Terms of Service

Terms of Service:
These are the Terms of Service that apply whenever Cyclone (the Company, we, us or our) provide business Services to the Customer (“you” “your”). Services include, but are not limited to, Managed Services, Helpdesk, Project Services, Technical Support, Training or Professional Consultancy. The Customer acknowledges that the acceptance of a recommendation, proposal, quote is acceptance of these Terms of Service and any specific individual term and / or scope set out in the agreement. In addition to any other form of acceptance of these Terms of Service, acceptance shall be deemed to have occurred in any event upon delivery by Cyclone to the Customer of any goods and services requested by the Customer.
In addition the Customer acknowledges that it is accepting of Cyclone’s Terms and Conditions of Sale www.cyclone.co.nz/terms-and-conditions
Cyclone and the Customer acknowledge that this Agreement, Cyclone’s Terms of Service and Cyclone’s Terms and Conditions of Sale document, when read together both constitute the entire Agreement between both parties. The Customer acknowledges that it has not relied upon any other assurances or representation by Cyclone other than those contained within this agreement.

Quality of Staff, Service and Support:
Cyclone is committed to provide solutions that exceed The Customers expectations. Our goal is to create a long lasting mutually beneficial partnership. Cyclone guarantees that the agreed services shall be delivered in a competitive, reliable, timely and professional manner.
Cyclone will ensure that all services we provide are performed in the manner that we have both agreed to.
Cyclone may be requested to perform other tasks or certain services outside of the scope of this agreement. For any such work that is requested by, or agreed to by the Customer, Cyclones standard Terms of Service and Terms and Conditions shall prevail. If we deem any service requests to be out of the scope of this Agreement, we will ask for your approval before performing any work.

Onsite Resources, Sickness & Annual Leave:

Where Cyclone provides a permanent resource scheduled to complete regular work onsite at a customer premises, from time to time onsite staff based at the school will fall sick or may need to take leave during school time. All Cyclone support staff are encouraged to only take leave during term break

Annual Leave: When an Onsite Engineer is requiring blocks of Annual Leave of two days or longer in duration, staff are required to provide one month notice to Cyclone. Approval of Annual Leave will need to be accepted by all parties, having due regard to both the employees and employer at the time of the request. Cyclone will provide onsite cover replacement for leave in excess of two days.

Cover for leave requests which are shorter than that of two days will be reviewed on a case by case basis and consideration for cover availability will be taken into account prior to approval. Approval will only be given once mutual agreement has been obtained between Cyclone and the customer.

Sick Leave: When an Onsite Engineer is requiring sick leave on a day when cover at the customer site is normally provided, Cyclone must be notified at least one hour prior to the start of the shift. If Sick Leave is taken in excess of three working days, a medical certificate will be provided if required. Cyclone will notify the customer as soon as possible on the first day and replacement cover will be provided on a case by case basis, taking into account suitable replacement availability and the duration of cover required.

THE CUSTOMERS COMMITMENT: Wherever Cyclone provides Services it is the Customers responsibility to:

Make sure all information provided to Cyclone is fit for purpose and accurate at the time it was provided to Cyclone.
Allow Cyclone to act on behalf of the Customer when required and as directed by the Customer when dealing with other supply or service partners.
Meet any hardware and software requirements that you need to have in place for us to meet our service obligations. The customer is responsible for replacing devices on a reasonable lifecycle.
Supporting products that are outdated can create compatibility issues or a service can become unproductive and cost-prohibitive for Cyclone to maintain. If you do not have all these minimum standards in place, we will work with you on a plan to bring your network and devices up to our minimum standards. We will do our best to support any items that do not meet a required standard. However, if an item requiring support does not meet a reasonable expected standard, we do reserve the right to charge you for any time incurred for supporting that item.
When the Customer is considering additional ICT products or hardware that Cyclone may have to use, support or deploy the Customer should consult with Cyclone before purchase.
The Customer should use Cyclone Services only for their purpose and in accordance with the terms of this Agreement and follow all reasonable directions we provide about the use of our Services. You must not use any Cyclone services for any unlawful, offensive, obscene or fraudulent purpose.
Any remedial work or changes can take time, while all care is taken to do services outside of peak hours, some tasks may interrupt normal service. Whenever we can, we will provide prior notice of this and we will estimate the time services may be disrupted. However, our provision of service is conditional upon your acceptance of the possibility of disruption of such services and any consequential loss or damage and your waiver of any claim for such interruption or its consequences.
When required permanently or for a fixed term onsite, the Customer will provide a working environment equal to those used by the Customers own team, as reasonably necessary for Cyclone to perform the services as outlined in this agreement.
Cyclone onsite support staff are happy to help your staff or associated individuals with personal technical issues. While our priority is the Customer, we also want your staff to feel comfortable that our team are part of your staff. We do however ask the Customer to set some guidelines around what fair use is and that they are accepting of this time being used. Any time used to provide such support is at the cost of the Customer.

