Terms & Conditions

Terms & Conditions of Master Unified Communications Agreement

These Terms & Conditions are applicable to Yaxxa’s supply and the Customer’s use of the Services, Equipment, Software and Products.

1. DEFINITIONS AND INTERPRETATION

1.1 In these T&Cs, the following terms will have the meanings given to them below unless the context clearly shows that a different meaning was intended, and similar words and expressions will have similar corresponding meanings:

1.1.1 “Acceptable Use Policy” means the policy provided by Yaxxa Website, which specifies what activities and online behaviour are considered unacceptable use of the Services;

1.1.2 “Aggregate Fee” means the aggregate of the fees specified in the Master Rate & Fee Schedule and all subsequent Transaction Schedules including (i) Installation & Configuration Fee, (ii) Reconnection Fee, and (iii) Voice Services & License Fee, (iv) any other charges relating to the Voice Services, access to Yaxxa’ s Network, and any other services provided by Yaxxa to the Customer;

1.1.3 “Agreement” means the Master Unified Communications Agreement (“MUCA”) between Yaxxa and the Customer comprising (i) these T&Cs, and (ii) all Transaction Schedules, collectively;

1.1.4 “Call Centre” means the Yaxxa contact centre;

1.1.5 “Customer” means the person who has ordered Services, whose name appears on the signed MUCA and Transaction Schedule and who is liable for the payment of the Aggregate Fees and for compliance with the Agreement and includes any of its successors or permitted assignees;

1.1.6 “Customer Premises” means the location or locations specified in the MUCA and to which the Equipment and/or Services are to be delivered;

1.1.7 “Deposit” means the amount payable by the Customer in terms of clause 15.3;

1.1.8 “Equipment” means any device used to access the Voice Services, including any router or modem, including that which is rented from Yaxxa. Where any such device is supplied by Yaxxa, its use shall be governed by a separate agreement to be entered between the Parties;

1.1.9 “Force Majeure Event” means any cause beyond a Party’s reasonable control, including, without limitation, acts of war, acts of God, earthquake, hurricanes, flood, fire or other similar casualty, embargo, riot, sabotage, strikes, governmental act, insurrections, epidemics, quarantines, inability to procure materials or transportation Facilities, failure of power, restrictive governmental laws, court orders, failure of the Internet or any other reason of a like nature not resulting from the actions or inactions of a Party;

1.1.10 “Governmental Authority” means any institution or functionary exercising public power or performing a public function in terms of legislation;

1.1.11 “Installation Fee” means the fee charged by Yaxxa to the Customer for purposes of enabling it to provide the Services at the Customer Premises, including as specified in the MUCA and Transaction Schedules;

1.1.12 “Network” means the Electronic Communication, and/or Voice, and/or Data Network managed and/or operated by Yaxxa;

1.1.13 “Parties” means Yaxxa and the Customer, and “Party” means either one of them as the context indicates;

1.1.14 “Product” means any product packages made available to the Customer under Yaxxa’ s brand through the bundling of any one or more Services or Equipment either alone or together with any content, other services, Equipment and/or product;

1.1.15 “Reconnection Fee” means the once-off fee payable by the Customer to Yaxxa for reconnecting any Voice Services or element thereof that has been suspended in terms of ‘clause 8’ as stipulated;

1.1.16 “Security” means security for the payment of Aggregate Fees in the form of a deed of suretyship from the Customer’s directors or shareholders, a signed debit order, a Deposit or such other form required by Yaxxa;

1.1.17 “Services Commencement Date” means, in respect of each of the Services ordered by the Customer, the date that Yaxxa starts supplying the Services and the Customer begins using the relevant Service other than for testing purposes;

1.1.18 “Services” means the Voice Services, but excludes the supply, installation, and maintenance of Equipment;

1.1.19 “T&Cs” means this document, which sets out the standard terms and conditions applicable to the supply of the Services by Yaxxa;

1.1.20 “Transaction Schedule and or Master Rate & Fee Schedule” means the schedule/s applicable to the Agreement, containing particulars, amongst other things, of the applicable fees and tariffs of Voice & Data Services to be provided by Yaxxa and any specific terms and conditions relating thereto;

1.1.21 “Term” means the respective periods of time stipulated in the Transaction Schedule/s for various Services, during which the Parties are obligated to perform under the Agreement;

1.1.22 “Voice Services” means the function that, through the utilisation of the Equipment and/ or infrastructure supplied by Yaxxa, or a third-party vendor, it directs or redirects telephone calls made by the Customer utilising its present fixed line services, in accordance with generally accepted telecommunications industry standards.

