- SMX is a premium secure email and archive hosting provider which offers a carrier-grade cloud-based email service and archive product to the business market, together with nearshore (New Zealand-based) support.
- You wish to use our cloud-based email service and/or archive product.
- These Terms and Conditions form part of and should be read in conjunction with any SMX Secure Email Gateway and Archiving Agreement.
1.0 Definitions and Interpretation
1.1 Unless the context otherwise requires, the following expressions have the following meanings:
(a) the “Secure Email Gateway and Archiving Agreement;
(b) the schedules attached to it or incorporated into it by reference; and/or
(c) the applicable Online Provisioning Forms;
“Archive Product” means the cloud-based archiving product which is supplied by SMX, as further described in Schedule 1 and as amended from time to time by us;
“Authorised User” means:
(a) you; and
(b) any user authorised to use the Services in accordance with the Agreement; and
(c) any device that has it’s own Mailbox or SMX Archive repository (i.e. Printer) that uses an SMX’s service or product.
“Business Day” means any day other than a Saturday, Sunday, bank holiday or public holiday in Auckland, New Zealand;
“Claim” includes any claims, demands, suits or proceedings;
“Commencement Date” means the date of the Agreement;
“Confidential Information” means the provisions of these Terms and Conditions and all information provided by us to you under or in connection with the Agreement (including our operational, pricing and commercial information in relation to the provision of the Services), but does not include any information that is:
(a) on receipt, in the public domain, or that subsequently enters the public domain without any breach of the Agreement;
(b) on receipt, already known by the party receiving it;
(c) at any time after the date of receipt, received lawfully from a third party;
(d) required by law to be disclosed; or
(e) created by the other party, other than through a breach of confidentiality by that party;
“Customer Data” means any kind of data that the Authorised Users provide or disclose to us, through the use of the Services (which may include Personal Information);
“Documentation” means SMX's standard customer documentation for the Services, as amended from time to time by us;
“Early Termination Fees” has the meaning given in clause 15.3;
“Fees” means the fees set out in Schedule 1 of the Agreement or as agreed between you and us in writing from time to time;
“Force Majeure Event” includes any war, riot, strike, natural or man-made disaster or other circumstance beyond our reasonable control;
“GST” means goods and services tax imposed under the Goods and Services Tax Act 1985 for NZ and/or the A New Tax System (Goods and Services Tax) Act 1999 (Cth) for Australia;
“Initial Term” has the meaning given in clause 3.1;
“Intellectual Property Rights” includes copyright, patents, designs, trademarks, trade names, goodwill rights, trade secrets, the right to have Confidential Information kept confidential and any other intellectual proprietary right or form of intellectual property, whether or not such rights are registered or capable of being registered;
“MX Record” means the resource record in the domain name system that specifies your mail server responsible for accepting email messages on behalf of your domain;
“Online Provisioning Form” means the document or online confirmation or email confirmation, which refers to the Agreement and sets out the Services;
“Personal Information” has the meaning given in the Privacy Act;
“Privacy Act” means the Privacy Act 1993 for New Zealand or the Privacy Act 1988 (Cth) for Australia;
“Privacy Laws” means all applicable privacy-related laws, including the Privacy Act;
“Reasonable Use Policy” means SMX's Reasonable Use Policy which, on the Commencement Date, is available here and as amended from time to time by us;
“SaaS Services” means the cloud-based email services known as “secure email gateway” which are supplied by SMX, as further described in Schedule 1 of your Agreement and as amended from time to time by us. For the purposes of the Agreement, the SaaS Services include the Support Services;
(a) on the Commencement Date, the SaaS Services and/or the Archive Product, as agreed in the applicable Online Provisioning Form;
(b) unless otherwise stated, other services which are supplied by us and acquired by you from time to time, as agreed in an applicable Online Provisioning Form; and
(c) any individual service or component which constitutes the services referred to in paragraphs (a) and (b) above;
“Service Start Date” for a Service, means the date set out in the applicable Online Provisioning Form, or if no date is specified, the first day that the Service is installed and ready for use, as determined by us;
“SMX Domain” means the domain to which you direct your MX Record in order to receive the benefit of the Services;
“Support Service” means the email based support services detailed on the SMX website, and updated by us from time to time;
“Systems” means the communication equipment, computer resources and the data stored on the communication equipment and computer resources;
“Term” means the Initial Term and all extensions of the Initial Term under clause 3.1 below; and
“Virus” means any software, code, file, programme or other device which is designed to prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device or otherwise adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.