REVISING ASSUMPTIONS & DEPENDENCIES

If, the assumptions used to develop an offering are found to be incorrect or misstated, both Cyclone and the Customer shall meet and in good faith negotiate equitable changes to the Agreement, including changing fees and pricing. Any change will only have effect for the future without any retrospective effect on fees which have already been invoiced and paid for. Cyclone will not be liable for failure to meet any obligations in this Term to the extent such failure is due to delayed, false, or inaccurate information provided by Customer.

DISPUTES

The Customer must notify Cyclone within 7 days of the occurrence of any perceived breach of service levels. If the customer is dissatisfied with any services purchased under this agreement and a dispute arises as to the interpretation of this Agreement or any matter arising out of or in connection with this Agreement, we both agree to promptly escalate the issue in our respective organisations for an amicable resolution without prejudice to the right to later seek a legal remedy. If a dispute is not resolved by agreement within 20 Business Days of notification, either party may refer the dispute to mediation.
Once referred to mediation, the Customer and Cyclone would agree on a suitable person to act as a mediator. If within 10 business days of the dispute being referred to mediation and a mediator cannot be agreed on, a mediator will be appointed by AMINZ (Arbitrator Mediators Institute of New Zealand Inc).The mediation will be conducted in accordance with the current standards of AMINZ.
If any such dispute is not resolved by mediation, the resolution process will be terminated, both Cyclone and the Customer would be entitled to pursue such legal remedies that may be appropriate.

LIABILITY LIMITATION

The liability of Cyclone to the Customer in respect of all claims arising under or in connection with this service (including directly or indirectly from any breach by us of this Agreement or from any negligence or other act or omission of Cyclone or any of our employees, business partners or contractors) will in any case not exceed an amount equal to the value of the affected service for the most recent calendar month prior to the claim being notified.
Cyclone will not be liable for any direct, indirect or consequential loss, cost or damage arising from any breach by Cyclone or any other party as a result of any failure by Cyclone or its partners to perform their obligations under any supply or service agreement, whether arising in tort, contract, from any other negligent or other act or omission of us or any of our employees, business partners or contractors, or otherwise, including, without limitation, any loss of profit, contracts, business, goodwill, data, income, revenue or anticipated savings.

ADDITIONAL SERVICES & FEES

Additional services or projects may be requested under or separate from this Agreement. Cyclone may provide Quotations, Scopes, Statement of Works (SOW) or other documentation in relation to such requests. Subject to external factors such as exchange rate fluctuations, product deletions and stock availability, it is our intention that all quotations, scopes, estimates and relevant documentation will remain valid for 30 days. When an estimate, quotation, scope, or proposal is accepted by the Customer, it will become binding.
If we undertake at your request, additional services that are not subject to any stated or agreed pricing, then those services shall be at charges based upon our normal charges for the provision of those additional services, together with additional costs or expenses incurred by us in the provision of those additional services.

