Upper Hutt Data Centre Terms and Conditions

Introduction

This agreement applies to the purchase of certain co-location services by the Customer from DTS Limited (“DTS”).

This agreement is made up of a number of Schedules as set out below, all of which form an essential part of this agreement between the Customer and DTS:

Schedule 1 – Services

Schedule 2 – Service Level Agreement

Schedule 3 – Payment Schedule

Schedule 4 – Operational Change Control

Schedule 5 – Service Review Process

Schedule 6 – General Terms and Conditions

This introduction and the Schedules are together referred to as the “Agreement”.

DTS agrees to provide the Services (as set out in Schedule 1) to the Customer in consideration for the fees (as set out in Schedule 3) on the terms and conditions of this Agreement.

Schedule 1 – SERVICES

This schedule when read in conjunction with the description in Schedule 3 describes the technology, infrastructure, and associated operational services supplied by DTS. It defines the respective roles and responsibilities of DTS and the Customer, as well as the scope of the service to be performed by DTS.  References in this Agreement to Services are references to the Services described in this Schedule.

Article I.  Data Centre Environment Provisions

Section 1.01       Provision of Data Centre facilities:

DTS will:

(a)           Provide physical space within the Data Centre for housing the Customer Equipment;

(b)          Provide physical security to ensure access to the Data Centre is securely controlled at all times;

(c)           Ensure that:

(i)         Customer personnel, service providers and subcontractors can access the Data Centre as required from time to time; and

(ii)        Customer’s service providers and subcontractors can install, provide, and maintain equipment (including cabling) at the Data Centre as required from time to time and when agreed between Customer and DTS to provide services (including connectivity) to Customer.

Section 1.02       Data Centre environment:
DTS will place all equipment in the Data Centre that is sufficient to properly accommodate, operate and maintain the Customer Equipment now and into the future (including by meeting the relevant manufacturer’s environmental and other specifications and requirements). The Data Centre will be of a standard suitable for housing commercial grade computer systems, and will include:

(a)           climate control to maintain an appropriate air temperature, air flow, and humidity level for the operation of computer equipment;

(b)          power supply sufficient for the Customer Equipment;

(c)           uninterruptible power supply to continuously power all equipment in the event of a main power outage until the backup generator can start up; and

(d)          backup generator: to continuously power all equipment in the event of a main power outage.

Section 1.03       Connection to internet
DTS will provide connectivity to the Data Centre via dual diverse fibre carriers.  The Customer may purchase port access to these services from DTS and/or DTS can arrange an individual connection for the Customer.  Individual connections must be contracted through DTS and be demarcated at point in the premises specified by DTS.  A cross connect service will be required to link the connection demarcation point to the Customer Equipment.

Article II.  Operational Services

Section 2.01       Change Control:
DTS will work with Customer to ensure changes to the services are deployed in accordance with the Change Control Process described in Schedule 4. For the avoidance of doubt, this section Article II applies in addition to DTS’s obligations under the Change Control Process and does not in any way limit the application of the Change Control Process. DTS will;

(a)           manage the Change Control Process;

(b)          deploy only changes which have been duly approved by Customer through the Change Control Process;

(c)           inform Customer of status of all changes including any problems or issues arising from the deployment of a change;

(d)          ensure that all changes are pre-tested to Customer satisfaction; and

(e)           promptly notify DTS and any necessary Customer staff of the approval status of all changes managed through the change control process.

Section 2.02       Change Windows:

(a)           Regular Change Window: Customer will allow DTS to have a regular weekly change widow on a Sunday night from 10pm to 2am to allow for maintenance such as operating system patching to be carried out. As this regular change window is established, customer approval will not be required for each instance, though DTS will advise Customer through the change control process when this window will be used.

(b)          DTS Upgrade Window: Customer will allow DTS to schedule a complete Service outage of up to 6 hours every six months in order to undertake maintenance or upgrades of the DTS infrastructure. DTS will provide Customer with a minimum of two weeks’ written notice of the proposed outage including when it will occur.  DTS will use its best endeavours to schedule any outage during a time when it will provide minimum or no disruption to Customer staff and customers.

(c)           Ad-hoc Changes: Changes other than those scheduled by DTS during the Regular Change Window and the DTS Upgrade Window will occur at a time agreed by both parties through the change control process.

Article III. Customer Responsibilities

Section 3.01       Except to the extent that DTS is responsible for the following under this Agreement, Customer will maintain responsibility for:

(a)           all application software licenses;

(b)          ongoing support of applications;

(c)           insurance, provision, and support of all Customer Equipment.

Section 3.02       Customer Equipment

All Customer Equipment colocated at DTS premises as part of providing the Services detailed in this agreement will be owned and operated by the Customer (with the exception of DTS Managed Routers or Managed Switches).  All responsibility for Customer Equipment, including insurance and operation, is the responsibility of the Customer.  A specification sheet (as published by the manufacturer) for each device must be provided to DTS for approval prior to deployment in DTS colocated rack space.