1.1.23 “Voice Services Fee” means the charges for access to Network and/or using the Voice Services, as the case may be, charged by Yaxxa to the Customer as specified in the Master Rate & Fee Schedule and the Transaction Schedules;

1.1.24 “Yaxxa” means Yaxxa Limited, a company incorporated under New Zealand law with registration number 8026996;

1.2 In the Agreement –

1.2.1 any reference to “days” must be construed as being a reference to calendar days unless qualified by the word “business” in which instance a “business day” will be any day other than a Saturday and a Sunday and/or a public holiday in New Zealand as published by the Government. Any reference to “business hours” must be construed as being the hours between 08h00 and 17h00 on any business day;

1.2.2 any term requiring agreement between the Parties shall be taken to mean agreement in writing;

1.2.3 where any provision of the Agreement requires either Party to perform any act in writing, this requirement will only be satisfied if such performance is made in a written printed-paper-based form or in an electronic form (such as email).

2. SUBSCRIPTION TO SERVICES

2.1 The Customer may order new Services or change existing Services by submitting a request to Yaxxa by email, specifying the new and/or changed Services required.

2.2 Upon receipt of the request, Yaxxa will consider the contents thereof and, if it is willing and able to provide the Services required, issue a Transaction Schedule to the Customer.

2.3 Prior to issuing a Transaction Schedule, Yaxxa may require that the Customer provide Security.

2.4 The Customer shall within seven (7) days from the date of the sending of the Transaction Schedule, confirm its acceptance of the terms contained therein by signing the Transaction Schedule and returning it to Yaxxa. Should the Customer not return the signed Transaction Schedule as provided for in this clause, the Transaction Schedule issued by Yaxxa will lapse.

2.5 Each Transaction Schedule, once accepted by the Customer as provided for herein above, shall constitute a separate agreement and shall be governed by these T&Cs save where expressly agreed otherwise in the particular Transaction Schedule.

2.6 No terms & conditions contained in a Customer’s request for Services shall be of any force or effect unless contained in the Transaction Schedule. No amendments to a Yaxxa Transaction Schedule shall be of any force or effect unless countersigned by Yaxxa.

2.7 Yaxxa may refuse to supply any Services specified in any Customer request without giving reasons therefor. Without limiting the generality of the foregone, Yaxxa may refuse to provide Services if (i) in Yaxxa’ s opinion, the Customer is not creditworthy or (ii) the Customer fails to provide required

3. DURATION

3.1 The Agreement in respect of any particular Services ordered (including any Equipment required in order to render the Services) and which Yaxxa has agreed to provide, will start on the Services Commencement Date and will continue, subject to clause 9 below (i) for the Term specified in the Transaction Schedule (if the Term is specified in the Transaction Schedule) or until the Agreement is terminated in terms of clause 9 (whichever is the earlier), or (ii) indefinitely (if there is no fixed Term stipulated in the Transaction Schedule).

3.2 If the Services (including any Equipment required in order to render the Services) is to be provided for a fixed term which is specified in the Transaction Schedule and if Yaxxa permits the Customer to continue using the Services (including any Equipment required in order to render the Services) after the end of that term, then the Agreement in respect of each of the Services concerned (including any Equipment required in order to render the Services) will continue indefinitely on the same terms and conditions as set out in the Transaction Schedule subject to the right of either Party to provide 180 days written notice of termination.

4. PROVISION AND MAINTENANCE OF SERVICES

4.1 In the absence of any abuse or misuse of the Services by the Customer, Yaxxa will make the Services available to the Customer.

