1. THESE TERMS
1.1 These terms and conditions set out the basis on which Digital Island provide products and services to their customers.
1.2 Additional terms may apply to the customer’s use of some of Digital Island’s services. If so, Digital Island will tell the customer what those terms are. If there is any conflict between these terms and any additional terms, the additional terms will prevail.
2. INTERPRETATION
2.1 “customer” means the Digital Island customer who is liable for the costs under this agreement.
“Digital Island” means Digital Island Limited, Level 3, 8 Nugent Street, Grafton, Auckland.
“Equipment” means any equipment supplied by Digital Island to the customer from time to time.
“Final Proposal” means the document signed by the customer that sets out the services to be provided by Digital Island, the length of the contract and the cost of the services.
“Mobile Device” means any mobile hardware other than SIM cards (including but not limited to handsets and accessories) that the customer orders from Digital Island from time to time.
“Services” means any or all of the services that Digital Island have agreed to provide the customer as set out in the Final Proposal and as varied from time to time.
3. COMMENCEMENT OF AGREEMENT
3.1 This agreement commences from the earlier of the date specified in the Final Proposal and the date the services are commenced/installed and continues until it is terminated pursuant to this agreement.
4. DIGITAL ISLAND’S SERVICES
4.1 If required and at the discretion of Digital Island, Digital Island may sub-contract other carriers to provide part of any Service.
4.2 Digital Island will use all reasonable endeavours to make the Services available to the customer at all times. However, due to the nature of telecommunications and the reliance placed on networks and services owned by other people, Digital Island cannot guarantee that the Services will always be available or fully functioning. If the Services are unavailable for any reason Digital Island will endeavour to restore the Services as soon as possible. If the customer needs assistance in using the Services they should call the support centre on 0800 999 010.
4.3 While Digital Island takes all reasonable security precautions, due to the nature of telecommunications services Digital Island cannot guarantee the confidentiality of any calls or transmissions the customer makes using the Services.
4.4 Digital Island may suspend or restrict any of the Services at any time if:
(a) Digital Island considers it necessary to protect or maintain their network or anyone else's network; or
(b) Digital Island believes that the customer has breached any of their terms and conditions. Network charges will still apply during the period of any suspension, and if the Services are suspended because of a breach by the customer, Digital Island may charge the customer a reconnection fee if the Services are recommenced.
5. CHARGES
5.1 Digital Island will invoice the customer monthly for the Services. The customer must pay the total amount on the invoice on or before the 20th day of the month following the month the invoice is dated, regardless of whether the customer or someone else used the Services.
5.2 If the customer does not pay any invoice on the due date, Digital Island may:
(a) charge the customer interest on the overdue amount from the due date until the date the customer pays, at the rate of 4% per month; and
(b) withhold any rebate, discount or similar incentive which would otherwise be available to the customer; and
(c) suspend or restrict the customer’s service; and
(d) recover from the customer any debt recovery and/or litigation costs; and
(e) require the customer to put in place a direct debit or credit card payment arrangement for payment of the invoices
5.3 Usage based charges (such as toll calls) are payable in arrears.
5.4 Digital Island may vary the charges from time to time. If any charge increases, Digital Island will give the customer reasonable notice of the increase.
5.5 If the customer believes the invoice contains a mistake, the customer must advise Digital Island in writing within 21 days of the date of the invoice. The customer may only withhold payment of the disputed part of the invoice. If Digital Island agrees there has been a mistake on the invoice, Digital Island will correct it immediately. If Digital Island finds that no mistake has been made, the customer must pay the invoice as soon as possible without set-off or deduction and if it is past the due date the customer will pay any late penalty fees that it may have incurred.
5.6 Digital Island may at its discretion impose a credit limit on the customers account.
5.7 If the customer breaches any term of this agreement, and Digital Island incurs costs as a result, the customer will be liable for those costs and must reimburse Digital Island on demand.