Section 3.03       Customer Content

Customer is prohibited from storing, distributing or transmitting any unlawful material through the Services provided hereunder. Examples of unlawful material include, but are not limited to, threats of physical harm, child pornography, spam, and copyrighted, trademarked and other proprietary material used without proper authorization. Customer may not post, upload, or otherwise distribute copyrighted material as a result of the Services provided hereunder without the consent of the copyright holder. The storage, distribution, or transmission of unlawful materials could subject Customer to criminal as well as civil liability, in addition to the actions further outlined in this Agreement.

Section 3.04       Limitations on Use

The Services are provided for Customer’s individual business, and Customer may not transfer any connections, nor resell any of the Services to any third party.  Customer shall provide DTS with written notice of expected unusual page or survey usage as soon as practicable after becoming aware of such likely usage, but in any case no later than seven (7) days after becoming so aware.

Article IV. Liability Limit

DTS warrants that DTS has in place now and will on a continuing basis take all reasonable technical and organisational measures to keep data stored on Customer Equipment secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access.

Notwithstanding this clause or any other provision in this Agreement, DTS cannot guarantee the total security of any Customer data or content on Customer Equipment or otherwise provided to DTS.  Accordingly any Customer data or content which is provided to or transmitted to DTS by the Customer is done so at Customer’s own risk and DTS expressly excludes any liability for loss of such Customer data or content.

Notwithstanding any other provision of this Agreement, the total liability of DTS to the Customer arising from any breach (or series of related breaches) of this Agreement, negligence or other action or contravention of any statute shall not in aggregate exceed three times the total Fixed Monthly Charge defined in section 1.1 of Schedule 3

Article V.  Lead Time

Section 5.01       Lead Time for Services

The lead time for the Services is as follows:

Approximately 8 weeks from receipt of signed/completed agreement.

Lead times are not guaranteed and are subject to service provider availability, building consents, etc.  This lead time is based on the lead time required for installation of Dark Fibre, which is the aspect of Service with the longest service provider lead time for completion.

Article VI. Definitions

Section 6.01

In this Agreement, the following terms or expressions shall have the following meanings (unless the context otherwise requires):

“Available” means that the Service is being provided to the Customer as per the requirements and specifications of Schedule 1;

“Business Hours” means 8:30am to 5:00pm on Working Days;

“Call” means a problem or incident, or request for information or assistance, in relation to the Services, logged with DTS in accordance with this Schedule;

“Change Control Process” means the process by which any change, move or add is made to a service by the client and/or DTS;

“Change Window” means a regular Change Window or DTS Upgrade Window as described in Section 2.02;

“Colocated Rack Space” means the space made available to the Customer at the Data Centre to colocate the Customer Equipment as part of the Services;

“Customer Equipment” means the equipment owned by the Customer provided to DTS as listed in the change control document

“Data Centre” means the property at level 4 CBD Tower, 84-90 Main Street, Upper Hutt where DTS will colocate the Customer Equipment and enable the Services to be provided;

“DTS Front Desk” means DTS’s Service desk for receiving and logging Calls;

“Materially Deficient” means service level of such a deficient quality that it constitutes a material breach of the Agreement as set out in Article VI.

“Outage” means any period during which the Service is not Available, other than during the during a Change Window;

“Prime Hours of Availability” means the hours between 8am and 8pm on Working Days;

“Priority 1 Call” means any Call logged by the DTS Front Desk that Customer designates as Priority 1 on the basis that Customer reasonably considers that there is a high level of impact to Customer’s business, for example (and without limitation) Customer is unable to access Customer Data;

“Priority 2 Call” means any Call logged by the DTS Front Desk that Customer designates as Priority 2 on the basis that Customer reasonably considers that there is a moderate level of impact to Customer’s business, for example (and without limitation) Customer can access Customer Data but the system response time is degraded;

“Priority 3 Call” means any Call logged by the DTS Front Desk that Customer designates as Priority 3 on the basis that Customer reasonably considers that there is a low level of impact to Customer’s business;

“Progress Update” means a report by phone call and by email to Customer’s IS Service Desk detailing progress on the resolution of the Call;

“Resolve” means that a Call has been permanently resolved to Customer’s reasonable satisfaction, and has been recorded in DTS’s Call logging system as having been resolved;

“Response” means that a qualified service technician has responded to the Call by advising Customer’s IS Service Desk by phone: (a) that DTS have commenced Resolving the Call; (b) of the steps being taken to Resolve the Call; and (c) an estimate of the time to Resolve the Call;

“Service Credit” means a monetary credit applied to Customer’s account, (the amount of which will be calculated in accordance with the relevant SLA where DTS has failed to meet that Service Level.

“Scheduled Maintenance” means any systems maintenance that Customer has been provided notice of in writing

“Unavoidable Costs” means the costs relating to removal of client equipment, including the cost of staff time, or that of 3rd party contractors. It also means the costs of fulfilling any third party contracts that were engaged specifically in order to provide the end user service.

“Working Days” means Monday to Friday excluding New Zealand national holidays.

Schedule 2 – Service level AGREEMENT

This Schedule sets out:

  • the Service Levels to be met or exceeded by DTS;
  • a description of some of the service management services to be provided by DTS to Customer; and
  • the escalation process DTS will follow if certain Service Levels are not met.