1.2 In the Agreement and these Terms and Conditions, unless the contrary intention appears:
(a) headings are for ease of reference only and do not affect interpretation;
(b) the singular includes the plural and vice versa;
(c) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(d) a reference to a party is to a party to the Agreement and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
(e) a reference to a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to, the Agreement;
(f) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(g) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(h) a reference to a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
(i) a reference to monetary amounts is in New Zealand dollars; and
(j) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of the Agreement or any part of it.
The Agreement and these Terms and Conditions applies to your use of the Services. Where you have entered into any other agreement with us, then the Agreement and these Terms and Conditions prevail to the extent there are any inconsistencies between the Agreement and the provisions of such other agreement.
3.1 The Agreement commences on the Commencement Date and, subject to the parties’ rights of earlier termination, continues in effect for the period specified in your Agreement (“Initial Term”). Upon expiry of the Initial Term, the Agreement will automatically continue for subsequent terms for the period specified in your Agreement on the same terms and conditions unless either party gives written notice of termination to the other party at least 3 months prior to the expiry of the Initial Term or any subsequent term.
4.0 Trial Period
4.1 Unless otherwise stated in the applicable Online Provisioning Form, on and from the applicable Service Start Date, we grant you the non-exclusive, non-transferable right to access and use:
(a) the Services; and
(b) the Documentation in connection with your use of the Services, free of charge for a period of 30 days or for the number of days specified in your Agreement if it differs from 30 days, for the number of Authorised Users specified in the Online Provisioning Form (the “Trial Period”).
4.2 Subject to clauses 4.3 and 4.4 of these Terms and Conditions, your access to the Services will automatically continue at the end of the Trial Period, at which time, we grant you the non-exclusive, non-transferable right to access and use:
(a) the Services; and
(b) the Documentation in connection with your use of the Services, for the balance of the Term.
4.3 At the end of the Trial period we will invoice you the Fees at the rates quoted for your continued access to the Services in accordance with Schedule 1 of your Agreement and/or the applicable Online Provisioning Form.
4.4 If you wish to terminate access to the Services before or at the end of the Trial Period you must:
(a) notify us in writing before the end of the Trial Period; and
(b) ensure that your MX Record is removed from the SMX Domain.
4.5 Where notice of termination has been received before the end of the Trial Period but your MX Record has not been removed from the SMX Domain, we may invoice you at the applicable rates for the Services until the later of:
(a) 30 days from the end of the Trial Period; and
(b) the removal of the MX Record from the SMX Domain.
5.1 At the end of the applicable Trial Period (or from the Service Start Date if there is no applicable Trial Period), in consideration for the payment of the Fees and compliance with the Agreement, we grant you a non-exclusive, non-transferable right to access and use the Services and the Documentation in connection with your use of the Services, for the balance of the Term.
5.2 We will provide the Services with due care and skill, but we do not guarantee that they will be uninterrupted or fault-free
5.3 The SaaS Services can be purchased independently of the Archive Product. However, the Archive Product can only be provided by us if you have also purchased, and continue to purchase, SMX’s standard “Inbound Filtering, Outbound Filtering and Silver Support” component of the SaaS Services.
5.4 All Customer Data remains the property of the relevant Authorised User and we will not provide, transfer or sell Customer Data (including the meta data component of such Customer Data) to a third party without your written permission. Despite the foregoing:
(a) you authorise us to access, view and use Customer Data solely as necessary to provide the Services; and
(b) you warrant that you have the legal right and authority to authorise us to access, view and use Customer Data to provide the Service in accordance with the terms of the Agreement.
5.5 We may modify or update the Services, at any time during the Term. We will notify you of such modifications or updates made under this clause 5.5. If a modification or update has a material and adverse impact on the feature and functionalities of the Services, you may terminate the Agreement without the payment of any Early Termination Fee, provided you give us written notice of such termination within 5 Business Days of the implementation of the relevant modification or update.
5.6 We may limit, suspend or cancel the provision of the Services if your use of a Service breaches our Reasonable Use Policy or for security-related reasons.
6.0 Your Obligations and Responsibilities
6.1 You are responsible and liable for any authorised or unauthorised use of the Services.
6.2 You acknowledge and agree that your access and use of the Services and Documentation is subject to our Reasonable Use Policy.
