KiwicloudIT Limited — Terms & Conditions

1. Services — General

1.1 Agreement: All Goods and Services will be supplied by KiwicloudIT upon the specific terms applicable to those Goods or Services (specific Service Descriptions) and these General Terms (together the Agreement).

1.2 Conflict: If there is any conflict between these General Terms and the specific Service Description, the specific Service Description will prevail.

1.3 Service confirmation: KiwicloudIT will give the Customer an order, a set-up email or other written confirmation detailing the Services to be supplied and the commencement date. The Customer is deemed to have accepted, and be bound by, the Agreement from the commencement date and for any services self-provisioned that attract a fee.

1.4 Fixed term arrangements: If the Goods or Services are to be provided for a fixed term, then, upon the expiry of the term, Goods and Services will continue to be provided on a monthly basis at the fee applying during the fixed term. Clause 9.1 will apply in regard to termination.

1.5 Commencement of Services: KiwicloudIT will use its reasonable endeavours to commence the Services on the commencement date, provided that KiwicloudIT will not be liable for any delay resulting from any act or omission of the Customer or any other person, including any failure to supply information, inputs, hardware, software or other systems necessary to commence the Services.

1.6 Variations: If the Customer wishes to change the Services, KiwicloudIT will provide a further written confirmation pursuant to clause 1.3, which will supersede any previous written confirmation.

1.7 Service level: Where applicable, KiwicloudIT will use its reasonable endeavours to supply the Services to the applicable service level specified in the specific Service Description.

2. Charges

2.1 Payment: The Customer will pay (in New Zealand currency) all applicable fees and charges (without deduction or set-off, except for undisputed amounts owed by KiwicloudIT) in the manner specified in the specific Service Description, or if none is specified: a) for an advance monthly fee, the fee must be paid in advance before the first day of the month to which it applies; and b) for a one-off fee, payment must be made in line with the net period on the invoice unless KiwicloudIT requires otherwise.

2.2 Credit card payments: Payments by credit card may incur a surcharge.

2.3 Cheque payments: Cheque payments are not accepted.

2.4 GST/taxes: The Customer will pay goods and services tax (GST) and all other applicable duties and taxes. KiwicloudIT will advise the Customer of the GST payable on its invoices.

2.5 Variations: Where charges are payable in advance (“Subscription Fees”), KiwicloudIT may change them on one month’s written notice. Usage Fees are subject to change by the relevant Service Provider at any time. The Customer may terminate under clause 9.1 if it objects to any change.

2.6 Interest and administration charge: Accounts in default are subject to an administration charge of $25 (being a reasonable estimate of KiwicloudIT’s cost of recovery) and interest at 2% above KiwicloudIT’s bank’s commercial overdraft rate.

2.7 Withholding payment: Except for any undisputed credit or refund owed by KiwicloudIT, the Customer shall not withhold or set off any amount payable to KiwicloudIT.

2.8 Third party charges: Unless KiwicloudIT agrees otherwise in writing, the Customer must pay all fees and charges of third parties engaged in relation to the Services.

2.9 Enforcement costs: The Customer is liable for all reasonable costs and expenses (including legal costs on a solicitor/client basis) incurred by KiwicloudIT in enforcing its rights under the Agreement.

2.10 Deposit: KiwicloudIT may require a security deposit before providing any Goods or Services and may apply the deposit as compensation for costs or losses due to the Customer’s acts or omissions.

2.11 Refunds: If the Customer terminates, it may claim a refund of overpayment or unused pre-paid fees within one (1) month from the date of termination. No refunds will be given for claims received outside this period.

3. Acceptable Use Policy

3.1 Compliance: The Customer must at all times: a) comply with this Agreement; b) comply with all applicable laws; c) maintain all software licences; d) refrain from transferring offensive or unlawful materials; e) refrain from spamming or malicious conduct; and f) refrain from conduct that affects KiwicloudIT’s ability to provide services.