Article VII. Service Availability Service Level

Section 7.01       Service Availability:
DTS will ensure the Data Centre environment, customer’s access to the DTS network, and Customer’s access to the Customer Equipment are available in accordance with Table A.  Unavailability due to Schedule Maintenance shall not be considered a breach of this Service Level.  All Scheduled Maintenance will be scheduled and agreed through the change control process.  DTS will ensure that no Scheduled Maintenance occurs during Business Hours, unless specifically agreed with Customer.

Table A:           Service Availability
Service Level 99.95 % Availability
Applicable hours 24 hours a day, 7 days a week
Measurement calculation Availability is a percentage calculated monthly as follows:

Availability =

(total number of minutes in

the previous month that the Services were Available)

 

(total number of minutes in the previous calendar month)

 x 100
Frequency of measurement Monthly

Section 7.02       Outage Service Level:

DTS will comply with the Outage Service Level set out in Table B:

Table B:           Outages
Service Level No Outage over 4 hours
Applicable hours 24 hours a day, 7 days a week
Frequency of measurement DTS shall measure the duration of each Outage.

Article VIII. Call Response, Resolution and Escalation Service Levels

Section 8.01       Support Availability:
DTS support for logging Calls is available 24X7 every day via the DTS Front Office.  The contact details for the DTS Front Desk are as follows:

Phone: 0508 387 669                             Email:  support@dts.net.nz

 Section 8.02       Call Response and Resolution Service Levels:
DTS shall provide a Response to and Resolve all Calls within the timeframes set out in Table C, according to the priority rating reasonably set by Customer.

Table C:          
Call Response and Resolution – Within Prime Hours
Service Level DTS shall provide a Response to, Resolve, and provide Progress Updates on, all Calls within the timeframes set out below.

Priority rating

Response time

Resolve time

Progress Update time

Priority 1 Call

30 minutes

2 hours

Every 20 minutes

Priority 2 Call

1 hour

8 hours

Every 2 hours

Priority 3 Call

4 hours

3 Working Days

Every 1 Working Day, during Business Hours

Applicable hours Within Prime Hours of Availability (8am to 6pm Monday to Friday excluding Public Holidays)
Frequency of measurement Per Call.

 

Call Response and Resolution – Outside of Prime Hours
Service Level DTS shall provide a Response to, Resolve, and provide Progress Updates on, all Calls within the timeframes set out below. 

Priority rating

Response time

Resolve time

Progress Update time

Priority 1 Call

1 hour

4 hours

Every 1 Hour

Priority 2 Call

4 Hours

Next business Day

Every 4 hours

Priority 3 Call

8:30 Next Business Day

3 Working Days

Every 1 Working Day, during Business Hours

Applicable hours Outside Prime Hours of Availability
Frequency of measurement Per Call.

Section 8.03       Faults noticed by DTS:
DTS shall notify Customer’s staff listed in Appendix A of this Schedule as soon as DTS become aware of any fault or interruption to the Services, and DTS shall promptly log any such problem or incident as a Call with the DTS Front Desk.

Section 8.04       Escalation:
Until an incident is resolved, DTS shall escalate management of the incident by phoning and emailing the people detailed in Appendix A in accordance with the timeframes in the table below. The escalation times below are calculated, from the time at which the Call was first logged:

(a)           for Priority 1 and Priority 2 Calls, on a 24×7 basis; and

(b)          for Priority 3 Calls, during Business Hours.

Section 8.05       Each party is responsible for updating the other party (by notice in writing) on any changes to the contact details of its representatives in Appendix A.

Escalation Table:

Table D:           Escalation Table
Priority rating

Time after Call logged

Contact the following people by phone and email
Priority 1 Call 

Immediately

  • DTS Network Operations Manager
  • Customer IT Service Desk

2 hours

  • DTS CEO
  • Customer IT Service Manager

4 hours

  • DTS CEO
  • Customer CIO

6 hours

  • DTS CEO
  • Customer Chief Executive
Priority 2 Call

Immediately

  • DTS support desk
  • Customer IT Service Desk

8 hours

  • DTS Network Operations Manager
  • Customer IT Service Manager

10 hours

  • DTS CEO
  • Customer CIO

12 hours

  • DTS CEO
  • Customer Chief Executive
Priority 3 Call

3 Working Days

  • DTS Network Operations Manager
  • Customer IT Service Desk

5 Working Days

  • DTS CEO
  • Customer CIO

Article IX.  Materially Deficient Services

Section 9.01       The Services shall be considered to be “Materially Deficient” in the case of a failure of any Service or Service Level in the manner set out the following table.  If the Services are Materially Deficient, then the client is entitled to terminate the contract.

1.1.1

Service / Service Level

Failure

Service Availability Any instance where less than 97% Availability was achieved in any 3 month period.
Outages Three or more Outages, within any one month, that each exceeds 4 hours.Six or more Outages, within any 3-month period, that each exceeds 4 hours.
Incident Resolution Three or more instances, within any one month, in which the time taken to Resolve a Call was exceeded by more than 100% of the relevant Service Level.Six or more instances, within any 3-month period, in which the time taken to Resolve a Call was exceeded by more than 100% of the relevant Service Level.