6.3 You must:
(a) ensure that the Services are used only by you personally or by Authorised Users for legitimate internal business purposes;
(b) procure that all Authorised Users comply with the Agreement in relation to access and use of the Services;
(c) ensure that no Services are transferred to, accessed or used (by any means) by any person other than the Authorised Users;
(d) ensure that the number of Authorised Users does not exceed the number specified in the applicable Online Provisioning Form, and ensure that you advise us in writing if you wish to increase the number of Authorised Users;
(e) permit us to audit the number of Authorised Users using the Services (including by allowing us to access any of your Confidential Information related to your use of the Services). Where such an audit shows that you have more users than the agreed number of Authorised Users using a Service (“Excess Users”), you must, on demand, immediately pay us the amount of Fees that would have been payable for such Excess Users based on our usual price list from the time they first accessed and used the Services;
(f) ensure that all information provided by you or on your behalf to us is accurate, current and complete; and
(g) procure that all Authorised Users keep secure and confidential their account ID, login ID, username and password.
6.4 You must inform us as soon as you become aware of any unauthorised or suspicious activity relating to the use of the Services, or if you believe the security of your account has been compromised in any way.
6.5 You are solely responsible for ensuring that your network and systems comply with the relevant minimum technical specifications specified by us from time to time. You are also solely responsible for procuring and maintaining a network connection and internet link to use in connection with the Services.
6.6 You must use reasonable endeavours to ensure that your network and computer systems do not contain any Viruses before using the Services and remain free of any Viruses during the Term. Where you become aware of any Virus on your network or computer system that you reasonably suspect could adversely affect the Services, then you must immediately notify us.
7.0 MX Record
7.1 You, and the other Authorised Users, will own all rights, title and interest in and to all of the MX Record and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the MX Record.
8.1 The payment terms in this clause 8 apply as the default payment terms, even if you have another agreement with us stating different terms. You must pay the Fees in accordance with this clause 8, Schedule 1 of the Agreement and/or the applicable Online Provisioning Form.
8.2 We will invoice you in accordance with Schedule 1 of the Agreement and/or the applicable Online Provisioning Form for the Fees payable in respect of the Services, and you must pay each invoice within 14 days of receiving such invoice (“Payment Date”).
8.3 If you fail to pay any invoice when due, then without prejudice to any of our other rights and remedies:
(a) we will send you a notice of your failure to pay such invoice (“Non-payment Notice”), and you will then have a further 10 Business Days after the date of the Non-payment Notice to pay any amount remaining unpaid; and
(b) if we do not receive payment after 10 Business Days of the Non-payment Notice being sent, we may, without liability to you:
(i) disable access to all or part of the Services;
(ii) cease to provide any of the Services; and/or
(iii) remove all data connected with the Services from our Systems.
8.4 Interest will accrue on any amounts remaining unpaid after the Payment Date at an annual rate of 5% interest per annum (calculated on a daily basis) until the amount is paid in full.
8.5 Unless otherwise stated, all amounts and Fees stated or referred to in the Agreement are exclusive of GST (if any).
8.6 You must pay all costs and expenses (including legal and/or debt collection agency costs) we incur in enforcing or attempting to enforce our rights under this clause 8.
9.1 In this clause 9, a word or expression defined in the Goods and Services Tax Act 1985 for New Zealand and/or the A New Tax System (Goods and Services Tax) Act 1999 (Cth) for Australia and has the meaning given to it in that Act appropriate for your jurisdiction (New Zealand or Australia).
9.2 For the purposes of the Agreement where the expression “GST inclusive” is used in relation to an amount payable or other consideration to be provided for a supply under the Agreement, the amount or consideration will not be increased on account of any GST payable on that supply.
9.3 Any consideration to be paid or provided for a supply made under or in connection with the Agreement unless specifically described in the Agreement as GST inclusive, does not include an amount on account of GST.
9.4 Despite any other provision in the Agreement, if a party (“GST Supplier”) makes a supply under or in connection with the Agreement on which GST is imposed (not being a supply of the consideration for which is specifically described in the Agreement as GST inclusive):
(a) the consideration payable or to be provided for that supply under the Agreement but for the application of this clause 9 (“GST exclusive consideration”) is increased by, and the recipient of the supply (“Recipient”) must also pay to the GST Supplier, an amount equal to the GST payable by the GST Supplier on that supply; and
(b) the amount by which the GST exclusive consideration is increased must be paid to the GST Supplier by the Recipient without set-off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
9.5 If a payment to a party under the Agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense. That party is assumed to be entitled to a full input tax credit unless it proves, before the date on which the payment must be made, that its entitlement is otherwise.