3.2 Prohibited publications: The Customer must not publish, transmit, store or file: a) material that infringes copyright or other rights; b) defamatory or unlawful material; c) material intended to cause harm; d) obscene, pornographic or offensive material; e) unsolicited mass email distribution lists; or f) IRC clients, bots or servers.

3.3 Removal of content: KiwicloudIT may remove or suspend any Content if it: a) receives a complaint alleging the Content breaches applicable laws (including the Harmful Digital Communications Act 2015); b) is required to do so by law; or c) considers the Content breaches this Agreement. KiwicloudIT will use reasonable endeavours to notify the Customer and will not be liable for any refund or damages resulting from such actions.

4. Account Management

4.1 Account information: The Customer must maintain the confidentiality of its user name, login, password and any other account information.

4.2 Use of account: System accounts cannot be transferred or used by anyone other than the Customer. The Customer accepts complete responsibility for all use of its account. No more than one login session may be used at any time per system account.

4.3 Deletion of Customer data: Subject to clauses 9.3 and 13, KiwicloudIT may delete all data stored in the Customer’s account upon termination. It is the Customer’s responsibility to back up and maintain any data.

5. Information

5.1 Ownership: The Customer retains ownership of Customer Information. KiwicloudIT retains ownership of KiwicloudIT Information, including its Intellectual Property.

5.2 Customer Warranty: The Customer warrants that it has the necessary rights to the Customer Information.

5.3 Use: Each party may only use the other’s Confidential Information in relation to the Goods and Services and must keep it secure and confidential.

5.4 Disclosure: No party shall disclose the other’s Confidential Information except as required for the Goods and Services. Parties will immediately inform each other of any suspected unauthorised disclosure.

5.5 Expiry/termination: Upon expiry or termination, parties will return or destroy each other’s Confidential Information, except for audit or regulatory purposes.

5.6 Publication of information: The Customer is responsible for all information transmitted or accessed by them. KiwicloudIT does not monitor content on its servers.

5.7 Joint promotion: The Customer permits KiwicloudIT to publicise the business relationship for marketing purposes, excluding confidential terms.

5.8 IP addresses: KiwicloudIT retains control and ownership of all IP numbers and addresses assigned to the Customer.

6. Liability

6.1 Provision of Services: KiwicloudIT shall not be liable for interruption or delay caused by: a) any act or omission of the Customer or a third party; or b) Force Majeure including fire, earthquake, volcanic eruption, tornado, lightning, flood, storm, burglary or vandalism.

6.2 Limitation on liability: Subject to clause 6.4, KiwicloudIT shall not be liable for loss of profits, business, revenue, goodwill, opportunity, loss of data or any indirect or consequential loss. KiwicloudIT’s total aggregate liability is limited to the fees paid or payable in the first 6-month period of the applicable SoW or Proposal.

6.3 Implied warranties: To the extent the Customer acquires the Goods or Services in trade, the parties agree that the Consumer Guarantees Act 1993 does not apply and that it is fair and reasonable to exclude it. The parties further agree to contract out of sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 to the extent permitted by section 5D of that Act. All other implied warranties are excluded to the maximum extent permitted by law.

6.4 Liability that cannot be excluded: Nothing in this Agreement limits or excludes liability that cannot lawfully be limited or excluded, including liability for fraud, personal injury, or guarantees that cannot be contracted out of under the Consumer Guarantees Act 1993 where the Customer does not acquire the Goods or Services in trade.

7. Indemnity

The Customer indemnifies and holds KiwicloudIT harmless against all reasonable costs, expenses, losses and liability resulting from: a) a breach of these General Terms by the Customer or its employees, agents or contractors; b) any security breach caused by the Customer; c) any other act or omission by the Customer; and d) any fault or failure of the Customer’s property at KiwicloudIT’s premises. This indemnity does not apply to the extent that the relevant loss or liability is caused by KiwicloudIT’s own negligence, wilful misconduct or breach of this Agreement. The Customer shall pay to KiwicloudIT upon demand all amounts reasonably certified as required to compensate KiwicloudIT.