5.8 All pricing shown in quotations and on the Final Proposal are exclusive of GST.
5.9 All charges are shown in New Zealand Dollars (NZD) unless otherwise stated.
6. USING DIGITAL ISLAND’S SERVICES
6.1 The customer agrees that they will not use the Services or permit the Services to be used in any way which:
(a) breaks any laws or infringes anyone’s legal rights;
(b) could interfere with or damage Digital Island’s network, any other operator’s network, or another customer’s enjoyment of Digital Island’s services;
(c) is malicious, obscene or offensive; or
(d) could introduce anything (including any virus) that may harm Digital Island’s or any third party equipment.
6.2 The customer agrees that it will:
(a) comply with any reasonable restrictions imposed or directions given by Digital Island regarding the use of the Services;
(b) ensure that all information the customer gives Digital Island is correct. Where any information the customer has previously supplied to Digital Island changes (such as contact details) the customer must provide Digital Island with updated information as soon as possible;
(c) not use any handset or other equipment that is not specifically approved by Digital Island for use on its network;
(d) indemnify Digital Island against any legal action taken against it in connection with the customer’s use of the Services;
(e) not use the Services to spam, mail bomb, publish any offensive or unlawful material, harvest information about others, create a false identity, transmit or upload material which breaches any third party right or similar activity;
(f) keep confidential any password or PIN number which is used by the customer to access the Services. Digital Island recommends that the customer change these on a regular basis for security reasons. The customer must change their password or PIN number if asked to do so;
(g) authorise Digital Island to act on any verbal instructions the customer gives it in relation to the Services. The customer should notify Digital Island which of their staff are authorised to make changes to their account;
(h) allow Digital Island employees and contractors access as and when they reasonably require (and the customer must obtain any necessary consents to provide such access) if Digital Island needs to install equipment and carry out work at the customers premises. If the customer does not allow Digital Island employees and contractors to access their premises, the customer’s ability to use the Services may be adversely affected; and
(i) make sure nothing is connected to Digital Island’s network unless it has a Telepermit or is otherwise approved by Digital Island. This helps to ensure that the customer’s Mobile Device does not damage the network, although this does not mean that the network will always remain compatible with the customer’s Mobile Device.
7. MOBILE SERVICES
7.1 This clause applies if Digital Island provides mobile services to the customer.
7.2 If the customer downgrades or cancels the mobile pricing plan on any of their mobile Services, then the customer may be liable to pay early termination charges as described in clause 13.2 below in respect of those mobile Services.
7.3 Mobile Voice Plans:
(a) If the customer’s mobile voice plan includes any bundled minutes and the customer does not use all of their bundle of minutes in any month the unused portion at the end of the month cannot be carried forward or redeemed. Bundled minutes do not include calls to international numbers, 0900 calls, operator assisted and directory related services and calls to special numbers.
(b) All mobile to land (national and international) and mobile to mobile calls made within New Zealand are calculated to the nearest second at 1/60th the appropriate per minute rate, then rounded up to the nearest cent. There is a one minute minimum charge for all calls.
(c) All international roaming calls, operator assisted calls and calls to 0900 numbers are charged on a minute plus minute basis.
7.4 Mobile Data and Mobile Group Data:
(a) Data used in each data session will be charged against the customer’s data plan allowance in whole 10KB packets, with part packets rounded up. Megabyte usage is based on the amount of data transferred (both uploading and downloading).
(b) If the customer’s mobile data or group data plan includes any bundled megabytes, and the customer does not use all of their bundle of megabytes in any month the unused megabytes at the end of the month cannot be carried forward or redeemed.
(c) All mobile to land (national and international) and mobile to mobile calls made within New Zealand are calculated to the nearest second at 1/60th the appropriate per minute rate, then rounded up to the nearest cent. There is a one minute minimum charge for all calls.
(d) All international roaming calls, operator assisted calls and calls to 0900 numbers are charged on a minute plus minute basis.