9.6 If a payment is calculated by reference to or as a specified percentage of another amount or revenue stream, that payment will be calculated by reference to or as a specified percentage of the amount or revenue stream net of any GST component.
9.7 The Recipient need not make a payment for a taxable supply made under or in connection with the Agreement in respect of a taxable supply until the GST Supplier has given the Recipient a tax invoice for the supply to which the payment relates.
9.8 The GST Supplier must give the Recipient an adjustment note for an adjustment arising from an adjustment event relating to a taxable supply made under or in connection with the Agreement as soon as the GST Supplier becomes aware of the adjustment event.
10 No Warranties
10.1 Subject to clauses 10.2 and 10.3, to the maximum extent permitted by law, all representations, warranties, guarantees, indemnities, undertakings, terms or conditions that would be implied in, or affect, the Agreement by statute, common law or otherwise are excluded.
10.2 To the extent that you are a “consumer” for the purposes of the New Zealand Consumer Guarantees Act 1993 or the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth), nothing in the Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred on you by that Act. (“Non-Excludable Guarantee”)
10.3 To the maximum extent permitted by law, our liability for breach of a Non-Excludable Guarantee is limited, at our option, to:
(a) in the case of goods, any one or more of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; or
(b) in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
11 Limitation of Liability
11.1 Subject to clause 10.2, to the maximum extent permitted by law, we do not have any liability or responsibility to you for any loss, damage or injury, whether arising in contract, tort (including negligence), equity or otherwise, which could not reasonably be considered to arise naturally (ie in the ordinary course of things) from a breach of the Agreement or any other indirect or special loss, loss of business, profits, revenue, likely savings, business opportunities or data.
11.2 Subject to clause 10.2, to the maximum extent permitted by law, in the case of any other losses not excluded under clause 11.1, we limit our aggregate liability (whether in contract, tort or otherwise) to you for any losses resulting from any Claims arising in a calendar year, to an amount equal to the amounts paid by you to us in that calendar year.
11.3 You indemnify us against any losses, costs (including solicitor and client costs), expenses, damages or liabilities sustained or incurred by us arising out of or in connection with any Claims brought against us by any person (including any Authorised Users) in connection with your breach of the Agreement.
11.4 You have the sole right to bring any Claims that any other Authorised User may have against us under, or in connection with, the Agreement (including the conduct of any proceedings in court or mediation). You indemnify us against all losses, costs (including solicitor and client costs), expenses, damages or liabilities sustained or incurred by us arising out of or in connection with any Claim which an Authorised User other than you brings directly against us under or in connection with the Agreement.
12 Interllectual Property Rights
12.1 You acknowledge that we (or our suppliers) are the sole owner of all rights (including Intellectual Property Rights) in the Services and the Documentation.
12.2 You must not, nor may you permit any other person to:
(a) copy, alter, modify, reproduce, reverse assemble, reverse compile or enhance the Services;
(b) alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality, proprietary or trade secret, legend or notice, or any numbers, or other means of identification used on or in relation to the Services;
(c) make any of the Services available to any person other than the Authorised Users without our prior written consent; or
(d) do any act that would or might invalidate or be inconsistent with our Intellectual Property Rights.
12.3 You must, at our expense, take all such steps as we may reasonably require to assist us to maintain the validity and enforceability of our Intellectual Property Rights.
12.4 You must notify us of any actual, threatened or suspected infringement of our Intellectual Property Rights and of any Claim by any person that any use of the Services infringes any rights of any other person, as soon as that infringement or claim comes to your notice. You must, at our expense, do all such things as may reasonably be required by us to assist us in pursuing or defending any proceedings in relation to any such infringement or Claim.
12.5 You indemnify us against any losses, costs (including solicitor and client costs), expenses, damages or liability sustained or incurred by us, whether direct, indirect, consequential or otherwise and whether arising in contract, tort (including in each case negligence), or equity or otherwise, arising out of or in connection with a Claim by any person alleging infringement of a person's Intellectual Property Rights if such Claim arises from, or in connection with, any infringement, suspected infringement or alleged infringement due to your breach of the Agreement.