8. Suspension

8.1 Suspension: KiwicloudIT may suspend or deny access if: a) the Customer fails to comply with the Agreement, including payment within 10 Business Days; b) suspension is necessary to protect persons or property; c) required by law; or d) in accordance with clause 3.3.

8.2 Notice: KiwicloudIT will endeavour to give at least two Business Days’ prior notice by email for overdue charges.

9. Termination

9.1 Notice: Unless for a fixed term, the Agreement may be terminated by either party giving at least 30 days’ prior written notice.

9.2 Termination for breach: KiwicloudIT may terminate immediately if: a) the Customer fails to pay; b) the Customer breaches the Agreement without remedy within seven Business Days; c) instructed by law enforcement; d) the Customer ceases business; e) a receiver is appointed; f) the Customer is unable to pay its debts; g) the Customer stops payment; h) Force Majeure exceeds one week; or i) a material adverse event occurs.

9.3 Consequences of termination: The Customer must immediately pay all outstanding amounts, all amounts for any fixed period, and return all KiwicloudIT equipment and information.

9.4 Return of Customer property: If requested, KiwicloudIT will return the Customer’s property and information.

9.5 Account closure: KiwicloudIT will close the Account upon confirmation that all closing activities are completed. Charges continue until the Account is closed.

10. Changes

10.1 Agreement and Services Changes: KiwicloudIT may add, change or withdraw Services. Computing-environment changes require no notice if functionality and security are maintained. Service withdrawals require ninety (90) days’ notice. The Customer may terminate under clause 9.1 if it objects to any change that has a material adverse effect on it.

10.2 Acceptance of Changes: The Customer acknowledges changes by continuing to use Services, allowing renewal, or signing a revised Agreement. Customers who do not accept must discontinue use or provide written notice prior to the effective date.

11. General

11.1 Variation: KiwicloudIT may change these General Terms on one month’s written notice. The Customer may terminate under clause 9.1 if it objects to any change that has a material adverse effect on it.

11.2 Survival: Clauses 2.1, 2.5, 2.8, 5, 6 and 7 survive termination or expiry.

11.3 Notices: Notices are effective immediately if delivered by hand, 3 Business Days after posting, or when successfully sent by email during Business Hours.

11.4 Privacy/use of information: KiwicloudIT may collect, use and disclose personal and credit information for debt collection, credit reporting, account management and marketing purposes, in accordance with the Privacy Act 2020 and the Unsolicited Electronic Messages Act 2007. The Customer may opt out of marketing communications at any time.

11.5 Credit reporting: Information disclosed to credit reporting agencies may be disclosed to other third parties in accordance with the Privacy Act 2020.

11.6 Assignment: The Customer must not assign its rights without KiwicloudIT’s written consent. KiwicloudIT may assign without consent. Changes in effective control require KiwicloudIT’s consent.

11.7 Waiver: No waiver limits KiwicloudIT’s right to enforce strict compliance.

11.8 Entire agreement: The Agreement constitutes the entire agreement and supersedes all previous agreements.

11.9 Governing law and jurisdiction: The laws of New Zealand govern the Agreement, and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.

12. Service Provider Agreements and Licences

The Customer agrees that: a) all Services are supplied by the applicable Service Provider(s) subject to their terms and conditions; b) the Customer’s right to use Services is limited in accordance with applicable EULAs and agreements; and c) the Customer shall enter into a Microsoft Cloud Agreement if required for Microsoft Services.

13. Data Privacy and Confidentiality

13.1 Privacy: KiwicloudIT may collect personal information for performing its obligations under this Agreement and monitoring compliance, in accordance with the Privacy Act 2020 and the 13 Information Privacy Principles (including Information Privacy Principle 12 relating to overseas disclosure). The Customer shall ensure End Customers are notified of, and consent to, such use. Except as permitted under clause 11.4, KiwicloudIT will not make this information available to third parties or use it for marketing.

