss suffered by the Customer as a consequence of any action taken by Watchdog under this clause.

The Customer agrees that normal charges will continue to apply during the period of suspension or restriction of the Services.

13.      DISRUPTION OF SERVICES

From time to time the Services may be disrupted and the Customer acknowledges that Watchdog will not be liable to the Customer or to any other party for any loss suffered whatsoever due to the disruption of Services nor will Watchdog refund any of the charges made by Watchdog in respect of the Services during the time that the Services are disrupted.

14.       CONSUMER GUARANTEES ACT

The parties acknowledge that residential Customers will have rights under the Consumer Guarantees Act 1993 and this clause does not alter those rights.  However, if the Services, Equipment and/or CPE are used for business purposes (or if the Customer has advised or represented to Watchdog that they will do so) then the Customer agrees that the Consumer Guarantees Act does not apply to this Agreement.

15.       NO WARRANTIES MADE BY WATCHDOG

Notwithstanding clauses 3 and 4 of this Agreement the Customer acknowledges that no promises, representations, warranties or undertakings have been made or given by Watchdog to any person or company on its behalf in relation to the suitability, reliability, availability, timeliness, lack of viruses or other harmful features, profitability of or any other consequences or benefits to be obtained from the delivery and use of the Services, Equipment and/or CPE.  The Customer acknowledges that it has relied on its own skill and judgement in deciding to acquire the Services, Equipment and/or CPE.

16.       LIMITATION OF WARRANTIES

Notwithstanding anything stated in this Agreement all warranties in respect of the provision of Equipment, CPE and Services by Watchdog are excluded (whether express implied or statutory, including but not limited to warranties of merchantability, fitness for a particular purpose or non-infringement) except to the extent that such Warranties can not be excluded by law.

17.       LIMITATION OF LIABILITY

Watchdog’s liability in respect of a breach of warranty that can not be excluded by law is limited at the exclusive option of Watchdog as follows:

In respect of Equipment and CPE, Watchdog’s liability is limited to:

  • The replacement or repair of such Equipment, or
  • The payment of the cost of repairing or replacing such Equipment (whichever is the lesser)

In respect of Services, Watchdog’s liability is limited to:

  • The supplying of those Services again; or
  • The payment of the cost of having those Services supplied again.

18.       EXCLUSION OF DAMAGES

  • Watchdog will not in any circumstances be liable to the Customer or any third party for any damages whatsoever (including, without limitation damages for loss of revenue, profit, business, business interruption, loss of business information or any other direct, indirect, incidental or consequential loss or special punitive or exemplary damages or losses which the Customer may suffer or incur) arising out of the use or inability to use or supply or non supply of the Services, Equipment and/or CPE.

Watchdog’s total liability (including total liability for multiple events and/or breaches of this Agreement) under this Agreement is limited as follows:

  • In respect of damages suffered as a result of Services and/or CPE provided, to the amount actually paid by the Customer for the Services in the month period prior to the date that the damages occurred;
  • In respect of damages suffered as a result of Equipment supplied, to the amount paid by the Customer in respect of the Equipment.
  • The Customer agrees that to be entitled to the remedies as set out in clause 17 above the Customer must give details of Watchdog’s failure and provide satisfactory proof of the expenses incurred as a result of Watchdog’s failure within 3 months of the date on which Watchdog’s failure first incurred.

19.       NO OTHER REMEDY

The Customer agrees that clauses 17 and 18 set out the Customer’s sole and exclusive rights and remedies against Watchdog and its respective officers, employees, contractors, agents and suppliers in relation to any claims brought by the Customer or any third party in respect of any damage whatever and however liability arises or might arise (whether contract, tort, negligence, equity, breach of statutory duty or otherwise) and that Watchdog will not be liable for any additional amounts or other forms of compensation, damages, loss or expenses whatsoever.

