We, Cyclone (we, us, our) agree to provide our Services to Customer (you, your) and you agree to use our Services, on the terms set out below (Terms).
1. TERMS
In these Terms, unless the context requires otherwise:
Agreement means the agreement under which we provide the Services to you, including these Terms.
Applicable Law means:
- any applicable statute as amended from time to time and any regulations, orders in council, standards or other instruments issued or made under or pursuant to that statute from time to time and legislation passed in substitution for that statute; and
- any applicable regulation, condition, direction, decision, notification, guideline, code of practice or order made by the Telecommunications Commissioner, the Commerce Commission, the Privacy Commissioner, the TCF under Schedule 2 of the Telecommunications Act 2001 or any other regulatory body having applicable jurisdiction, and whether or not expressed to be legally binding.
Brand means the name, logo, trade mark or other brand material of any entity.
Data means all data, content, and information (including personal information) owned, held, used or created by you or on your behalf that is stored or transmitted using, or inputted into, the Services.
End User means a person who is the ultimate recipient of a Service.
Fair Use Policy means any fair use policy for the Service notified to you by us in writing, as updated by us from time to time.
including and similar words do not imply any limit.
Intellectual Property Rights includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
Network means the telecommunications and data networks that we or the Service Provider uses to provide the Services to you and to other customers, including any network with which we or a Service Provider interconnects.
Network Operator means a network operator as defined in the Telecommunications Act 2001 and includes any entity with whom such entity has:
- an interconnection agreement or arrangement (directly or indirectly) to provide for the transfer of data or voice communications generated by, or destined for you or End Users; or
- an arrangement to resell services.
Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
a party includes that party’s permitted assigns.
a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity.
personal information means information about an identifiable, living person.
personnel includes officers, employees, contractors and agents.
Service Provider means a service provider that provides us with the Services or services upon which the Services are dependent, including those service providers’ service providers.
Underlying Systems means our or our Service Providers’ IT solutions, systems, and Networks (including software and hardware) used to provide the Services, including any third party solutions, systems, and Networks.
Your Equipment means the equipment that you or your End Users own or possess and use in connection with the Services.
Words in the singular include the plural and vice versa.
A reference to a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them.
2. TERMS OF USE
2.1 You and your End Users must:
a. comply with the Fair Use Policy and any other specific terms of use or policy relating to the Services that we notify you of from time to time;
b. not use or permit the Services to be used in any way which is illegal or abusive, which constitutes harassment, which causes harm or damage of any sort;
c. not use or permit the Services to be used in any way that could interfere with or damage the Network;
d. not attempt to undermine or in any other way compromise the security or integrity of the Underlying Systems;
e. not use, or misuse, the Services in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use our, the Service Provider’s or any Network Operator’s services;
f. follow our and the Service Provider’s reasonable instructions (as notified to you from time to time) about the use of the Services, including complying with any reasonable technical specifications specified by the Service Provider from time to time;
g. use the Services only for the purpose for which they are provided (as notified to you in writing);
h. not use the Services in a manner, and not to transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading;
i. have appropriate security policies and controls in place to prevent interference with or damage to the Services, the Network, or another customer’s use of our, the Service Provider’s or any Network Operator’s services; and
j. not resell the Services.
2.2 If you or any of your Ends Users contravene a Fair Use Policy:
a. we or the Service Provider may take steps to regulate Network traffic and minimise bandwidth congestion (which may include slowing upload or download speeds of the Service). We will notify you before taking any steps under this clause, and we will notify you as soon as practicable after becoming aware that the Service Provider has taking step under this clause; and
b. if repeated breaches occur, we may, by notice to you, require you to migrate to another Service or modify your use of the Service to meet the Fair Use Policy. You must comply with such requirement within 30 days of receiving our notice. If you fail to comply, we or the Service Provider may terminate or suspend the relevant Service immediately without further notice.
2.3 If you or your End Users are given a user ID, you must, and must ensure that your End Users, keep that user ID secure and:
a. not permit any other person to use that user ID, including not disclosing or providing it to any other person; and
b. immediately notify us if you or any of your End Users become aware of any disclosure or unauthorised use of that user ID, by sending an email to [insert email address].
3. YOUR EQUIPMENT
3.1 You will ensure that all of Your Equipment that is connected to the Network and/or to equipment that we or the Service Provider has provided to you in connection with the Services has all certifications required by the Service Provider and is installed in accordance with our and the Service Provider’s specifications.
3.2 You agree to follow our and the Service Provider’s reasonable instructions about modifications that you may need to make to Your Equipment so that you can use the Services.
3.3 The Service Provider will not be responsible for any harm you suffer from a virus or other malware which infiltrates Your Equipment, whether it was transmitted via the Services or otherwise.