Section 1.01       Payment Terms

Invoicing:  DTS shall invoice the Customer for Services on or after the 1st day of each month in which Services will be provided starting from the 1st day of the month following the Commencement Date.  The first invoice will include charges for Services from the Commencement Date until the end of the month.

Invoices and supporting documentation: DTS will provide the Customer with a valid invoice for Services in accordance with this Schedule 3.  For an invoice to be valid, it must be a valid tax invoice for the purposes of the GST Act; and accompanied by supporting documentation in respect of Services provided in that month as reasonably required by the Customer from time to time in order to determine the accuracy of the invoice.

Payment: Provided a valid invoice is received by the Customer by the 15th day of the month the Customer will make payment to DTS on the 20th day of the month in which the invoice is received. If the invoice is received by the Customer after the 15th day of the month the Customer will make payment to DTS within five business days of receipt of the invoice.

Article II.  Time and Material Rates

Section 2.01       In addition to the fixed charges set out in the preceding clause, DTS shall charge Customer for time and material incurred in providing the Services at the following rate.  The maximum hourly rates for DTS personnel are:

Role Business Hours Charges per hour Out of hoursCharges per hour
Network Engineer $119.00 $199.00

Article III.  Break Fee

Section 3.01       Calculation of Break Fee:

The Break Fee payable by Customer on termination of this Agreement under clauses 14 of General Terms and Conditions is as determined under the break fee table set out in section XI of this Schedule 3.  The Termination Date shall mean the date that DTS or the Customer gives notice of Termination of this Agreement pursuant to the termination provisions in the terms and conditions.

NOTE: The following services are excluded from any calculation of Break Fees and are payable in full for the whole contracted period:

Dark Fibre

 Section 3.02       Right to Audit:

Customer may itself audit or have audited by a third party the calculation and components of the applicable Break Fee and DTS will cooperate and provide all assistance and information reasonably required to enable Customer or the third party to do so.  DTS may require any information it provides in the audit to be held in confidence.  Clause 11 of the general terms and conditions of this Agreement will apply to any such audit.

Section 3.03       Payment of Break Fee:

The amount of the applicable Break Fee (or a fair estimate of that amount where the actual amount is unable to be determined at that time) shall be payable by Customer within 30 days of the Termination Date.

Article IV.            Break Table

This table sets out the applicable Break Fees

Reason for termination Break Fee Payable
Customer at will
  • Unavoidable Costs, plus
  • 30% of the fixed monthly charge defined in this Schedule 3 and any subsequent variations to the price for each month from the Termination Date till the end of the Term.
  • Unavoidable Costs, plus
  • 30% of the fixed monthly charge defined in this Schedule 3 and any subsequent variations to the price for each month from the Termination Date till the end of the Term.
  • Unavoidable Costs
Customer non-payment
Force Majeure

Schedule 4 – Operational Change Control

Client are required to advise DTS of hardware they intend to place within their leased rack(s) prior to deployment to allow for accurate power capacity management practice to be followed. Customers are required to submit a request to install additional hardware and wait to receive approval before installing new equipment. DTS reserves the right to reject such requests where deployed hardware is deemed likely to have a detrimental effect on other clients services.

Customers must email support@dts.net.nz for approval before deploying hardware other than that stipulated within this contract.

Schedule 5 – Service Review Process

  1. 1.         Relationship and Service Management

Relationship Managers will be appointed and perform the functions set out in this Agreement.

Initially the Relationship Managers will be the DTS sales representative, and the Customer representative negotiating this Agreement.  As the project to establish the service progresses the DTS technical team and the senior customer IT person they are working with will manage operational aspects of the relationship.

Once the Service is established responsibility for managing the relationship between DTS and Customer will transition over the first year to the DTS sales representative, and the Customer IT Services Manager.

The Relationship Managers will ensure that regular and comprehensive management and reporting disciplines are in place for the management and development of the Services; and that they meet regularly to ensure the responsibilities each party has under this Agreement are being fulfilled.

  1. 2.         Service Reviews

The service review meeting will be held weekly while the project to establish the Service is under way, then typically monthly to quarterly once the service is live in a production.

Annual Service Reviews
Attendees DTS sales representative & Customer IT Services ManagerDTS Network Operations Manager as required
Frequency/Timing Initially quarterly, but at least annually.
Objectives Ensure each party’s expectations of this Agreement are being met.Manage projects.Resolve relationship issues.Agree material changes to the Agreement
Scope/Content ü Review of SLA performance and the Service in generalü Review of projects statusü Review Customer business changes and drivers for future IT
Outputs Agreed variations to Agreement schedules, project plans and other actions

SCHEDULE 6 – GENERAL TERMS AND CONDITIONS

1.0                   Background

IT Services Relationship: The Customer has selected DTS to provide co-location Services as described in this Agreement. Recorded here are the general rights and obligations of the Parties in relation to the supply of those Services.

DTS to Provide the Services:  During the Term DTS will perform the Services in accordance with the terms of this Agreement.

2.0                   Agreement

The parties enter into this Agreement, which includes all its Schedules, to record the terms and conditions on which the Customer purchases and DTS supplies the Services.

Unless otherwise stated in the schedules, if there is any inconsistency between the terms set out in the general terms and conditions of the Agreement and the other Schedules, the inconsistency is to be resolved in favour of the general terms and conditions.