12.6 We indemnify you against any direct loss, costs or expenses incurred by you as a result of a Claim by a third party against you that the Services or any material provided by us under the Agreement infringes the Intellectual Property Rights of the third party claimant, subject to you allowing us to direct any defence and settlement of the Claim and promptly notifying us of any such Claim. This indemnity does not apply to the extent the Claim arises out of any modification of any materials provided by us, relates to services or materials provided by any other person in conjunction with the Services, or is otherwise caused (or contributed to) by you.
12.7 Where any person makes a Claim for Intellectual Property Right infringement in connection with the provision of the Services or materials by us, we may modify, limit, suspend or cancel the provision of the Services or materials, if required, in response to the Claim.
13 Confidential Information
13.1 During the Term, and after the termination or expiry of the Agreement, you may not use or disclose any Confidential Information other than:
(a) to your Authorised Users, employees or professional advisers on a 'need to know’ basis, provided those persons first agree to observe the confidentiality of the information;
(b) with our express prior written consent; or
(c) as required by applicable laws.
13.2 You agree to do all such things as may be reasonably necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information (including by implementing such security arrangements as may be necessary to ensure that the secrecy of the Confidential Information is preserved).
13.3 You indemnify us against any losses, costs (including solicitor and client costs), expenses, damages or liabilities sustained or incurred by us, whether direct, indirect, consequential, or otherwise and whether arising in contract, tort (including in each case negligence), or equity or otherwise, arising out of, or in connection with, any unauthorised disclosure or use of the Confidential Information by you or anyone acquiring such Confidential Information from you.
13.4 By providing you with an account ID, login ID or username, we do not relinquish any rights to the account ID, login ID or username, and your use of them does not create any rights to them.
14 Privacy and Security
14.1 The parties must comply with all Privacy Laws in relation to any Personal Information which is collected, stored, used or disclosed in connection with the Agreement.
14.4 We maintain such security safeguards, as it is reasonable in the circumstances to take, to protect against the accidental loss, unauthorised access, use modification or disclosure and other misuse of Personal Information.
14.5 If we become aware of any unauthorised access, use, disclosure or modification of Customer Data (“Data Breach”), we will as soon as reasonably practicable notify you in writing of of the full details of the Data Breach and co-operate with you in respect of any internal or regulatory investigation that you are subject to relating to the Data Breach.
14.6 You hereby acknowledge and agree that we may engage third party suppliers to provide certain Services on our behalf (“Subcontractors”). Subcontractors will have access to and use of Customer Data solely to the extent necessary and for the purpose of delivering the Service (or part of the Service) that we have engaged them to provide. We will ensure that any sub-contract entered into for the purpose of fulfilling our obligations under the Agreement imposes on the Subcontractor substantially similar obligations as we have under this clause 14. We shall remain responsible for all acts and omissions of Subcontractors to the same extent as if those acts or omissions were performed by us.
14.8 You must on or before the Commencement Date notify us in writing if you are subject to Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation) (“GDPR”). To the extent that you are subject to the GDPR we will comply with our obligations as a data processor (as such term is defined in the GDPR) in respect of any Personal Information that we may process in connection with your use of the Services, in accordance with a separate data processing agreement which will be attached to and form part of the Agreement (if applicable).
15.1 Subject to clause 4, you must give us at least 90 days' notice (“Notice Period”) in writing, prior to the expiration of the Term to terminate the Agreement. You acknowledge and agree that we are entitled to continue to invoice you up to the expiry of the Notice Period, and you must pay all undisputed amounts so invoiced.
15.2 Either party may immediately terminate the Agreement by giving notice in writing to the other party (“Notice of Termination”) where the other party:
(a) materially breaches the Agreement and the breach is incapable of remedy, or fails to pay an amount of Fees when due;
(b) materially breaches the Agreement and fails to remedy that breach within 10 Business Days’ of written notice of that breach having been given to the other party; or
(c) suffers liquidation or insolvency (except for the purposes of solvent amalgamation or reconstruction), appoints a receiver, statutory manager or trustee of its property, makes an assignment for the benefit of its creditors or has an execution levied against it or is compounding or compromising with its creditors or being unable to pay its debts as and when those debts fall due.
15.3 If a party terminates the Agreement under this clause 15 other than for our material breach, liquidation or insolvency, we may invoice you (in addition to any other remedies we may have against you) for:
(a) an amount equal to one month of the agreed Fees; or
(b) where you have committed to a minimum time period for particular Services, an amount equal to 100% of the estimated fees payable by you for those Services for the remainder of the committed minimum time period, (“Early Termination Fees”).