FEES, PROJECTS & INVOICING

The Customer may request additional services or projects under or in addition to this Agreement. Cyclone may provide estimates, quotations, scope of work or other such documentation in relation to these requests. If Cyclone undertakes at your request, additional services that are not subject to an agreed price, then those services shall be charged at the normal services rate for the provision of those additional services, together with any additional costs or expenses incurred by Cyclone in the provision of those additional services. Additional fees may be payable for additional services or amendments to the scope of work as agreed from time to time. The terms of this Agreement will apply to such additional services or amended specifications.
Prices are subject to external factors such as exchange rate fluctuations, product deletions and availability from our wholesale partners at or below the agreed price. In the event of non-availability, Cyclone reserves the right to renegotiate an existing Services agreement.
When an estimate, quotation, scope, or order is accepted by you in writing, it will become binding. Subject to the terms of this Agreement, you will pay us the amounts for the Services as set out in the Pricing Schedule. If there is a dispute in relation to all or any portion of any of our invoices, you may only withhold payment of the disputed amount. You should advise us of the dispute and pay to us the undisputed amount when it becomes due and payable.
To sustain a high level of service, price increases are a part of doing business. Cyclone will review its services rates and notify any potential price increase of ongoing services. Any such price increase would be notified with a 60-day written notice.
Cyclone reserves the right to amend the amounts set out in Pricing Schedule or any other amounts that have been agreed with you in order to pass on any increase in third party costs that we incur in providing the Services.
If applicable, GST and any other applicable taxes will be charged in addition to all amounts owing. Invoices shall be submitted monthly. Payment of the invoiced amount is due 20th of the month following invoice. Unless otherwise agreed Cyclone will bill for the Services provided monthly and this will typically be for the next month.
However, for Projects we will usually bill you in stages throughout a project or as otherwise agreed. Payment is due at the completion of each stage. If payment is not received at the completion of a stage subject to and in accordance with this Agreement, we will reserve the right to suspend that project until payment is received, provided we have given you not less than five days prior written notice of our intention to suspend the project.
Stages would typically be noted in the Statement of Work. If stages have not been specified, we will invoice you either monthly or at the completion of the project (as agreed or otherwise specified in the Pricing Schedule).

CHANGES IN SERVICE

The Customer agrees that Cyclone may make changes in the way we provide or deliver services to our customers, so long as such modification does not have a material impact on the Services required by the Customer. Notwithstanding, we reserve the right to make any change to the Services if necessary, to protect the security of our systems or business. We will discuss options with you if the change has a material impact on the Services that Cyclone offers, or the Customer requires. We also reserve the right to move the physical location of the hosting Services at any time.

SOFTWARE LICENSES AND VIRUSES

Unless otherwise agreed we assume that you have full legal title to use any software that you ask us to install on any computer system and we may require you to provide the original media and licence information for the installation. It is your responsibility to ensure that all software that you purchase or obtain from other sources is both legally obtained and virus free. We will not be held responsible for software piracy or licensing violations on your system.

POLICE CHECKS

Cyclone undertakes police vetting for staff that provide onsite work at client sites. The NZ Police Vetting Service provides Cyclone with criminal history checks on employees and criminal history checks for overseas visas and work permits. Note: Police checks on new staff can take up to / or over a month. Where there is some urgency to get a new Cyclone staff member on your site, and the Police Check has yet to come through, Cyclone will notify Customer to ensure that they agree to their presence on-site prior to the Police Check request having been returned to Cyclone

DURATION, SUSPENSION OF SERVICE & TERMINATION

The Agreement will continue for the term detailed, subject to early termination under this clause. If termination of the agreement is required, then a minimum notice period of sixty days will apply to either the Customer or Cyclone. Termination needs to be advised in writing (or email) and accepted by your Client Relationship Manager, or other authorised Cyclone or Customer representative. Termination of the agreement shall not prejudice the Company’s accrued rights and remedies against the Customer.
Unless there is a specified expiry date to a Customer Agreement, all Agreements will automatically renew for a further period of up to 24 months from the anniversary date of the Agreement, unless 60 days’ notice has been given prior to expiry.
Either party may terminate this Agreement if the other party commits a material breach of any obligations under this Agreement and they have failed to remedy that material breach within 15 business days, or such longer time as agreed in writing, from the date of notice notifying of the breach.
Cyclone may immediately terminate this Agreement if the Customer becomes insolvent or unable to pay its debts as they fall due. All outstanding amounts become immediately due on termination of this Agreement. Termination or expiry of this Agreement shall not relieve either party from any right, liability or claim that has accrued before the date of termination; or affect the provisions of this Agreement which expressly, or by their nature, survive termination or expiry.
Subject to the termination or expiry of this Agreement the Customer must cease using or handover any services, confidential information or Cyclone (or its partners) owned hardware or software. Upon termination or expiry of this Agreement Cyclone must deliver all client data as it relates to the Agreement to the Customer in the format reasonably required by you.
Prior to the termination or expiry of this Agreement the customer may engage Cyclone to provide further paid services to assist with a transition to a new service or provider. We may refuse to provide any services during that period if the Customer has any unpaid invoices. If we undertake such services, then those services shall be charged at our standard hourly for non-contracted customers.
If the Customer does not pay the invoices from Cyclone or meet any material responsibilities, they have with us, then Cyclone may suspend or restrict any Service. Cyclone would provide the Customer with a reasonable timeframe to reach a resolution, such timeframe would be notified in writing, before suspending or restricting Services.