3.0                   Relationship Management

Appointment of Relationship Managers: Each party will, at all times during the Term, ensure it has appointed one suitably qualified person as its Relationship Manager.  The initial Relationship Managers are set out on the front page of this Agreement.

Responsibilities of Relationship Managers: The Relationship Managers will:

3.1.1                 Maintain the relationship: have primary responsibility for establishing and maintaining an effective, proactive business relationship between the Parties;

3.1.2                 Recommend: assess and recommend technology and process improvements which will realise benefits for both Parties;

3.1.3                 Change Requests: ensure that Change Requests are promptly considered and managed in accordance with the Change Control Processes;

3.1.4                 Exchange information: exchange information about the Parties’ respective objectives, visions, needs and risks; and

3.1.5                 Strategic: undertake such other responsibilities or actions consistent with the strategic benefits of the relationship intended by the Parties and as reasonably requested by either of the Parties.

4.0                   Substitution of Equipment or Software

4.1.1                 Substitution of the Customer Environment: Except with the prior written approval of the Customer, DTS may not remove, substitute, change, or add to the Customer Environment [Is this the same as “Customer Equipment”?].  If such changes are approved then DTS will ensure that: (i) the Services will not be adversely affected; and (ii) such a removal, substitution, change, or addition (and any impact and cost of such), is advised and agreed with the Customer through the Change Control Processes.

4.1.2                 Upgrades or Replacement Equipment: The Customer may require (and DTS may request through the Change Control Processes) upgrades or replacement of part or all of the Customer Environment if that Party is of the view (acting reasonably) that part or all of the Customer Environment is degrading or will degrade the Services or is preventing or will prevent the Customer’s business needs being met.  Such upgrades or replacement (including any cost of such) will be agreed and implemented under the Change Control Processes.  Unless otherwise agreed, any upgrade or replacement of the Customer Environment shall be solely at the Customer’s cost.

4.1.3                 Permission for substitution: The Customer Environment can only be substituted, changed, added to, upgraded, or replaced pursuant to clauses 4.1.1 or 4.1.2 with the express written permission of the Customer.  Where a refusal to grant such permission will demonstrably impede DTS’s ability to perform its obligations under this Agreement, this must be notified to the Customer at the time the request under clause 4.1.1 or 4.1.2 is made (if the request is made by DTS), or as soon as reasonably practicable thereafter (if made by the Customer).  If the Customer refuses to give such permission, then clause 16.0 (Disputes) may be invoked by either Party and DTS shall be excused from and shall not be liable for any failure to provide the Services in accordance with this Agreement.

5.0                   Joint Responsibilities

In entering into and performing its obligations under this Agreement, each party represents and agrees:

5.1.1                 Power and authority: it has full corporate power and has obtained the required authority to enter into and perform its obligations under this Agreement;

5.1.2                 Authority levels: that where approvals or decisions are contemplated by this Agreement the party’s decision will be given promptly and will be within that party’s delegated authority levels;

5.1.3                 No breach of other agreements: that the full performance of its obligations will not result in the breach of any other agreement;

5.1.4                 Care and skill: to perform its obligations with care, skill and diligence;

5.1.5                 Co-operate: to co-operate with the other party in good faith and perform their respective obligations under this Agreement in a timely manner.

5.1.6                 Provide access to sites and resources: to provide the other party with reasonable access to resources and/or sites to the extent necessary to allow the other party to perform its obligations under this Agreement subject to the other party complying with all reasonable security, operational and confidentiality measures the party providing access, including remote access may require.

5.1.7                 Keep full records:  to keep full, true and up-to-date accounts, records and documentation relating to the Services, and retain the same for a period of one year after this Agreement terminates

5.1.8                 Comply with health and safety obligations: to comply with the Health and Safety in Employment Act 1992 and any health and safety polices as notified in writing to the party  in all relevant respects particularly when on the premises of the other party and, for that purpose, to use reasonable efforts to advise the other of its relevant safety plans and identifiable hazards;

5.1.9                 Notify other party: to promptly notify the other party of:

5.1.9.1          Inability to perform:  any matter which may materially impact on the notifying party’s ability to perform its obligations under this Agreement;

5.1.9.2          Disputes:  any matter in dispute between the Parties provided that such notification shall not in itself be construed as an admission of liability or breach; and

5.1.10              Security and confidentiality:  comply with the other party’s reasonable security, operational, and confidentiality requirements as set out in this Agreement and as advised to that party by the other from time to time in writing.