20.       DISCLAIMER AND EXCLUSION

To the fullest extent permitted by law the Customer agrees that Watchdog will not be responsible for any unauthorised access to or alteration of the Customer’s communications or data, any material or data sent or received or not sent or not received, any transactions entered into through use of the Services any threatening, defamatory, obscene, offensive or illegal content or conduct of any other party or any infringement of another’s rights, including intellectual property rights.  Watchdog is not responsible for any content sent or received using or included in the Services by any third party.

21.      EXCLUSION OF LIABILITY

The Consumer Guarantees Act will apply to the supply of Services, Equipment and/or CPE of any kind ordinarily acquired for personal, household or domestic use or consumption, except where the Customer has acquired the Services, Equipment and/or CPE for the purpose of a business in any way.  Watchdog excludes all other liability it may have to the Customer.  This exclusion also applies for the benefit of Watchdog’s employees, contractors and agents.  None of these are liable to the Customer or has to pay the Customer for anything in respect of anything they do or do not do, or delays in doing, no matter what the terms of the agreement between the Customer and Watchdog.  This exclusion applies no matter what the Customer’s claim and however liability may arise.

22.       OWNERSHIP OF EQUIPMENT

The Equipment shall be at the Customer’s risk from the time of delivery to the Customer.  Title to Equipment and products shall not pass from Watchdog until the price and any late interest due and GST is paid in full.  Even though possession or control of the Equipment may be with the Customer, transfer of title will not occur before full payment is made.  The Customer must take good care of the Equipment until payment is made in full.  The Customer is not entitled to pledge or charge or in anyway dispose of the Equipment or take possession of the Equipment until ownership has passed.  Until title has passed to the Customer it will hold the Equipment as trustee for Watchdog.

Personal Property Securities Act 1999 (PPSA) – the Customer permits Watchdog to, at Watchdog’s discretion and without notice to the Customer, register the Equipment under the PPSA.

23.       TERMINATION OF SERVICES

One month’s written notice of termination is required by either party under this agreement (except where a debt is overdue or where our Acceptable Use Policy is not adhered to).  If the agreement is for a fixed term then payment for the charges for the Service until the end of that time period will be due irrespective of cancellation.  Failure to pay charges or meet other responsibilities under any agreement between the parties may result in the suspension, restriction or termination of the Services.  It may be necessary to temporarily suspend or restrict any Service if the Service or Equipment requires maintenance or upgrading or for any other purpose that is deemed necessary.

24.       RIGHTS TO COMPENSATION

The Customer agrees to meet all expenses, including legal fees incurred in collecting any money owed or in exercising any legal rights.

25.       INTELLECTUAL PROPERTY RIGHTS

Watchdog retains Intellectual property rights in the Equipment, CPE, advice, software products, documentation and solutions forming part of the Services.  All information about the design of solutions provided is confidential and must not be copied or disclosed.

26.       FORCE MAJEURE

Suspension of Obligations:

If either party is unable to carry out any of its obligations under this Agreement because of Force Majeure, this Agreement will remain in effect but except as otherwise provided, both parties’ obligations, other than any obligation not affected by the Force Majeure, will be suspended without liability for a period equal to the period of the Force Majeure, and:

  • The non-performing party will give the other party prompt notice describing the event or circumstance claimed to be Force Majeure, including the nature of the occurrence and its expected duration and, where reasonably practicable, continue to furnish regular reports with respect thereto during the period of Force Majeure;
  • The suspension of obligations will be of no greater scope than is required by the Force Majeure;
  • No obligations of either party which accrued before the Force Majeure will be suspended as a result of the Force Majeure; and
  • The non-performing party will use all reasonable efforts to remedy as quickly as possible its inability to perform its obligations.

27.       ASSIGNMENT

Assignment of entitlement under this agreement is permitted provided Watchdog has granted approval in writing.  Watchdog reserves the right to assign to subcontractors or third party operatives to fulfil its obligations under this agreement.

28.       GOVERNING LAW

This Agreement is governed by the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand Courts.