SEVERANCE

If any term of our Terms of Service is illegal, invalid or unenforceable for any reason whatsoever such terms are deemed to be deleted from the Agreement. Such deletion will not render the remainder of the Terms of Service illegal, invalid or unenforceable on its terms.

RESTRAINT OF TRADE

The Customer agrees that they will not for the term of this agreement, nor for a period of six months thereafter, directly or indirectly approach, offer, contract or otherwise deal with Cyclone employees, agents or subcontractors in respect of substitutions of the services provided by Cyclone, without the prior written consent of Cyclone.

ONGOING OBLIGATIONS

Where the Customer purchases software, or a service, either from Cyclone or from another supplier, manufacturer or vendor and that agreement contains an automatic renewal or any obligation, it is the responsibility of the Customer to meet that obligation or cancel any such agreement within the terms defined by that agreement. This obligation survives the termination of these Terms of Service.

HEALTH & SAFETY

Both Cyclone and the Customer confirm they will have and maintain effective policies and procedures in place to ensure compliance with the Health and Safety at Work Act 2015. When Cyclone staff are on the Customer premises, the Customer must provide any information regarding their health and safety practices relevant to us being on site and otherwise consult, cooperate and coordinate with us in relation to health and safety matters.

CUSTOMER & SITE ACCESS

In the event Cyclone holds a key/keys and/or security access to the Customers premises, the Customer must notify their Customer Relationship Manager that a key and/or passcode have been passed over to a Cyclone staff member. Should new or additional keys be supplied Cyclone also needs to be notified.
Cyclone will record keys as an internal asset and has an appropriate process to safeguard and transfer these.
While all care is taken, the customer hereby agrees that Cyclone cannot be liable for any loss associated with the key(s) in its possession.

INTELLECTUAL PROPERTY

The Customer acknowledges and agrees that Cyclone, or the people we licence products or services from is the exclusive owner of all Intellectual Property rights relating to or arising out of the goods and services provided. Neither the Customer, or any staff, users, or any partners shall not copy, modify, reproduce, reverse, disassemble, adapt or reverse engineer or permit any other person to do the same for any of the software or services provided by Cyclone under this Agreement.
Nothing in the Terms of Service will transfer to the Customer any intellectual property rights, other than the right to use the Services in accordance with the terms of this Agreement.

DATA COLLECTION, REMOTE CONTROL, SOFTWARE TOOLS & UTILITIES

By agreeing to these Terms of Service, you are giving permission to Cyclone to use the software and service tools it has available to complete any agreed or required service. Our tools help diagnose and resolve technology problems that you may have or provide a required and/or agreed service. You hereby grant Cyclone the right to access and store your data and information into the tools or services used in order for us to perform our obligations under this Agreement.
In general, Personal Information is used by us (i) to register the Customer for our Services and/or the Software, (ii) to respond to requests and provide agreed Services, (iii) to improve the features, performance and support of the Services and the Software, and (iv) to offer additional information, opportunities, and functionality. We may also use Personal Information to provide you with electronic newsletters or promotional emails, should you request to receive such communications from us. In every instance, Cyclone will solely use the information for the purpose it was provided and use reasonable efforts to limit its access of staff to any Personal Information while performing the required services.
The Customer must ensure that they have any necessary consent to release, share or input the required data, and where the information is the personal information of that user that they have the right to access and request correction of it under the Privacy Act 1993. We will comply with the Privacy Act in relation to any data and information that is subject to that Act. The customer should not input data and information into the services provided by Cyclone that by law they are not entitled to. For the avoidance of doubt, Cyclone has no rights over the Customers data or information that is hosted or stored by us as part of any Service we are authorised to provide.
We may also collect and create aggregate information about customers, sales, service issues, patterns, and data about our services and systems. We would use such information internally to improve the Services, for training, for promotional purposes and for other business purposes. We may provide it to third parties at our discretion, but unless agreed by both parties this aggregate information will not include any Personal or Site-specific Information.