4.2 Services will be deemed to be in good working order until such time as a fault is reported to Yaxxa.

“4.3 Yaxxa will attend to reported faults during the following times: Monday to Friday 08h00 – 18h00, Saturday & Sunday 09h00 – 16h00. Agreed Service Response times are as follows:”

4.3.1 High priority (Platform requirements) – First response time: 30 minutes – Resolution time: 1 hour

4.3.2 Medium priority (User requirements) – First response time: 1 hour – Resolution time: 4 hours

4.3.3 Low priority (Maintenance requirements) – First response time: 4 hours – Resolution time: 8 hours

4.4 If Yaxxa determines that a fault has been caused by any Equipment (i) belonging to the Customer or (ii) installed at the Customer Premises that is not covered by the manufacturer’s warranty, Yaxxa may charge the Customer to repair the fault. Yaxxa may charge the Client to repair any fault arising as a result of any person making unauthorised and/or improper use of the Services.

4.5 Yaxxa will not be liable if the Services become unavailable as a result of (i) any person making unauthorised and/or improper use of the Services with or without the Customer’s knowledge and/or consent, (ii) any person causing damage to or stealing any element of Network with or without the Customer’s knowledge and/or consent, or (iii) the occurrence of a Force Majeure Event, or (iv) as a result of 3rd party network failure or connectivity issues.

5. PREMISES

5.1 The Customer must allow Yaxxa to access and use the Customer Premises to the extent required by Yaxxa in order to install, inspect, maintain or remove any Equipment which is necessary to provide the Services to the Customer.

5.2 If the Customer is not the owner of the Customer Premises where the Services are required, the Customer must obtain any permission, which may be required from the owner of the Customer Premises in order for Yaxxa to install, inspect, maintain or remove any Equipment at/from the Customer Premises. The Customer indemnifies Yaxxa against damages or claims resulting from the Customer’s failure to obtain such permission.

5.3 The Customer must ensure that there is a suitable electrical power supply as required for the proper functioning of the Services and/or the Equipment. The cost of providing the power supply and all charges for use of power are for the Customer’s account.

5.4 If, in any building where Yaxxa has agreed to install Equipment, no conduit-pipes are available to install the Equipment necessary to provide the Services, Yaxxa may at its discretion (i) refuse to provide the Services in that building or in any part thereof until such conduit-pipes or other facilities have been so installed, or (ii) provide the Services and charge the Customer an Installation Fee for any additional costs incurred in installing the Services, which in Yaxxa’s opinion would not have been incurred if conduit-pipes or other facilities had been installed in the building in question.

5.5 The Customer must ensure that the Customer Premises are safe for Yaxxa to perform its obligations in terms of these T&C’s and must comply with all laws and regulations relating to occupational health and safety on the Customer Premises.

5.6 If the Customer breaches any of the provisions of this clause, and if Yaxxa is unable to install or continue to provide Services as a result, it must pay Yaxxa (i) all Aggregate Fees for the time that the Services are unavailable, even though the Services were not provided during that time, and (ii) any wasted costs incurred by Yaxxa.

5.7 Except for emergency repairs, which require no advance notice, Yaxxa will notify the Customer at least five (5) days in advance of any regularly scheduled maintenance that will require Yaxxa to have access to the Customer Premises.

6. USE OF SERVICES

6.1 The Customer must comply with all statutory and regulatory provisions and requirements relating to the provision and use of the Services.

6.2 The Customer may not resell Voice or Data Services capacity obtained from Yaxxa or cede or assign its rights to use, Equipment or Services, or sublet or otherwise part control of it, without Yaxxa’s written consent.

6.3 Yaxxa will not be liable to the Customer or any other person for interruption of Services or for any other loss, cost or damage caused or related to improper use or maintenance of the Equipment by the Customer, or third parties to whom the Customer has provided access to the Equipment.

6.4 The Customer must (i) comply with any instructions issued by Yaxxa which concern its use of the Services, Equipment, Products or matters related thereto, and which may be required to ensure the satisfactory provision of the Services, to protect the integrity of Network, or to deal with emergencies, and (ii) provide Yaxxa with all information relating to its use of the Services, Equipment, Products or matters related thereto that Yaxxa may reasonably require from time to time.