Where the GDPR (EU) applies, and otherwise in accordance with the Privacy Act 2020, KiwicloudIT agrees to: a) only access personal information for providing the Services; b) act on the Customer’s written instructions; c) ensure personnel are subject to confidentiality duties; d) take appropriate security measures; e) not engage third parties without consent; f) assist with data-subject rights; g) assist with GDPR obligations; h) delete or return personal data at the end of the Agreement; and i) submit to audits where the GDPR applies.

13.2 Confidentiality: KiwicloudIT shall treat all Confidential Information as confidential and shall not disclose or use it except for performance of this Agreement. This clause survives termination and continues in perpetuity. KiwicloudIT is not bound where information is: a) independently developed; b) in the public domain; c) disclosed by a third party without obligation; or d) required to be disclosed by law, with reasonable advance notice to the Customer.

14. Definitions and Interpretation

14.1 Definitions

Account – the Customer account profile and usage information regarding the Services selected and enabled, including User activities, account management information, User IDs and business contact information.

API – the application programming interface KiwicloudIT provides as Service Components which provide programming code to interface with and utilise the Services.

Business As Usual Changes or “BAU Changes” – changes categorised under Operational Change Management as having a low impact or low risk of implementation failure.

Business Day – any day that is not a Saturday, Sunday or statutory public holiday in Auckland, New Zealand.

Business Hours – 8.30 am to 5.30 pm Monday to Friday, except statutory public holidays in Auckland, New Zealand.

Change Advisory Board (“CAB”) – the group made up of representatives from both Parties who assume responsibility for Operational Change Management.

Change Manager – a Party’s representative who will coordinate Operational Change Management.

Confidential Information – Customer Information and KiwicloudIT Information other than information that is or becomes: a) part of the public domain; b) lawfully known to the recipient; c) available from another person lawfully; or d) required to be disclosed by law.

Content – all data, software, Solutions, products, technical data and information created, installed, uploaded or transferred in connection with the Services.

Contract Period – the Minimum Period plus any renewal period on expiry of the Minimum Period.

CPU Utilisation – the usage of a CPU Core measured as a percentage of the CPU Core capacity.

Customer – the customer identified in the Order Form or Proposal who acquires the Goods or Services.

Customer Applications – software applications provided by the Customer that are not provided or managed by KiwicloudIT.

Customer High Risk Activity – a Customer activity that in KiwicloudIT’s reasonable opinion may be high risk or cause interruption to the KiwicloudIT Infrastructure.

Customer Information – all information, content and data about the Customer disclosed to or acquired by KiwicloudIT, including all data stored on KiwicloudIT’s servers.

Customer Specific Network – the connectivity, including firewalls and load balancing, between Server Instances.

Data Centre – the facility from which KiwicloudIT provides the Services.

Disk – physical media on which data can be stored.

Disk Utilisation – the volume of disk space used, measured against the Customer’s pre-allocated usable disk space.

Domain Name – a name registered with an Internet registration authority for use as part of a URL.

DNS Service – the “Domain Name Servers” delivered as part of the Service.

Enabling Software – any Services Component software and documentation KiwicloudIT provides to facilitate access to and use of the Services.

End of Life – the point at which KiwicloudIT withdraws an Operating System or version from the Service.

Enterprise – any legal entity and the subsidiaries it owns by more than 50 percent.

Entitlements – the Authorisations and business parameters relating to the Customer’s use of the Services.

Firewall – a device or software service designed to block unauthorised access whilst allowing authorised access.

General Terms – these general terms and conditions as amended from time to time.

Image – a software image file containing the functionality of software program(s) that KiwicloudIT makes available as part of the Services.