7.5 BlackBerry Data:
(a) Data used in each data session will be charged against the customer’s data plan allowance in whole 5KB packets, with part packets rounded up. Megabyte usage is based on the amount of data transferred (both uploading and downloading).
(b) If the customer’s BlackBerry plan includes any bundled megabytes, and the customer does not use all of their bundle of megabytes in any month the unused megabytes at the end of the month cannot be carried forward or redeemed.
(c) All mobile to land (national and international) and mobile to mobile calls made within New Zealand are calculated to the nearest second at 1/60th the appropriate per minute rate, then rounded up to the nearest cent. There is a one minute minimum charge for all calls.
7.6 The customer acknowledges that the mobile Services use radio signals and that the mobile Services may be interrupted due to interference to those radio signals. Mobile Service quality will vary with geography and other factors.
7.7 The customer acknowledges that access to the mobile Services is dependant upon their equipment and hardware. If the products used by the customer do not support all of the mobile Services, Digital Island are under no obligation to ensure the customer’s access to those Mobile Services.
7.8 All mobile Services are subject to the fair use policy set out in this clause:
(a) The customer agrees that their use of the mobile Services must be fair, reasonable, and not excessive, as reasonably determined by Digital Island from time to time by reference to the average customer profiles and estimated customer usage of the Digital Island mobile Services.
(b) If the customer’s usage of the mobile Services materially exceeds estimated use patterns over any day, week or month (or other period of time as determined by Digital Island) or is inconsistent with normal usage patterns, then the customer’s usage may be excessive or unreasonable.
(c) Digital Island’s mobile Services and mobile voice plans are offered for individual and private and personal use by the customer only.
(d) No mobile Service allows for activities aimed at making profit or reselling the mobile Service or using the mobile Services in an unfair or excessive way and any such use of the mobile Services is a breach of this agreement.
(e) For the avoidance of doubt, fair use of the Digital Island mobile Services excludes activities such as auto-dialling, continuously call forwarding, tele-marketing, call centres and use of Cellular Trunking Units (including SIM boxes and GSM gateways).
(f) If Digital island is of the view that the customer’s use of the mobile Services is excessive or unreasonable, it may contact the customer to advise them. If the customer does not alter their usage of the mobile Services after a request to stop, Digital Island may, without further notice, charge the customer for the excessive and/or unreasonable element of the customer’s usage or suspend, modify or restrict use of the customer’s mobile Services or withdraw access to the mobile Services.
8. PROVISION OF MOBILE DEVICE
8.1 This clause applies if Digital Island provides the customer with a Mobile Device.
8.2 Upon delivery of the Mobile Device, risk in the Mobile Device will pass to the customer.
8.3 Upon payment of the charges for that Mobile Device or, in the case of a Mobile Device that Digital Island has agreed to provide the customer free of charge, upon delivery of the Mobile Device to the customer, title in the Mobile Device will pass to the customer.
8.4 If all or any part of the Mobile Device is under a manufacturers’ warranty, Digital Island will endeavour to give the customer the benefit of the warranty. Where this is not possible, Digital Island will hold the warranty on behalf of the customer. Digital Island will have no obligation to negotiate any warranty or indemnity on behalf of the customer with respect to any Mobile Device (or any associated software).
8.5 If the customer makes a claim on any warranty that is held by Digital Island on behalf of the customer, the customer must promptly return the defective Mobile Device to Digital Island with any accessories and all original packaging, together with a copy of the invoice and a written claim specifically identifying the defect(s) to the Digital Island offices at Level 3, 8 Nugent Street, Grafton, Auckland.
8.6 If any part of the Mobile Device requires repair or replacement because it is lost or damaged and that repair or replacement is not covered by any warranty referred to in clause 8.4 above, or the customer places an order for an additional Mobile Device, then the charges for the repair or replacement and/or additional Mobile Device will be in accordance with Digital Island’s then current standard charges and the customer agrees to pay all such applicable charges.
