Introduction.
These terms form the basis of the Connectivity Service(s) provided by “TribeConnect” (“Tribe”) to your business (“you”) and apply to all products and services Tribe supplies to your business whether as principal or agent. Tribe’s agreement with your business also includes any application order forms or order submissions, which your business completes and provides to Tribe via email or via any portal access provided to you.
These Connectivity Service(s) Terms and Conditions were last updated on 22 August 2024.
1. Application of these Terms
1.a. These Terms set out the Connectivity Services terms on which we provide Services to our customers.
1.b. Capitalised and other defined terms used in these Connectivity Service Terms are defined below.
1.c. Additional terms apply to:
1.c.i. your use of the Services, as set out in the Our proposal to you for the relevant Service; and
1.d. Tribes Standard Terms & Conditions, these Connectivity Services Terms, any “Managed Technology Support & Cybersecurity Services Agreement” and any “Our Proposal” to you schedule, together make up the Agreement between you and us.
1.e. If there is any conflict between the documents comprising the Agreement, unless otherwise agreed in writing, those documents have the following descending order of precedence:
1.e.i. The Managed Technology Support & Cybersecurity Services Agreement
1.e.ii. the applicable “Our Proposal” to you schedule;
1.e.iii. these Connectivity Service Terms; and
1.e.iv. the Standard Terms & Conditions.
1.f. Despite clause 1(e):
1.f.i. the Service Provider Flow Through Terms and any Special Conditions have precedence over any other documents or sections of documents comprising the Agreement; and
1.f.ii. if there is any conflict between the Service Provider Flow Through Terms and any Special Conditions, the Service Provider Flow Through Terms have precedence.
1.f.iii. Service Provider Flow Through Terms depend on the type and location of service we provide to you.
2. Interpretation
2.a. In the Agreement:
2.b. Agreement means these Connectivity Services Terms, the Standard Terms & Conditions, the applicable “Our Proposal” to you schedules, and any Special Conditions that may be agreed from time to time, including, to avoid doubt, the Service Provider Flow Through Terms.
2.c. Agreement Start Date means the start date set out in the applicable “Our Proposal” to you schedule.
2.d. Agreement Commitment Term means the agreement minimum term (if any) set out in the applicable “Our Proposal” to you schedule
2.e. Applicable Law means:
2.e.i. 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
2.e.ii. 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.
2.f. Charges means our charges for the Services, which may include fixed charges, usage charges, additional fees and/or one-off fees, as set out in our Price Book from time to time, in any Special Conditions, or as otherwise agreed in writing between the parties.
2.g. Confidential Information means any information that is not public knowledge and that is obtained from the other party in the course of, or in connection with, the provision and use of the Services. Our Confidential Information includes Intellectual Property owned by us (or our licensors) and pricing information. Your Confidential Information includes the Data.
2.h. Connected means once an Installation is complete and you have (or, if applicable, a Customer has) access to the applicable Service. Connection has a consistent meaning.
2.i. Connectivity Service means Services that enable the delivery of connectivity from a fixed location to the Network or to the public internet over fibre, copper or cellular networks.
2.j. CPE means the modem, including ancillary hardware, cables, branding collateral, user guide and instruction booklet for Customers to access a Service (if applicable).
2.k. Customer Equipment means the equipment that the Customer or the Customer’s End Users own or possess and use in connection with the Connectivity Services (if applicable), including the CPE.
2.l. Data means all data, content, and information (including personal information) owned, held, used or created by you, Customers (if applicable) or End Users or on your, Customers’ (if applicable) or End Users’ behalf that is stored or transmitted using, or inputted into, the Services.