7. SERVICES FEES

7.1 Fees

7.1.1 The Customer must pay Yaxxa all the Aggregate Fees shown on the account. In addition, Yaxxa may charge a fee for rendering any other miscellaneous services requested by the Customer as agreed between the Parties from time to time.

7.1.2 Yaxxa may also, at its discretion, charge the Customer for any wasted costs associated with a technician visiting the Customer’s premises at an agreed time and not being able to again access.

7.1.3 Yaxxa may increase the Aggregate Fees to reflect any increase in Yaxxa’s costs in providing the Services which is due to any Force Majeure Event, including, without limitation, increases in fees or charges by other service providers, foreign exchange increased costs of third-party inputs. fluctuations, taxes, levies or

7.1.4 Should the OCR (Official Cash Rate) be increased or reduced at any time above or below (as the case may be) the OCR ruling at the date of this Agreement, Yaxxa shall be entitled (but not obliged), at any time thereafter to increase or reduce the Equipment rentals specified in the Transaction Schedule as to maintain the same margin in relation to the OCR which existed at the date of signature of this Agreement.

7.1.5 A certificate signed by a director of Yaxxa, whose appointment and authority need not be proved, shall, unless the Customer can show the amount stated therein is incorrect, be proof of any amount owing by the Customer to Yaxxa under this Agreement;

7.1.6 Invoicing/billing periods for the Voice Services Fees in the Transaction Schedule will run from 00h00:00 on the 1st of the month to 23h59:59 on the last day of each month;

7.1.7 Where applicable, Yaxxa will provide the Customer with an electronic bill comprising a personalised and itemised report reflecting usage extracted from the Yaxxa billing engine. It is agreed that Yaxxa’s billing engine is reliant on the infrastructure deployed by third party vendors to ascertain correct billing information, and as such any queries relating to correctness of billing information will be dependent on lodging such queries with such third-party vendors. Notwithstanding the aforesaid, the Customer is not entitled to suspend payment pending queries logged with Yaxxa relating to billing, and or the resolution thereof.

7.1.8 As all fees and charges in respect of the Voice Services Fees stipulated in the Transaction Schedule are based on and linked to those of Yaxxa’s service providers, an increase of those charges for whatsoever reason will bring about an automatic adjustment of Yaxxa’ s fees and charges. It will not be Yaxxa’s responsibility to notify the Customer of any such increases.

7.1.9 The Customer agrees that GST at the ruling prescribed rate, or any other taxes which may become applicable during the period of this Agreement will be payable by the Customer over and above the fees and charges stipulated in the Transaction Schedule.

7.2 Payment

7.2.1 Voice, Data, and/or other Service, License and Rental Fees stipulated in the Transaction Schedule shall be invoiced on the 1st day of the month. (respective “Due Dates”) Payment terms must be strictly adhered to.

7.2.2 Once off configuration fees, and the first months prorate fees are due and payable on signing of the Transaction Schedule.

7.2.3 Payment for Products shall be made in full on or before the 21st day of the month (“the due date”).

7.2.4 Any amounts not paid on Due Date may, at Yaxxa’s discretion, attract interest at 5% from the Due Date until date of actual payment, both days included.

7.2.5 Notwithstanding the aforegoing the Customers signature hereto constitutes Customer’s authority to Yaxxa or its cessionary to hold the Customer’s liable wherever it may be, the amounts due in terms of this Agreement.

7.2.6 Receipt of a bill of exchange, or other negotiable instrument shall not constitute payment until such negotiable instrument is paid in full.

7.3 Payment Allocation

Yaxxa may in its discretion allocate any payment received from the Customer towards any invoice that Yaxxa determines and may do so at the time of receipt or at any time afterwards and on default by the Customer may reallocate any payments previously received and allocated. In the absence of any payment allocation by Yaxxa, payment shall be deemed to be allocated in such manner as preserves the maximum value of Yaxxa’s purchase money security interest in the Products.

7.4 Title and Security

7.4.1 Title in any Products supplied by Yaxxa passes to the Customer only when the Customer has made payment in full for all Products provided by Yaxxa and of all other sums due to Yaxxa by the Customer on any account whatsoever. Until all sums due to Yaxxa by the Customer have been paid in full, Yaxxa has a security interest in all Products.