8.7 The customer acknowledges that Digital Island is not responsible for any loss of data or other information that may occur in the course of or in connection with the repair of any Mobile Device. Digital Island recommends that the customer backs up all data on all item(s) of Mobile Device before those items are sent to Digital Island for repair or replacement.
8.8 The customer acknowledges that Digital Island is not under any obligation to ensure the continued availability of the make and model of any Mobile Device provided to the customer by Digital Island.
8.9 The customer agrees not to resell, lease or rent any Mobile Device to any other person.
8.10 The customer acknowledges that access to the mobile Services is dependant upon their equipment and hardware. If the products used by the customer do not support all of the mobile Services, Digital Island are under no obligation to ensure the customer’s access to those Mobile Services.
8.11 The customer must not remove any trademarks or logos from any part of the Mobile Device.
8.12 All SIM cards belong to Digital Island or its service providers and the customer may not sell, assign, transfer, encumber or otherwise deal in any SIM card. If the customer fails to return the SIM card within 30 days after disconnection, Digital Island may charge you for the SIM card.
9. INTERNET SERVICES
9.1 This clause applies if Digital Island provides internet services to the customer.
9.2 Digital Island may without notice to the customer remove any emails that remain on their servers for more than 90 days. The customer is responsible for downloading from Digital Island’s email server to the customer’s computer any email that they wish to keep.
9.3 The customer must not knowingly transmit any virus or other disabling feature or use the Services in a manner which is likely to or is intended to damage or compromise the security of Digital Island’s network or anyone else's network.
9.4 The customer must use the internet services in a reasonable and responsible manner and only use the internet services for the purposes that they are provided for.
9.5 The customer must not have more than one connection to the Service using the customer’s user ID at any time. If for any reason the customer does have simultaneous connections Digital Island reserves the right to charge the customer $5.00 per hour (or part hour) for each additional connection.
9.6 Digital Island is not liable for any inaccurate, illegal or offensive information which may be obtained from the internet from the customer’s use of the Services.
9.7 Digital Island is not liable for any viruses or other harmful code that the customer may download via the internet using the Services.
9.8 The customer will be responsible for protecting the customer’s computer against any virus, unauthorised access or spam and to the extent permitted by law, Digital Island accepts no liability in relation to any virus, unauthorised access or spam experienced by the customer.
9.9 The customer will indemnify Digital Island against all liability, losses and costs that Digital Island incurs:
(a) through the customer’s failure to do any of the above;
(b) through the customer’s failure to perform any other obligation that it may have under this agreement; or
(c) as a result of any claim made against Digital Island by a third party as a result of the customer’s use of the internet services, including as a result of material that the customer generates or disseminates by using the internet services.
10. DATA SERVICES
10.1 This clause applies if Digital Island provides data services to the customer.
10.2 Implementation of a data solution will be project managed through to completion. It is expected the customer’s IT department or IT contractor will provide the necessary resources to work with Digital Island during the project in order to ensure a timely and seamless implementation.
10.3 Although initial feasibility results may indicate the data service is available at a particular speed, it is possible that upon physical installation the speed anticipated or quoted may not be available. If this is the case then Digital Island may need to revisit the product and pricing and renegotiate the proposed solution.
10.4 Some data services installations are reliant on existing cabling from a third party telecommunications company’s demarcation point (often in basement or cabling room of building) through to the desired termination/delivery point. If this building cabling does not exist or is not of sufficient quality, the customer may be required to cover the cost of new building cabling to the desired termination/delivery point.
10.5 Data solutions with routers will include a managed router at each site and initial configuration of each router. Additional router configuration required after initial installation will be charged at $150 + GST per hour.
10.6 All Local Area Network configuration and Internet security, including supply of a suitable firewall appliance, is expressly the customer’s responsibility.