2.m. Early Termination Charge means:
2.m.i. in respect of any Connectivity Service, the early termination charge (if any) charged to us by the applicable Service Provider if any individual Connection for a Connectivity Service is terminated before the expiry of the applicable Commitment Term (if any) for that Connection and associated Connectivity Service; and
2.m.ii. in respect of any Service other than a Connectivity Service, the early termination charge (if any) for that service:
2.m.ii.1. set out or referred to in the Pricing Schedule, the Service Schedule or any Special Conditions; or
2.m.ii.2. if there is none, an amount equivalent to the Charges for the terminated Services until the expiry of the Commitment Term, as compensation to us for the revenue which we would otherwise have expected to receive from you in respect of those Services over the Commitment Term.
2.n. End User means a person who is the ultimate recipient of a Service (and who may also be the Customer (where applicable)).
2.o. Fair Use Policy means any fair use policy set out or referred to this agreement, a Service Schedule or in any Special Conditions as updated by us from time to time.
2.p. Force Majeure means an event that is beyond the reasonable control of a party, excluding:
2.p.i. an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care; or
2.p.ii. a lack of funds for any reason.
2.q. Including and similar words do not imply any limit.
2.r. Insolvency Event means, in respect of a party, that party becoming insolvent, liquidated or bankrupt, having an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becoming subject to any form of insolvency action or external administration, being removed from the Companies Register or ceasing to continue business for any reason.
2.s. Installation means the tasks necessary to provide the Connectivity Services to you (or, if applicable, a Customer), including any Service Provider services that are required to obtain a Connection and to provide you (or, if applicable, a Customer) with Services.
2.t. 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.
2.u. Network means the telecommunications and data networks that we use to provide the Services to you and to other customers, including any network with which we or a Service Provider interconnects.
2.v. Network Operator means a network operator as defined in the Telecommunications Act 2001 and includes any entity with whom such entity has:
2.v.i. 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
2.v.ii. an arrangement to resell services.
2.w. Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
2.x. a party includes that party’s permitted assigns.
2.y. 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.
2.z. personal information means information about an identifiable, living person.
2.aa. personnel includes officers, employees, contractors and agents, but a reference to your personnel does not include us.
2.bb. Privacy Act means the Privacy Act 2020.
2.cc. Privacy Policy means our privacy policy available on our website, in the Portal or by request.
2.dd. Service Provider means a service provider that provides us with the Services or services upon which the Services are dependent, including:
2.dd.i. Network Operator that operates the fibre, copper, cellular or wireless Network upon which delivery of Connectivity Services to you relies; and
2.dd.ii. any successor operator of any such Network Operator’s fibre, copper, cellular or wireless Network.
2.ee. Service Provider Flow Through Terms means the terms set out or referred to in any part of a Service Schedule entitled Service Provider Flow Through Terms.
2.ff. Services means:
2.ff.i. the services that you order or that you and we otherwise agree we will provide to you.
2.gg. Service Levels means the service levels set out in these terms, or referred to in a Service Schedule, or any Special Conditions as amended by us from time to time.
2.hh. Special Conditions means:
2.hh.i. document titled Special Conditions that refers to the Agreement, is signed by both parties and records special conditions that apply to the Agreement; and
2.hh.ii. any section of any other document that forms part of the Agreement titled Special Conditions.
2.ii. TCF means the New Zealand Telecommunications Forum Inc.
2.jj. Underlying Systems means our or our suppliers’ IT solutions, systems, and Networks (including any software, hardware, facilities, equipment, documentation, capacity, cables, fibre or other items, materials or devices) used to provide the Services, including any third party solutions, systems, assets and Networks.
2.kk. Your Equipment means the equipment that you or your End Users own or possess and use in connection with the Services.
2.ll. Clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement.
2.mm. Words in the singular include the plural and vice versa.
2.nn. 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.oo. No term of the Agreement is to be read against a party because the term was first proposed or drafted by that party.
3. Services
3.a. If you require any of our Services, you may submit an order to us:
3.a.i. through the Portal; or
3.a.ii. by such other means as designated by us from time to time.
3.b. We have the right to accept or reject each order on reasonable grounds. If we reject an order, we will provide you with our reasons for doing so.