7.4.2 If the Products are attached, fixed, or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the Products shall remain with Yaxxa until the Customer has made payment for all Products, and where those Products are mixed with other property so as to be part of or a constituent of any new Products, title to these new Products shall deemed to be assigned to Yaxxa as security for the full satisfaction by the Customer of the full amount owing between Yaxxa and Customer.

7.4.3 The Customer gives irrevocable authority Yaxxa to enter any premises occupied by the Customer or on which Products are situated at any reasonable time after default by the Customer or before default if Yaxxa believes a default is likely and to remove and repossess any Products and any other property to which Products are attached or in which Products are incorporated. Yaxxa shall not be liable for any costs, damages, expenses or losses incurred by the Customer or any third party as a result of this action, nor liable in contract or in tort or otherwise in any way whatsoever unless by statute such liability cannot be excluded. Yaxxa may either resell any repossessed Products and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage, selling and other costs) or may retain any repossessed Products and credit the Customer’s account with the invoice value thereof less such sum as Yaxxa reasonably determines on account of wear and tear, depreciation, obsolescence, loss or profit and costs.

7.4.4 Where Products are retained by Yaxxa pursuant to clause 7.4.3 the Customer waives the right to receive notice under s.120 of the Personal Property Securities Act 1999 (“PPSA”) and to object under s.121 of the PPSA.

7.4.5 The following shall constitute defaults by the Customer:

Non payment of any sum by the due date.
The Customer intimates that it will not pay any sum by the due date.
Any Products are seized by any other creditor of the Customer or any other creditor intimates that it intends to seize products.
Any Products in the possession of the Customer are materially damaged while any sum due from the Customer Yaxxa remains unpaid
The Customer is bankrupted or put into liquidation or a receiver is appointed to any of the Customer’s assets or a landlord distrains against any of the Customer’s assets.
A Court judgment is entered against the Customer and remains unsatisfied for seven (7) days.
Any material adverse change in the financial position of the Customer.

7.5 Disputed invoices.

7.5.1 Yaxxa invoices will be deemed to be correct unless the Customer raises a dispute or query within 10 days of receiving it. If the Customer disputes or queries an invoice it must submit a written claim for the disputed amount, fully documenting the basis of the claim and with sufficient evidence and documentation to support it. The Customer waives the right to dispute or query any charges that it does not dispute or query within the specified time frame. The Customer remains liable to pay all undisputed amounts or not subject to a query (unless the Parties otherwise agree in writing). Amounts disputed by the Customer which prove to be payable may, at Yaxxa’s discretion, bear interest as provided for in clause 7.2.4 from Due Date until date of actual payment.

8. SUSPENSION

8.1 Yaxxa may suspend the Services and, at its discretion, disconnect the Customer’s Equipment from the Network in any of the following circumstances:

8.1.1 for modifications to, or planned maintenance of Network and, in this regard, Yaxxa will use its reasonable endeavours to inform the Customer of any planned interruption to Services, and to restore the Services as soon as is reasonably practical;

8.1.2 if the Customer fails to pay any portion of the Aggregate Fees for the Services to Yaxxa by the Due Date and further fails to pay the Aggregate Fees for that Service within 15 (fifteen) days of Yaxxa’s notice to do so;

8.1.3 if the Customer or any of its employees, agents or contractors (in Yaxxa’s reasonable opinion): (i) is engaged in conduct that is prohibited in terms of the Agreement, is contrary to any law applicable to the Service or is contrary to the Acceptable Use Policy, or (ii) does anything or fails to take any steps which could directly or indirectly damage Network (or networks connected to it) or inhibits Yaxxa’s ability to provide the Services.

8.2 When a Service has been suspended, the Customer will remain liable for all charges and fees due under these T&Cs throughout the period during which the Service is suspended. If Yaxxa incurs any expense in remedying the effects of the Customer’s unlawful or prohibited conduct, such expense shall be for the Customer’s account and shall be payable on demand.