10.7 Managed router(s) will be configured and then sent to the customer’s site. Either the customer or the customer’s nominated IT contractor shall plug the router in to the pre-installed, labelled jack point. If the customer does not wish to do this, an onsite installation can be arranged for an additional $150 + GST per site.
10.8 In the unlikely event of a faulty router, the customer shall inform Digital Island immediately and return the faulty router. Digital Island will arrange for a replacement router to be configured and sent out via courier as quickly as is commercially practicable.
10.9 The Digital Island SIP Trunk product has been tested with most leading PBX products. However Digital Island does not guarantee compatibility to any specific product or future software release. It is the responsibility of the PBX vendor to perform compatibility testing. Digital Island will assist where it considers it appropriate with this testing.
10.10 Digital Island takes all reasonable precautions to ensure that the SIP Trunk solution is secure, but as the security of the PBX is beyond their control, Digital Island takes no responsibility if the PBX is compromised and fraudulent calling is generated.
10.11 Digital Island SIP Trunks are not recommended for services such as Eftpos, faxing and alarm monitoring. Digital Island can arrange a separate analogue phone line for these services.
11. SUPPLY OF EQUIPMENT
11.1 Digital Island may from time to time supply Equipment to the customer in connection with the Services. Unless agreed otherwise, the customer will have no ownership rights to any equipment supplied by Digital Island.
11.2 The customer must not damage or interfere with the Equipment.
11.3 If the Equipment is lost or damaged while located on the customer’s premises, the customer shall pay the charges of Digital Island for repairing or replacing it as required.
11.4 Upon termination of this agreement, the customer shall return all Equipment to Digital Island within 30 days or the customer shall pay the cost of the Equipment, as determined by Digital Island.
12. PHONE NUMBERS
12.1 Unless Digital Island has agreed otherwise, all addresses, phone numbers, electronic addresses and other codes allocated to the customer remain the property of Digital Island.
12.2 Digital Island may be required by law or for operational reasons to change the phone number(s) or electronic addresses allocated to the customer. If this is necessary, Digital Island will give the customer as much notice as reasonably possible of any such change.
13. TERMINATION
13.1 If there is no fixed term contract in place or the fixed term has expired, Digital Island may cease providing any Service by giving the customer not less than 30 days’ written notice.
13.2 The customer may give up any Service or terminate this agreement at any time by giving Digital Island not less than 30 days’ notice in writing and the customer must pay Digital Island (in each case within 30 days of the termination of the relevant Service):
(a) the charges throughout the 30 day notice period even if the fixed term has expired; and
(b) for any costs that Digital Island has paid (if any) for transferring the customer from one telephone company to another if the customer terminates any Service within a period of three months or less from the commencement of the Services; and
termination of Services other than mobile and data
(c) an early termination fee of 60 day’s normal charges for all terminated services (excluding mobile and data, which are dealt with below), including the current month; and
termination of data services
(d) for an early cancellation of a data connection, Digital Island’s early termination fee of 75% of unpaid charges for the remainder of the term; and
termination of mobile services
(e) for an early cancellation of a mobile connection, Digital Island’s early termination charges in accordance with the table below:
|
|
Period remaining on contract term |
|
Average monthly spend* |
1-6 months |
7-12 months |
13-18 months |
19-24 months |
25-36 months |
|
$0 - $100 |
$150 |
$250 |
$350 |
$450 |
$650 |
|
$100 - $200 |
$300 |
$400 |
$500 |
$600 |
$800 |
|
$200 - $300 |
$400 |
$550 |
$650 |
$750 |
$950 |
|
301 + |
$500 |
$700 |
$900 |
$1100 |
$1500 |
* Average spend per mobile connection from up to three months previous billing.
(f) any early termination charges that are payable under the Final Proposal; and
(g) any outstanding charges and other monies payable by the customer for the Services.