3.c. Unless specified otherwise by us, acceptance will take place on the earlier of us confirming acceptance by email, commencing supply of the relevant Services, or taking any other action to fulfil the order such as placing an order with the Service Provider.
3.d. Subject to our acceptance in accordance with clause 3(a), we will begin providing Services to you in accordance with the timeframe that the parties agree in writing or, if no timeframe is agreed, within a reasonable timeframe.
4. Our Commitment to You
4.a. We will provide the Services:
4.a.i. in accordance with the Agreement and New Zealand law;
4.a.ii. exercising reasonable care, skill and diligence; and
4.a.iii. using suitably skilled, experienced and qualified personnel.
4.b. We will use reasonable efforts to provide the Services in accordance with the Service Levels.
4.c. Owing to operational or other reasons, we may from time to time restrict or suspend all or part of the Services. In those circumstances, we will give you as much notice as reasonably possible and will endeavour to ensure that suspensions or restrictions take place outside of normal business hours. Where we are restricting or suspending a Service in the case of an emergency or in order to protect people or property, or due to events beyond our reasonable control, we may not be able to give you any notice prior to such restriction or suspension, but will endeavour to inform you as soon as reasonably possible.
4.d. While we will do our best to provide quality Services, because of the nature of telecommunications and data networks, it is impossible to provide a fault-free service, and the quality and coverage of the Services depends partly on Your Equipment, partly on our equipment, partly on our providers network and partly on other service providers and networks to which our network is connected or connects, including Network Operators.
4.e. The Services can be adversely affected by radio interference, atmospheric conditions, geographic factors, network congestion, maintenance and improvement, outages on other networks and provider sites, the configuration or limitations of your, or your intended recipient’s equipment, other operational or technical difficulties (including data security breach or the introduction of malware to the Underlying Systems) or Force Majeure events, which means that you may not receive some or all of the Services in certain areas or at certain times.
4.f. The Services can also change with network expansion or reconfiguration.
4.g. We provide the Services to you on a non-exclusive basis. Nothing in the Agreement prevents us from providing the Services to any other person.
5. Your Commitment to Us
5.a. You and your End Users must:
5.a.i. 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 or contravenes a Fair Use Policy or any other specific terms of use or policy in relation to that Service that we notify you of from time to time;
5.a.ii. not use or permit the Services to be used in any way that could interfere with or damage the Network;
5.a.iii. not attempt to undermine or in any way compromise the security or integrity of the Underlying Systems;
5.a.iv. 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 the Services, or any Service Provider’s or Network Operator’s services;
5.a.v. follow our reasonable instructions about the use of the Services;
5.a.vi. use the Services only for the purpose for which they are provided
5.a.vii. 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; and
5.a.viii. have appropriate security policies and controls in place to prevent interference with or damage to the Services, our Network or that of any other Network Operator, the Underlying Systems, the Data or another customer’s use of our, a Service Provider’s or any Network Operator’s services.
5.b. If you or your End Users contravene a Fair Use Policy:
5.b.i. 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 5.a, and we will notify you as soon as practicable after becoming aware that the Service Provider has taken steps under this clause; and
5.b.ii. if repeated breaches occur, we may, by notice to you, require you to migrate to another Service or modify your (or your End Users') 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.
5.c. You will ensure that all information you provide to us is accurate and complete. This includes advising us promptly if you change premises or postal address.
5.d. You agree to follow, and ensure that your personnel and other End Users follow, our reasonable instructions about the use of the Services. A breach of the Agreement by your personnel or End Users is deemed to be a breach of the Agreement by you.
5.e. Using or agreeing to use the Services does not give you or your End Users any rights in any part of the Services.
5.f. You must:
5.f.i. provide all information and assistance that we may reasonably request in order to meet our obligations under the Agreement;
5.f.ii. promptly report to us any warrant or other request under Applicable Law related to the Services (which we will action in accordance with the relevant Applicable Law); and
5.f.iii. comply with accepted industry practice, any Applicable Law and our reasonable instructions in relation to your use of the Services.