6.0                   DTS’s Responsibilities

Equipment and software:  DTS will ensure that, for the term of this Agreement, it:

6.1.1                 Rights:  owns, or has the rights to use the Facilities Management Environment [or Data Centre?] in accordance with this Agreement;

6.1.2                 Maintains:  will maintain the Facilities Management Environment [or Data Centre?] in accordance with this Agreement (excluding where this is identified otherwise agreed by the Parties in writing to be the Customer’s responsibility);

7.0                   Customer Responsibilities

The Customer will at all times during the Term, including any Disengagement Period:

7.1.1                 Right to use:  use reasonable endeavours to ensure that DTS has the right to use and deal with the Customer Environment as contemplated by this Agreement;

7.1.2                 Use Services properly: ensure the Customer’s personnel use the Services properly in accordance with this Agreement and any written instructions which may be received from DTS prior to use of the particular Services;

7.1.3                 Provide documents: at no cost to DTS, use all reasonable endeavours to make available relevant technical documentation held by the Customer (or authorised agents) in relation to the Customer Environment [or Equipment?] and such other documentation as DTS may reasonably request to allow DTS to provide the Services (subject to such request not being unreasonable as defined by standard practice within the information technology industry, in which case the Customer shall be entitled to charge a reasonable amount for the time required to prepare such document copies);

7.1.4                 Make good damages: use all reasonable endeavours to repair, replace, or put right any damage caused solely by a fault in the Customer Equipment, or by negligence or deliberate acts of Customer staff or their subcontractors that results in material damage or cost to DTS.

7.1.5                 Maintain the Customer Environment [or Equipment?]: maintain and update the Customer Environment [or Equipment?] as reasonably required to ensure that DTS can perform the Services in accordance with the Service Levels.  Proposed or requested updates of the Customer Environment will be considered and implemented according to the Change Control Processes.

7.1.6                 Pay all charges: pay all valid invoices on or before the Due Date.

7.1.7                 Further obligations: In addition, the Customer shall:

7.1.7.1          Comply with all applicable laws, regulations, standards and codes, including in particular (but not limited to) the Privacy Act 1993, the Fair Trading Act 1986, the Copyright Act 1994, the Defamation Act 1992 and the Crimes Act 1961.

7.1.7.2          Use the Services for lawful purposes only. Transmission or storage of any information, data or material in violation of any New Zealand law is prohibited. This includes, but is not limited to, copyrighted material, material legally judged to be threatening or obscene, or material protected by trade secret or other statute. The Customer agrees to indemnify and hold harmless DTS from any claims resulting from the Customer’s breach of these requirements howsoever arising.  Spamming, or the sending of unsolicited email (as defined by the Unsolicited Electronic Messaging Act 2007), from a DTS server or using an email address for such purposes that is maintained on DTS’s infrastructure is strictly prohibited. DTS will be the sole arbiter of what constitutes a violation of this provision.

7.1.7.3          Ensure that all information provided to DTS is current and correct.

7.1.7.4          Advise all third parties who use the Services provided to the Customer or via the Customer’s account of these General Terms and Conditions to facilitate compliance by such third parties with these terms and conditions. The Customer agrees to accept all responsibility for their accounts regardless of who uses them.

7.1.7.5          Accept complete responsibility for all use of his/her/its account and of the Customer’s identifier(s), and DTS is entitled to rely entirely upon use of any password or other identifier as evidence of the Customer’s identity and authority unless other specific arrangements are agreed between the Parties.

8.0                   Indemnities

Indemnity:  The end user (“Indemnifying Party”) agrees to indemnify DTS (“Protected Party”) against any losses, claims, liabilities or expenses arising out of or in connection with any breach of this Agreement, tort (including negligence), equity, or other action, or contravention of any statute, by the Indemnifying Party.

Indemnity management:  Where the Protected Party is indemnified by the other under this Agreement, then the following shall apply upon the Protected Party becoming aware of the relevant event indemnified against (“the Claim”):

8.1.1                 Notice: the Protected Party will give notice to the indemnifying party of the Claim;

8.1.2                 Mitigation: the Protected Party will make all reasonable efforts to minimise the impact or effect of such Claim, liability or expenses;

8.1.3                 Control of defence:  the Protected Party will give the indemnifying party full opportunity to control the response to, and the defence of, the Claim (including, without limitation, any settlement or compromise of the Claim);

and

8.1.4                 Consultation: the Parties will consult with a view towards arranging such response as may be appropriate to protect the interests of both Parties in the circumstances.

Survival of indemnities: Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the Parties, and survives termination of this Agreement.

9.0                   Limitation on Liabilities

Exclusions:  In no event will the measure of damages against any party for any breach of this Agreement, tort (including negligence), equity, or other action or contravention of any statute include, nor will a party be liable for:

9.1.1                 Fault of other party: any breach of this Agreement to the extent that the breach is attributable to the prior default, negligence, misconduct or breach of the other party, its employees, subcontractors or agents;

9.1.2                 Indirect:  any amounts for loss of income or profits, or for any indirect consequential or punitive damages of any party, including third Parties; or

9.1.3                 Force Majeure: Any loss or damage directly or indirectly arising out of or in connection with any failure to perform any term of these Terms and Conditions where such failure is caused directly or indirectly by an act of God, fire, damage related to sprinkler discharge, armed conflict, labour dispute, civil commotion, intervention of a government, inability to obtain labour, materials or facilities and accidents, interruptions of, or delay in transportation, or any other cause outside of the party’s reasonable control.

Not excluded or limited: The exclusions and limits described in this clause 10 shall not apply to exclude or limit either party’s liability for loss or damage suffered by the other party as a result of:

9.1.4                 breach of confidentiality obligations; or

9.1.5                 breach of indemnity obligations of this Agreement.