13.3 Digital Island may, without liability to the customer, terminate the provision of any Service and shall endeavour to provide the customer with reasonable notice in writing if:
(a) Digital Island determines that the relevant Service is not commercially viable; or
(b) a third party service provider or carrier does anything that prevents Digital Island from supplying that service; or
(c) Digital Island is unable to provide the relevant Service; or
(d) Digital Island decides to withdraw the relevant Service from general availability.
13.4 Digital Island may terminate this agreement, or the provision of any Service to the customer, immediately if:
(a) the customer breaches any term of this agreement; or
(b) Digital Island reasonably believes that the customer has supplied incorrect or misleading information; or
(c) the customer (or the directors or principals) goes into liquidation, bankruptcy or receivership (or it appears that any of these events are likely to happen); or
(d) the customer has a receiver or statutory manager appointed over any or all of their assets; or the customer is removed from the Companies Register (other than as a result of a solvent amalgamation), dissolved; or
(e) the customer dies.
13.5 If this agreement is terminated for any reason the customer must pay for the Services provided up to the date of termination. If the customer has prepaid for the Service, no refund is payable to the customer on termination unless Digital Island agree otherwise.
14. CONSUMER GUARANTEES ACT AND LIMITATION OF LIABILITY
14.1 The customer agrees that, if they are using the Services for the purposes of a business, the Consumer Guarantees Act 1993 statutory guarantees do not apply to their connection or the Services to the maximum extent permitted by the legislation. The customer agrees (whether the customer is using the services for the purposes of a business or otherwise) that Digital Island excludes and do not have any liability of any kind (whether in contract tort or otherwise) to the customer or anyone claiming through the customer, relating to any economic loss, loss of profits or revenue, loss of data, lost business or missed opportunities, wasted expenditure or savings the customer might have had or any form of indirect or consequential loss or damage whatsoever arising from:
(a) the customer’s connection to the Digital Island network or the content or supply of any Services;
(b) the customer’s use of the Mobile Device;
(c) the failure, interruption or delay in the supply of, any Services or any part of them or any negligence in this regards;
(d) the fitness of all or any of the Services or Equipment for any particular purpose;
(e) errors in or omissions from any directory listing;
(f) the inaccurate or incomplete transmission of any call or any email;
(g) any other matter which relates to this agreement.
14.2 Digital Island’s liability to the customer under or in connection with this agreement, for any loss or damages which the customer incurs as a direct result of Digital Island’s failure to meet any of it’s obligations under this agreement or for any negligence by Digital Island in relation to the supply of the Services, will be limited to the value of 3 average months’ Services used by the customer under this Agreement for all events occurring in any 12 month period.
14.3 If the customer uses another service provider's services during any period when the Services are not fully operational, Digital Island is not liable to pay or reimburse the customer for any amount the customer may be charged by that service provider.
14.4 No other network operator and/or third party supplier (including their officers, employees, contractors and agents) will be liable to the customer for loss or damage of any kind arising from the customer’s use of the Services. This clause creates a right and benefit that other network operators and/or suppliers can enforce as a defence to any claim.
14.5 Apart from the warranties expressly given to the customer in this agreement, all other warranties, express or implied, are excluded to the extent permitted by law.
15. PRIVACY
15.1 The customer may at times supply Digital Island with personal information, for example, when the customer applies to become a customer of Digital Island. Digital Island may also obtain personal information from the customer’s use of the Services.
15.2 The customer agrees that Digital Island may:
(a) use the customer’s personal information and, where Digital Island deems appropriate, disclose it to third parties if this is required for it to provide the customer with the Services; for credit checking and collection; and/or to communicate with the customer about Digital Island’s current and future services;
(b) share information about the customer and their use of Services with other third party suppliers to provide the Services and to comply with interception, capability, security, fraud investigation co-operation or emergency response requirements; and
(c) Digital Island’s third party suppliers may use information about the customer and their use of the Services for the purposes described in (b) above.
15.3 Any personal information Digital Island collects is kept at their offices at Level 3, 8 Nugent Street, Grafton, Auckland. The customer is entitled to see any information Digital Island holds about them and to request that any incorrect information be corrected.