6. Your Equipment
6.a. You will ensure that all of Your Equipment that is connected to the Network and/or to equipment that we have provided to you has all certifications required by the relevant Service Provider and is installed in accordance with our and the Service Provider’s specifications.
6.b. You agree to follow our reasonable instructions about modifications that you may need to make to Your Equipment so that you can use the Services.
6.c. Where we supply the relevant Equipment, it is our responsibility if it causes a fault in the operation of a Service.
6.d. Despite anything else in this Agreement, if Your Equipment causes a fault in the operation of a Service then you will, if we ask you to, pay us the reasonable costs of restoring that Service.
7. Intellectual Property
7.a. You acknowledge and agree that:
7.a.i. We, or our service providers may:
7.a.i.1. use Data and information about your and your Customers’ (if applicable) and End Users’ use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data);
7.a.i.2. use Analytical Data for our internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and
7.a.i.3. supply Analytical Data to third parties;
7.a.i.3.ii. our rights under clauses 7.a.i.1 and 7.a.i.3 above will survive termination or expiry of the Agreement; and
7.a.i.3.iii. title to, and all Intellectual Property Rights in, Analytical Data is and remains our property.
8. Liability
8.a. No Network Operator or third party supplier (including their personnel) will be liable to you for claims, costs, damages, losses or other liabilities of any kind arising in any way from the Services or from your and/or End Users’ use of the Network, including your and/or End Users’ access to and use of any third party’s site or Network Operator’s networks. This clause is intended to be for the benefit of, and enforceable by, each such, Network Operator and third party supplier in terms of the Contracts and Commercial Law Act 2017.
8.b. Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.
8.c. Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement or the Service.
9. Term and Termination
9.a. Unless terminated under this clause, the Agreement:
9.a.i. starts on the Agreement Commencement Date and will be in effect for the Agreement Commitment Term (if any); and
9.a.ii. at the end of the Agreement Commitment Term (if any), will continue until either party terminates this Agreement on at least 60 days’ written notice to the other party.
9.b. Each Service to an individual Connection:
9.b.i. will commence on the relevant Agreement Commencement Date and continues for the Commitment Term; and
9.b.ii. at the end of the Commitment Term, continues until terminated:
9.b.ii.1. by either party on at least 90 days’ written notice to the other party; or
9.b.ii.2. the Agreement or the Service is terminated in accordance with this clause or any other provision of the Agreement under which a party has a right to terminate the Agreement or Service.
10. Consequences of Termination
10.a. Termination of the Agreement and/or a Service does not affect either party’s rights or obligations that accrued before that termination.
10.b. On termination of the Agreement or a Service:
10.b.i. we will no longer provide the Services (or relevant Service) to you;
10.b.ii. you must pay all Charges incurred for Services provided prior to termination; and
10.b.iii. before the end of the Commitment Term for a Service, other than under clause 9.a.ii:
10.b.iii.1. you must pay us the applicable Early Termination Charge; and
10.b.iii.2. you will repay us any credit, equipment subsidy or installation subsidy we have given against your account.
10.c. On termination of the Agreement:
10.c.i. we may set off any credit remaining on your account against any Charges, Early Termination Charges, or other amounts payable under this clause; and
10.c.ii. we may hold any remaining credit on your account until we are satisfied (in our sole discretion) that:
10.c.ii.1. you have fully and properly performed all of your performance obligations and paid all of your payment obligations that may arise under the Agreement; and
10.c.ii.2. there is no material likelihood that any payment made by you under the Agreement is or will become void or voidable.
10.d. Without limiting clause 10 (a), no compensation is payable by us to you as a result of termination of the Agreement for whatever reason, and you will not be entitled to a refund of any Charges that you have already paid.