4. SERVICE PROVIDERS, NETWORK OPERATORS AND OTHER SUPPLIERS
4.1 To the maximum extent permitted by law, no Service Provider or any other third party Network Operator or supplier (including their respective personnel) has any liability to you or your End Users for loss or damage of any kind arising from your and your End Users’ use of the Services and the Network, including your and/or End Users’ access to and use of any third party’s site or Service Provider’s or third party Network Operator’s networks. To the extent a Service Provider’s liability cannot be excluded but can be limited, its aggregate liability is limited to NZD100. This clause is enforceable by each Service Provider, Network Operator and supplier in terms of the Contracts and Commercial Law Act 2017;
4.2 You agree that neither the Service Provider nor any other third party Network Operator or supplier provides, grants or confers any benefit right or privilege on you or End Users.
5. INTELLECTUAL PROPERTY
5.1 All title to, and all Intellectual Property Rights in, the Services, and all Underlying Systems is and remains the Service Provider’s property (and the Service Provider’s licensors’ property).
5.2 You and your End Users must not use the Service Provider’s Brand or the Brand of any of the Service Provider’s licensors, without the Service Provider’s or the relevant licensor’s prior written consent, and where consent has been given, you and your End Users’ (as applicable) use must be consistent with the terms of that consent.
6. INFORMATION
6.1 You and your End Users must ensure that any information provided to us or the Service Provider in connection with the Services is, to the best of your or your End User’s knowledge and belief, correct and complete. You must promptly update that information as required so that the information remains current, correct and complete.
6.2 We may share information about you and your End Users with the Service Provider, to the extent necessary for the Service Provider to:
a. provide the Services;
b. monitor and confirm:
i. our compliance with our agreement with the Service Provider; and
ii. your compliance with the Customer Agreement; and
c. hold, use and disclose information as set out below.
6.3 The Service Provider may collect and hold information about you and your End Users (including any Data) to the extent necessary to perform its obligations or exercise its rights under our agreement with the Service Provider and, to the extent such information is personal information, in accordance with the Privacy Act 2020, the Telecommunications Information Privacy Code 2020 and any other Applicable Law. Such information may be obtained from you or generated within the Network when you or anyone else uses the Services.
6.4 The Service Provider may use the personal information it collects about you and your End Users for the purposes of:
a. providing and improving the Services;
b. dealing with requests, enquiries or complaints and other customer care related activities;
c. carrying out any activity in connection with a legal, governmental or regulatory requirement on the Service Provider, or in connection with legal proceedings, crime or fraud prevention, detection or prosecution;
d. carrying out activities connected with the running of the Service Provider’s business such as internal reporting, personnel training, quality control, network monitoring, testing and maintenance of computer and other systems and in connection with the transfer of any part of the Service Provider’s business; and
e. identifying potential threats, such as hacking and virus dissemination and other security vulnerabilities.
6.5 The Service Provider may share the personal information it collects about you and your End Users with:
a. its personnel, suppliers and Network Operators for the purposes set out in clause 6.4;
b. persons to whom the Service Provider may be required to pass that personal information by reason of legal, governmental or regulatory authority including law enforcement agencies and emergency services; and
c. any person or organisation as authorised by the Privacy Act and/or the Privacy Code, including with the relevant individual’s prior authorisation, or as authorised by any other Applicable Law.
6.6 You grant the Service Provider, and will procure for the Service Provider, the right to collect, store, process and use, on a de-identified and/or aggregated basis, information generated from your and your End Users’ use of the Services and the Network. This information will be collected, stored, processed and used for the Service Provider’s own purposes including:
a. enhancing or developing the Services, the Service Provider’s other products and services and/or the Network; and
b. performing data analysis, machine learning and/or analytics (including providing insights and information to third parties).
6.7 You consent, and you confirm that your End Users have consented, to us sharing information with the Service Provider, and the Service Provider holding, using and disclosing information about you and your End Users as set out above.
6.8 If you disclose to us any personal information about any other person, you confirm that:
a. you are authorised by that person to make that disclosure for the purposes described above;
b. that person has agreed that we and the Service Provider can collect, retain, use and disclose any personal information about him or her as set out above; and
c. that person understands that he or she may ask to see the personal information that we or the Service Provider holds about him or her at any time and he or she may ask us or the Service Provider to correct any errors.
6.9 To the extent Data contains personal information, you must obtain all necessary consents from the relevant individual to enable the Service Provider to collect, use, hold and process that information in accordance with these Terms.
7. SERVICE CONTINUITY
7.1 You agree that a Service Provider or its nominated representative may contact you and your End Users, in circumstances where a Service Provider terminates the Services due to our breach of our agreement with the Service Provider or our insolvency, and you (including your End Users) have not been transferred to a replacement service.
7.2 You irrevocably agree that we may at any time assign or novate our rights and obligations in connection with any or all of the Services to a Service Provider.