15.4 Digital Island may record or monitor calls between it and the customer to verify information and for staff training purposes.
16. CHANGING THESE TERMS
16.1 Digital Island may vary these terms from time to time and will endeavour to give the customer 21 days' notice. Digital Island will inform the customer of any variation to the terms and conditions either by email, post, notification in major daily newspapers or via Digital Island’s website. The latest terms and conditions are available for viewing on Digital Island’s website www.digitalisland.co.nz.
17. SERVICES PROVIDED BY THIRD PARTIES OVER THE NETWORK
17.1 Digital Island takes no responsibility for the accuracy, completeness or currency of any content or material or services that the customer may access or have provided to the customer by a third party through the Services or for any charges that the customer may incur by their use of such content, materials or services.
17.2 Digital Island are not responsible for:
(a) ensuring that the information the customer accesses or makes available through using the Services will be private or secure or free from viruses or other harmful things;
(b) any transactions the customer enters into through use of the Services or any dealings between the customer and any advertisers or other third parties using the Services or the customer’s participation in any promotions;
(c) any delay in receipt of information the customer selects for transmission to their mobile phone; and
(d) fixing any faults in any part of the Internet beyond Digital Island’s network.
18. NOTICES
18.1 If the customer wishes to notify Digital Island of anything the customer can do so by emailing customer.services@digitalisland.co.nz or by calling 0800 999 010. Digital Island may require the customer to confirm in writing any advice given over the phone.
18.2 If Digital Island wishes to communicate with the customer or notify them of anything it may do so by post, phone, facsimile or email to the last known address or number held for the customer.
19. PERSONAL PROPERTIES SECURITY ACT 1999 (PPSA)
19.1 The customer may require Digital Island to provide certain equipment to them to enable the customer to use the Services.
19.2 If Digital Island provides any equipment to the customer, the customer agrees that:
(a) they will not sell, lease, dispose of, or allow any other person to take a security interest in the equipment; and
(b) Digital Island can register a financing statement on the Personal Property Securities Register (PPSR) to reflect their interest in the equipment.
19.3 Where Digital Island exercises its right to register a financing statement, the customer also agrees to:
(a) provide such information as Digital Island reasonably requests to enable it to register a financing statement on the PPSR;
(b) inform Digital Island immediately in writing if the customer intends to change their name, address or contact details; and
(c) to the extent permitted by law the customer waives their rights under Part 9 (Enforcement of Security Interests) of the PPSA.
20. FORCE MAJEURE
20.1 Digital Island will not be liable for any delay or failure of the Services or for any loss or damage from such delay or failure to the extent that it was caused, in whole or part, by an act of God, war, terrorism, civil disobedience, riots, strike, industrial stoppage or unrest, fire, volcanic eruption, earthquake, shortage of suitable labour, materials, equipment or energy or any other event beyond Digital Island’s control.
21. SEVERABLE CLAUSES
21.1 If for any reason any clause of this agreement is deemed to be unenforceable, all remaining clauses in this agreement shall remain binding on the customer.
22. WAIVER
22.1 If Digital Island fails or delays in exercising any right or power under this agreement, this will not be a waiver of that right or power. Any failure or delay will not prevent Digital Island from exercising that right or power in the future.
23. CONFLICT
23.1 If there is any conflict or any inconsistency between the terms contained in these Standard Terms and the Final Proposal, the Final Proposal will take precedence.
24. ASSIGNMENT
24.1 The customer must not assign their rights under this agreement without prior written consent of Digital Island. Digital Island may assign its rights and obligations under this agreement to anyone else without the customer’s consent and will notify the customer if it does so.
25. NEW ZEALAND LAW
25.1 These terms are to be interpreted in accordance with the laws of New Zealand. Any dispute regarding the provision of Digital Island’s services under these terms is to be determined.