15.4 You agree that Early Termination Fees are genuine pre-estimates of the loss we are likely to suffer as a result of the early termination of the Agreement.
15.5 Upon the expiry or termination of the Agreement for any reason:
(a) we will discontinue the delivery of the Services and remove all data connected with such Services from our Systems; and
(b) you must delete or destroy (as applicable in the circumstances) all Confidential Information of SMX in your possession or control.
16 Force Majeure
16.1 We will be relieved from performing our obligations under the Agreement if we are prevented from or delayed in performing our obligations, or from carrying on our business, as a direct result of a Force Majeure Event. Any such suspension of performance must be limited to the period during which the Force Majeure Event or its impact continues.
17.1 Where any dispute arises between the parties concerning the Agreement or the circumstances, representations, or conduct giving rise to the Agreement, no party may commence any court or arbitration proceedings relating to the dispute unless that party has complied with the procedures set out in this clause 17.
17.2 The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must within seven days of receipt of the notice give written notice to the first party, naming its representative for the negotiations. Each representative nominated must have authority to settle or resolve the dispute.
17.3 If the parties are unable to resolve the dispute by discussion and negotiation within 14 days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation by the: 1. For New Zealand based customers, Arbitrators’ and Mediators’ Institute of New Zealand (“AMINZ”) for resolution in accordance with its Mediation Protocol. The mediator and the mediator’s fee will be as agreed by the parties, or failing agreement between the parties, the mediator will be selected and his/her fee determined by AMINZ. 2. For Australian based Customers, the Australian Disputes Centre according to its Guidelines for Commercial Mediation in accordance with its Mediation Protocol. The mediator and the mediator’s fee will be as agreed by the parties, or failing agreement between the parties, the mediator will be selected and his/her fee determined by the Australian Disputes Centre.
17.4 If the parties cannot resolve a dispute in accordance with the escalation procedure in clauses 17.2 and 17.3, any party may commence court proceedings.
17.5 The parties must continue to perform their respective obligations under the Agreement pending the resolution of a dispute.
18.1 You must not assign any of your rights under the Agreement without our prior written consent.
19.1 Occasionally we may, in our discretion, make changes to these Terms. When we make changes to the Terms that we consider material, we’ll notify you by email. By continuing to use the Services, you acknowledge and agree to those changes and the new terms will be deemed to have taken effect 30 days after those changes are made
19.2 These Terms and the Online Provisioning Form constitute the entire agreement of the parties about its subject matter and supersedes any previous understanding or agreements on that subject matter. Any changes to any specific clause as agreed by you and SMX will not affect the operation of the other terms and will form part of these Terms.
20 Entire Agreement
20.1 The Agreement constitutes the complete and exclusive statement of the agreement between the parties and these Terms and Conditions, superseding all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of the Agreement and these Terms and Agreement.
21 Further Assurances
21.1 The parties must each do all such further acts (and sign any documents), as may be necessary or desirable for effecting the transactions contemplated by the Agreement.
22.1 Except as specifically provided in the Agreement (including in clause 5.5 of these Terms and Conditions), no amendment to the Agreement will be effective unless it is in writing and signed by both parties.
23.1 No exercise or failure to exercise or delay in exercising any right or remedy by a party constitutes a waiver by that party of that or any other right or remedy available to it.
24.1 The agreements, obligations and warranties contained in the Agreement do not merge on completion of the transactions contemplated by it but remain in full force until satisfied.
25 Partial Invalidity
25.1 If any provision of the Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of the Agreement and its application will not be affected and will remain enforceable to the greatest extent permitted by applicable laws.
26.1 Any notice or other communication in connection with the Agreement must be:
(a) in writing, by email; and
(b) must be sent to the correct email, designated in writing by each party for that purpose from time to time; and
(c) A notice or communication in relation to these Terms will be deemed to be received, in the case of email, on the Business Day on which the email is successfully delivered.
(d) We will contact you at your electronic address unless otherwise requested. Please contact us via email.
27.1 The Agreement will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.
28 Governing Law
28.1 The Agreement is governed by New Zealand laws, and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New Zealand.
29 Electronic Signature
29.1 To the maximum extent permitted by law, if an electronic signature is used, it will have the same effect as a handwritten signature.