9. TERMINATION

9.1 Termination by the Customer. The Customer may terminate the Agreement in respect of a particular Service upon 20 (twenty) business days’ written notice to Yaxxa if: (i) Yaxxa breaches a material provision of these T&Cs and, if such breach is capable of remedy, Yaxxa fails to remedy the breach within 20 (twenty) business days after receipt of written notice from the Customer asking Yaxxa to do so, or (ii) any bankruptcy, insolvency, administration, liquidation, receivership or winding-up proceedings are commenced in respect of Yaxxa.

9.2 Termination by Yaxxa. Subject to clause 9.3 and 9.4 Yaxxa may terminate the Agreement in respect of a particular Service or Services upon 20 (twenty) business days’ written notice if: (i) the Customer breaches any provision of these T&Cs, (ii) the Customer has contravened (a) any notices or rules communicated by Yaxxa to the Customer from time to time relating to the use of, access to or security measures relating to the Services, (b) any legislation, any regulation, rule, or policy of any Governmental Authority relating to the Services or to the Customer’s use thereof, or (iii) Yaxxa determines that the Customer has engaged in conduct that has caused or may cause damage to Network or any third parties, (iii) any bankruptcy, insolvency, administration, liquidation, receivership or winding-up proceeding are commenced against the Customer, or (iv) Yaxxa receives any direction, notification or instruction from any Governmental Authority to suspend or terminate the provision of the Services to the Customer or generally (where the reason for this is not due to the fault or negligence of Yaxxa).

9.3 In the circumstances specified in clause 9.2 above only, Yaxxa will give the Customer at least 20 (twenty) business days’ written notice to remedy the breach before terminating the Agreement in respect of any particular Service in terms of this clause provided however that this will not apply if Yaxxa determines that the breach is interfering with, or has the potential to interfere with the operation or maintenance of Network or Yaxxa’s Facilities or with Yaxxa’s other Customers’ use thereof, in which case Yaxxa may terminate the Agreement in respect of any particular Service immediately without further notice to the Customer.

9.4 If the reason for the termination relates to non-payment of the Aggregate Fees for the Services or any portion thereof, Yaxxa will give the Customers at least 20 (twenty) business days’ written notice to make payment before terminating the Agreement in respect of a particular Service.

9.5 Yaxxa will only terminate the particular Service to which the non-payment relates, where (i) the Customer has failed to make payment by the Due Date (as defined in clause 7.2 on 3 (three) occasions in any period of 3 (three) consecutive months and/or (ii) there has been an instance of fraud. In such instances, Yaxxa may terminate the Agreement in relation to any or all of the other Services being provided to the Customer, and not only the Service to which the non-payment relates.

10. CONSEQUENCES OF TERMINATION

10.1 If the Customer has entered into an Agreement for a fixed Term, and should the Customer cancel the Agreement prior to the expiry of the fixed term for reasons other than Cause pursuant to clause 9.1, or Yaxxa terminates the Agreement in respect of a particular Service prior to the expiry of the Term in respect of clause 9.2, upon such termination, the Customer will be required to pay any or all of the following amounts to Yaxxa, as applicable: (i) the Aggregate Fees payable for any Service provided to the Customer up to the date of termination of the Agreement in respect of that Service, (ii) any fees or charges relating to any Equipment supplied, installed or maintained by Yaxxa that are due and payable as at the date of termination of the Service, (iii) any additional expenses not specified in this clause which have been incurred by Yaxxa in connection with the provision of the Services up to and including the date with effect from which the Services were suspended or the Agreement in respect of the Services was terminated, and (iv) an amount equal to 80% of the remaining estimated license fee charges during the year of termination, and for each subsequent contract year remaining in the Term, plus (v) a pro rata portion of any and all current credits received by the Customer.

10.2 Subject to clause 10.1, the Customer will provide Yaxxa with 30 (thirty) days notice for the discontinuation of any and all services, including, but not limited to, SIP Trunks / Channels, DID Numbers, 0800 numbers, Voice Services, and Network Services. The Customer will not be liable for service charges/fees beyond the agreed termination date.

11. LIABILITY

11.1 In the course of performing its obligations under these T&Cs, Yaxxa will take all reasonable precautions to ensure the safety of the Customer, and the Customer’s property against damage as a result of the provision of the Services.