Insurance:  It is the responsibility of the Customer to ensure it maintains suitable insurance cover for any server or other property of the Customer’s that is placed in DTS’s possession for the purpose of providing Services under this Agreement, or for any losses to the Customer or any third party that be consequent on any failure, or disruption, of the Services provided by DTS under this Agreement.

Consumer Guarantees Act:  The Customer agrees that it is acquiring the Services from DTS for the purposes of a business, as defined in the Consumer Guarantees Act 1993.  Accordingly, the provisions of the Consumer Guarantees Act 1993 do not apply to this Agreement.

Survival:  This clause 9.0 shall survive termination of this Agreement.

10.0                Subcontracting

Subcontractors: DTS may appoint subcontractors to perform any part of the Services under this Agreement. Any such subcontractors will be deemed to be DTS employees for the purposes of this Agreement.

11.0                Confidentiality

Information to be Confidential: A party receiving Confidential Information (“Recipient”) shall treat, and shall ensure that its servants, agents, and any subcontractors treat, the Confidential Information with confidence;

Use: The Parties agree to not use the Confidential Information (nor allow it to be used) for any purpose other than to perform its obligations under this Agreement, and to:

11.1.1              Storage: store and keep all materials containing Confidential Information in such secure custody (as may be appropriate given the form of such materials);

11.1.2              Care: exercise the same standard of care in the treatment and protection of the Confidential Information as it exercises for its confidential information; and

11.1.3              Return: return all copies of the Confidential Information (and materials containing Confidential Information) to the other party upon termination of this Agreement.

12.0                Assignment

Assignment: The Customer may not transfer, or assign this Agreement without the prior written consent of DTS.

13.0                Termination

13.1.1              In addition to any other rights of termination granted to either party under this Agreement, this Agreement and all Services will be terminated on the expiry of the term set out in Schedule 3.

13.1.2              Either party may terminate this Agreement on written notice to the other party, if the other party enters into receivership or liquidation (other than for legitimate purposes of internal reorganisation) or enters into a composition with its creditors or ceases or threatens to cease to carry on business.

13.1.3              Notwithstanding any other provision of this Agreement and in addition to any other rights that DTS may have in relation to default of the Customer, DTS may terminate this Agreement (and all services provided  under this Agreement) if:

13.1.3.1        Customer breaches any material obligation under this Agreement and fails to remedy that breach within 14 business days after DTS has given written notice requesting remedy of that breach; or

13.1.3.2        On 14 days written notice to Customer if Customer fails to pay any amount due to DTS under this Agreement and fails to remedy that breach within a further 14 business days after receipt of the notice.

13.1.4              In addition to rights of termination set out above, DTS may suspend the Services as an alternative to termination of the Agreement.  DTS will provide Customer with notice if it chooses to exercise this option.

13.1.5              On any termination pursuant to clause 13.1.3 or 13.1.4 , DTS is entitled to payment of the Break Fees set out in Schedule 3.

13.1.6              Customer may terminate this Agreement on 30 days notice in writing in the event that the Services are considered to be Materially Deficient (in accordance with Schedule 3).

13.1.7              Termination or expiry of this Agreement does not affect the rights or obligations of the parties which:

13.1.7.1        have accrued prior to or accrue on termination; or

13.1.7.2        by their nature are intended to survive termination of expiry.

13.1.8              On termination or expiry of this Agreement, each party will return to the other all data or other property held by the first party that is owned by the second party.

14.0                Copyright

14.1.1              DTS’s logos, unique products and service names are the property of DTS Limited. Copyright is asserted in all the contents of DTS’s public facing websites (including text, graphics, logos, icons, sound recordings and software) and all promotional material produced by or on behalf of DTS. Except as expressly authorised by these General Terms and Conditions, the Customer may not in any form or by any means:

14.1.1.1        adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of DTS websites; or

14.1.1.2        commercialise any information, products or services obtained from any part of DTS’s websites without DTS’s written permission ahead of any such practices.

15.0                Non Waiver

15.1.1              Failure by any party to enforce any right or obligation with respect to any matter arising in connection with this Agreement shall not constitute a waiver as to that matter or any other matter either then or in the future. Any waiver of any right or obligation under this Agreement shall only be of any force and effect if such waiver is in writing and is expressly stated to be a waiver of a specified right or obligation under this Agreement.

16.0                Disputes

16.1.1              If any dispute arises out of or in connection with the Agreement, neither party shall commence any court or arbitration proceedings relating to the dispute unless that party has complied with the provisions of this clause 16.

16.1.2              A party claiming a dispute will promptly give notice to the other party specifying the nature of the dispute. On receipt of a notice claiming a dispute has arisen, the parties will endeavour in good faith to resolve the dispute.

16.1.3              If the parties do not resolve the dispute within five (5) business days of receipt of the notice claiming a dispute has arisen (or such further period as agreed in writing by them), then a mediator will be appointed using the following process:

16.1.3.1        The dispute shall be submitted to mediation, administered by an independent mediation service agreed by both parties and held in accordance with its mediation rules. If a mediation service cannot be agreed to then the parties will accept one selected by the President of the Arbitrators and Mediators Institute of New Zealand

16.1.3.2        Pending resolution of any dispute the parties will continue to perform their obligations under the Agreement without prejudice to their respective rights and remedies.