Incident – any single event that is not part of the normal operation of the Service and that causes, or may cause, an interruption to, or a reduction in, the quality of the Service.

Internet – the public worldwide network of TCP/IP-based networks.

Internet Connectivity – connectivity between the Internet and the Service.

ISV – Independent Software Vendor.

Licensor – the owner or licensor of the Operating System.

MACDs – Moves, Adds, Changes & Delete type requests logged via support channels.

Normal Change – a modification to one or more components of the Service.

Operating System – the operating systems relating to the Server Instances forming part of the Service.

Operational Change Management – the activities around submission, agreement and implementation of an operational change to the Service.

Operational Service Date or OSD – the date on which KiwicloudIT first makes the Service available to the Customer.

Order Form – the Proposal or Customer-accepted quotation.

Proposal – the customer requirements document specifying the details and charges for the Service.

RAM – the memory available to a Server Instance.

RAM Utilisation – the overall utilisation of memory assigned to the Server Instance.

Rate Card – the document setting out the Charges for additional services available to the Customer.

Server Instance – an instance of an Operating System with a defined number of CPU Cores, RAM and Disk.

Service – the KiwicloudIT Managed Compute service and any optional services set out in the Proposal.

Service Component Software – software functionality that KiwicloudIT makes available as a Service Component.

Services Component(s) – the hardware, software, APIs, tools and documentation KiwicloudIT utilises to provide the Services.

Service Description – the definition of what a service provides and how it is accessed and used.

Service Desk – the service desk provided by KiwicloudIT as the initial point of contact for the Customer.

Service Level Agreement or “SLA” – the agreed level of service for delivery, availability and Incident resolution.

Service Request – a request for an addition or deletion to the Service, such as a Normal Change.

Solution – a Customer-created software application solution made available to Solution Recipients.

Solution Recipients – any entities or individuals to whom the Customer provides access to a VM, product or services.

Storage – the disk space associated with a Server Instance.

Support – all labour provided by KiwicloudIT other than labour not related to KiwicloudIT’s network or hardware.

Third Party Image – a software image file containing selected third-party software programs.

Third Party Incidents – any single event not part of the normal operation of a service provided by a party other than KiwicloudIT.

Third Party Information – data, information and materials not owned or generated by the Customer.

KiwicloudIT – KiwicloudIT Limited and any of its subsidiaries as may change from time to time.

KiwicloudIT Information – all information, content and data about KiwicloudIT, its business and its other customers, KiwicloudIT’s Intellectual Property, and all information developed by KiwicloudIT while providing the Goods and Services.

KiwicloudIT Infrastructure – the hardware, software and Operating Systems used by KiwicloudIT to provide the Service. This does not include any applications.

KiwicloudIT’s Intellectual Property – all intellectual property in and associated with the business of KiwicloudIT including trade names, trade marks, discoveries, systems, specifications, trade secrets, know-how, computer software, designs, logos, domain names, websites, drawings, copyright materials and related registrations.

KiwicloudIT Portal – the KiwicloudIT website(s) designed to enable the Customer to use the Services and view Account information.

User – anyone who is permitted by the Customer to use or access the Service purchased by the Customer.

User Acceptance Test(s) / Handover – the test the Customer carries out to confirm the deployed services are correct and fit for purpose. After 5 days it is assumed tests have been completed.

User ID – any IDs, user names, personal identification numbers and passwords in relation to the Customer’s access to the Operating System.

VM – a virtual machine instance consisting of virtual CPUs, virtual memory and virtual local storage.

14.2 Interpretation

In the interpretation of these General Terms, unless the context otherwise requires: a) references to the parties include their respective executors, administrators, successors and permitted assigns; b) references to a person include any form of entity; c) words in the singular include the plural and vice versa; d) words importing one gender include the other genders; e) any obligation not to do anything includes an obligation not to suffer, permit or cause that thing to be done; and f) headings have been inserted for convenience only and will not affect the construction of the Agreement.