11.2 Any work in connection with the provision, installation or maintenance of any Equipment will be carried out by Yaxxa in such a way as to avoid, as far as reasonably possible, loss or inconvenience to the Customer or the public, and, on completion of such work, any property of the Customer or land which may have been disturbed shall be restored to the same condition as that in which it was before the provision of the Services or installation or maintenance of Equipment.

11.3 Yaxxa will only be liable for actual damages or injury that may be caused to any work or property of the Customer where Yaxxa fails to comply with its obligations in terms of clauses 11.1 and 11.2. Such liability shall be limited to the total Services Fees paid by the Customer at the time that the damage or injury occurs.

11.4 Except as provided in 11.3 Yaxxa will not incur any liability for any loss or damage arising out of the provision of the Services or installation or maintenance of Equipment, whether direct or indirect, consequential or contingent and in particular shall not be liable for any financial loss or loss of profits, income, contracts, business or goodwill.

11.5 Yaxxa shall not be liable for any costs arising out of the use of the Services or for any cost incurred by the Customer or its clients as a result of a modification to Network, a Service or any element thereof, or for an interruption to the Services, for any reason whatsoever, nor shall Yaxxa be liable for any costs or damages arising out of the termination of the Agreement.

11.6 Yaxxa assumes no responsibility for the integrity, correctness, retention or content of information transported via Network and will not be liable.

11.7 Yaxxa reserves the right to modify Network at any time and will not bear any liability to the Customer, for any claim for damages, or the cost of changes to, or replacement of any Equipment or any portion thereof, that may be necessitated by such modification to Network. Yaxxa will, however, use its best endeavours to notify the Customer of any modification to Network which could affect the Customer.

12. INDEMNITY

12.1 The Customer agrees to indemnify and hold Yaxxa harmless against any losses, damages, expenses and/or costs that the Customer may incur as a result of claims and/or actions by third parties (including dependants, clients, employees, agents and for any loss sustained by such third parties) arising from the provision of the Services and the provision, installation and maintenance of any Equipment in terms of these T&Cs.

13. CALL CENTRE AND COMPLAINTS PROCEDURE

13.1 The Customer may direct any queries and/or problems that it may have in connection with the Services or any item of Equipment that has been supplied, installed or maintained by Yaxxa or report any faults to Yaxxa by contacting the Yaxxa Call Centre.

13.2 The Yaxxa complaints desk will attempt to resolve complaints within 14 business days.

14. GENERAL

14.1 Privacy. The Customer must comply with Yaxxa’s privacy policy accessible on its Website. The Customer agrees that Yaxxa may disclose certain personal information to Yaxxa service providers, including credit card verification providers and credit bureaus, banks, consumer research companies and collection agencies.

14.2 Credit assessment. Yaxxa may carry out a general credit check on the Customer at any time after the Customer has submitted a request for Services or at any time during the Customer’s use of the Services. The Customer authorises Yaxxa to conduct all reasonable credit checks and searches to establish its creditworthiness and undertakes to provide all documents reasonably required by Yaxxa. Yaxxa may set a credit limit for the Customer. If the Customer exceeds the credit limit set by Yaxxa at any time during the use of the Services, Yaxxa may suspend the Services until the Customer has settled all outstanding amounts. Yaxxa may also alter, if it deems appropriate, the Customer’s credit limit from time to time.

14.3 Security. Yaxxa may require the Customer to provide Security in a form and manner specified by Yaxxa (i) before Yaxxa issues a Transaction Schedule, (ii) in order for Yaxxa to continue to supply any Services if the Customer has not complied with the payment terms set out in the Transaction Schedule, (ii) in order for Yaxxa to continue to supply any Services if the Customer has not complied with the payment terms set out in these T&Cs, or (iii) in order for Yaxxa to restore any Services that have been suspended or terminated in terms of these T&Cs. If a Deposit is made by the Customer, Yaxxa may draw upon the Deposit at any time to recover any amounts in respect of Aggregate Fees which are due and unpaid. In such an event, the Customer will be required immediately to pay the amount deducted from the Deposit failing which Yaxxa may suspend the provision of Services until the Customer pays the amount deducted. Yaxxa shall not be deemed to have given up (waived) any of its rights or remedies by drawing upon the Deposit to recover overdue or unpaid amounts.