16.1.4              If the dispute is not settled by mediation, then where the dispute relates to the standard, quality or nature of Services provided, the parties must enter into binding arbitration. If the parties cannot agree on a mutually acceptable arbitrator then the parties will accept an arbitrator selected by the President of the Arbitrators and Mediators Institute of New Zealand. Either party may take other disputes or matters to a Court, after complying with this clause16.

16.1.5              Each party shall be liable for any costs, debt collection, lawyer or court fees reasonably incurred in the collection of undisputed amounts or disputed amounts found by mediation or arbitration to be owing by one party to the other.

17.0                Governing Law

This Agreement shall be governed by and construed in accordance with the laws of New Zealand.

18.0 Contractor access

Contractors may be issued temporary keycards at the discretion of the datacentre manager.  The card number shall be recorded in the sign-in/out book and must be returned when sign-out occurs unless otherwise arranged.

18.1 Supervised access is not required and contractors may retain their keycards for out of hours access.

18.2 General installation standards apply to all work carried out by contractors.

19.0 Visitor access

All visitors are to sign in and out with reception during business hours.

19.1 All visitors, with the exception of full rack holders, are to be supervised at all times while in the datacentre.  No visitor shall be left unattended in the datacentre while any cabinets are unlocked.

19.2 Full rack holders visiting out of business hours shall disarm the floor security system on arrival and rearm on exit.  The floor security alarm combination will be made known to full rack holders.

20.0 Allocation of key cards

Full cabinet holders shall be entitled to one key card with access to the building front door, level 4 stairwell and lift, and the datacentre door.

20.1 Additional key cards are available on request and will be charged at $50.

20.2 The level 4 security system combination shall be made known to the full rack holder.

21.0 General

Only DTS staff or nominated representatives are permitted to run data or power cables outside of or between cabinets.  Any cabling found to have been installed in violation of this rule may be disconnected at any time without prior warning.

21.1 DTS will hold a master key for all secured areas of the datacentre including full rack holder’s cabinets.

21.2All cabinets and distribution boards are to be secured at the completion of any work

21.3Lost access cards shall be replaced at the discretion of the datacentre manager and a lost card charge of $50 may apply.

22.0 Change control – Shared rack holders

Moves adds and changes requested by shared rack holders must be documented by filling out the Change Request form.  Change requests to be reviewed by the designated manager.  Change windows to be strictly adhered to.

23.0 Change control – Full rack holders

For full rack holders, a Change Request form must be filled out for equipment additions only.  The submitted change request form must detail the equipment make and model and be accompanied by a manufacturer’s specification document.  Once authorised it is at the discretion of the full rack holder as to a time and date for the equipment installation.

24.0 General

All network changes to DTS routers/switches made by DTS engineers shall be reviewed by the change manager before application.

24.1 Any changes, including network changes, considered high risk by the change manager must be notified to all datacentre customers.

24.2 Generator tests will be performed within business hours once per month. These tests are performed under change control processes, are very low risk, and classified as a standard change.

25.0 General installation standards – Cable tray use

All data cabling shall be run in overhead data trays

25.1 Data cabling in data trays shall be tied to the tray with Velcro strips (not nylon zip ties) every two tray sections (approx. 20cm).

25.2 Data cabling shall be tidy with every effort made to maintain straight cables and logical cable paths and eliminate or manage cable slack.

25.3 Data cabling ingress to cabinets shall be via the ‘data’, as opposed to the ‘power’, cable entryway.

25.4 It is permitted to tie new cables to existing cable bundles.

26.0 General installation standards – Full cabinet holder specific

No equipment shall be installed in full cabinets in such a way as to prohibit the closure of the front or rear cabinet doors

26.1 Withstanding clause 1; standards applied to equipment installed in full cabinets are at the discretion of the full cabinet holder.

26.2 All equipment installed in shared cabinets must support its own weight on rack rails or a load bearing shelf.  If a shelf is used to support equipment then any rack units that are used by the shelf shall be billable to the customer.

26.3 Equipment is not permitted to encroach into adjacent rack units unless that rack space is being purchased by the client.  This includes factory fitted rubber feet on most routers or heavy equipment hanging off front rack mount ears.

26.4 Small form factor, non-rack mount equipment such as routers, firewalls and external hard drives may be positioned on top of self-supporting equipment owned by the same customer as long as the rack space utilised by this configuration is billed to the customer.

26.5 Cable (power and data) slack shall be properly managed, either by coiling and tying or securing to the cabinet (within the rack space owned by the customer) to the satisfaction of the DTS supervisor on duty.

26.6 Total combined weight of any given rack and the gear located within it cannot exceed 500 kilograms.

26.7 48 power sockets are available as standard. Price is available on request for additional sockets.

27.0 General installation standards – Shared cabinet holder specific

the datacentre is to be left tidy at the completion of any work.

27.1 All unused equipment and tools are to be removed from the datacentre at the completion of work.

27.2 Any unused data and power cables are to be removed from the datacentre at the completion of any work.

27.3 Any unused data ports on DTS managed active devices are to be deprovisioned immediately at the completion of any work.