14.4 Content on the Internet and on Network. Yaxxa is not responsible for monitoring content on Network or content on the Internet accessed using the Network. However, Yaxxa may take measures to ensure security and continuity of the Services on the Network within Yaxxa’s discretion, including the identification and blocking or filtering of Internet traffic. The Customer is responsible for maintaining the security of its internal network from unauthorised access. Yaxxa will not be liable for unauthorised access to the Customer’s network or other breaches of the Customer’s network security.

14.5 Force Majeure. Except for the Customer’s payment obligations under the Agreement, neither Party will be liable in any way to the other Party for any performance that is prevented or hindered due to a Force Majeure Event. If Yaxxa is unable to provide the Services for a period of more than 30 (thirty) consecutive days on account of a Force Majeure Event, then either Party may cancel the Agreement as it pertains to the Service concerned upon written notice to the other Party, and both Parties shall be released from any further future liability under that part of the Agreement.

14.6 Governing law and jurisdiction. The Agreement will be governed by New Zealand law.

14.7 Severability. Should any provision of these T&C’s be held by a court to be invalid, void or unenforceable, the offending provision will be struck out of these T&C’s but the remainder of these T&C’s shall remain legal, valid and binding.

14.8 Survival. Upon termination or expiration of the Agreement any terms and conditions that are intended by the nature to survive the termination or expiration will survive the expiration/termination of the Agreement.

14.9 Waiver. The failure by either Party to exercise or enforce any right conferred by these T&C’s will not be deemed to be a waiver of any such right not to operate so as to bar the exercise or enforcement of any such or other right on any later occasion.

14.10 Cession and assignment. The Customer may not cede or assign its rights and obligations under these T&C’s to a third party without first obtaining Yaxxa’s written consent. Yaxxa may allow its rights or obligations under these T&C’s to be exercised or performed in whole or in part by a third party at any time.

14.11 Notices. Any notice or communication required or permitted to be given in terms of these T&C’s may be delivered by hand, sent by post or facsimile (with confirmation of delivery) at the addresses given in the Transaction Schedule or at such other address as may hereafter be furnished. Such notices or communications will be deemed to have been received at the time of delivery (in the case of hand deliveries or transmissions by facsimile) or within two (2) weeks after the date of posting (in the case of postal deliveries).

14.12 Relationship.These T&C’s will not establish any partnership, joint venture, employment relationship, franchise, agency or any like relationship between the Parties.

14.13 Whole Agreement. The Agreement constitutes the sole agreement of the Parties relating to the subject matter hereof. All prior written or oral agreements, understandings, communications or practices between the Parties are hereby superseded insofar as they relate to the subject matter hereof.

14.14 Independent Advice. Each of the Parties to this Agreement hereby acknowledges and agrees that it has been free to secure independent legal and other professional advice as to the nature and effect of all the provisions of this Agreement and that it has either taken such advice or has dispensed with the necessity of doing so.

14.15 Amendment. Yaxxa may amend or replace these T&C’s from time to time as it may deem necessary in its sole and absolute discretion. All and any such modifications to the Agreement will be promptly posted on Yaxxa’s Website. The Customer may terminate the Agreement if it does not accept any amendments or changes made by Yaxxa to the T&C’s within thirty (30) days of the amendment or change being posted on Yaxxa’s Website. This does not apply in the case of any changes to the rates charged by Yaxxa in respect of any Aggregate Fees. Any amendments to the Transaction Schedule must be agreed to in writing and signed by both the Parties.

14.16 Cost. Each party shall bear their own costs incidental to the preparation and execution of their obligations in terms of this Agreement.

14.17 Intellectual Property. All data generated on the Yaxxa platform by the client, in accordance with the terms herein, will remain the property of the Client. All proprietary data, information, practices and knowledge specific to the Yaxxa platform, and/or the solutions and services provided by Yaxxa Ltd. to the Client will remain the Property, intellectual or otherwise, of Yaxxa Limited.