TREATMENT OF CONFIDENTIAL INFORMATION

The Customers information and data shall be treated as strictly confidential by us, and Cyclone will only release information regarding your business to other parties when it specifically relates to a Service you have asked us to provide, to partners that have a justified business “need to know” or as required by law.
The Customer shall keep confidential the terms of this Agreement and any other deliverables resulting from Services offered and provided by Cyclone. This Agreement imposes no obligation with respect to Confidential Information which either party can establish by legally sufficient evidence: (a) was in the possession of, or was rightfully known by the Recipient without an obligation to maintain its confidentiality prior to receipt from Owner; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by Recipient in good faith from a third party having the right to disclose it without an obligation of confidentiality; (d) is independently developed by Recipient without the participation of individuals who have had access to the Confidential Information; or (e) is required to be disclosed by court order or applicable law, provided notice is promptly given to the Owner and provided further that diligent efforts are undertaken to limit disclosure.
The Customer agrees that Cyclone may refer to the Customers name in discussions with its Suppliers, business partners or other Customers. The Customer agrees that generic non-proprietary information about the Customers Services or Systems may be discussed with other parties including suppliers and other Customers for the means of supporting the Customer and sharing information between Cyclone and other potential Customers.
Part of the Services that Cyclone performs often require administrative access to the servers, tools, applications and devices where confidential and private information is kept. The Customer should consider Cyclone a trusted partner and this would preclude us from viewing confidential files when not required to do so to perform our duties. Our staff understand this expectation and adhere to it.
However, in the course of providing services to you, we may inadvertently see, access, or be exposed to Personal Information on customer devices, network or environment.

SECURITY OF PERSONAL & BUSINESS INFORMATION

To help protect the privacy of information a customer may transmit through use of a Cyclone Website, Services and/or Software, we use reasonable and standard industry practices to protect the information that we are authorised to have against unauthorised access. However, no company, including Cyclone, can fully eliminate security risks associated with the handling of information, including Personal Information and with the storing or transmitting of such information on servers and devices that are connected with the internet. If we learn of a security breach that involves potential Customer, Personal and Business Information and could result in theft or other risks, we will notify a customer that they can take appropriate protective steps. By using Cyclone and the Services and/or the Software, or providing Personal Information to us through any means, it is agreed that Cyclone can electronically communicate with you regarding security, privacy, and administrative issues relating to the use of the Services and/or the Software.

USE OF 3RD PARTY CONTRACTORS

We may employ third party contractors that help us with providing the Services under this Agreement, including, without limitation, to confirm transactions, process payments, store data, provide support or consultancy. We may share the Personal Information that we collect from you with these third-party contractors to the extent necessary for them to perform their services to Cyclone. All Cyclone subcontractors, if any, shall be bound to perform all obligations under this Agreement as if they were being performed by Cyclone. Cyclone personnel and any third-party contractors working for or with Cyclone in providing the Services and the Software only get access to any of the customer information (including any Personal Information therein) on a need-to-know basis and are under obligations to keep the confidentiality of such information.

WARRANTY OF SERVICE

Cyclone does not warrant that the use of any Services will be uninterrupted or error free. Cyclone and our business partners acknowledge that when services and products are provided for the purpose of your business, accordingly, the provisions of the New Zealand Consumer Guarantees Act 1993 shall not apply in relation to the supply of such Services.
The customer acknowledges that services rely on Internet connectivity, human interaction, internal and external influences and other third-party services and software. Any remedial work or changes can take time, while all care is taken to do limit interruptions, some functions may interrupt normal service. Whenever we can, we will provide prior notice of this and we will estimate the time services may be disrupted. However, our provision of service is conditional upon your acceptance of the possibility of disruption of such services and any consequential loss or damage and your waiver of any claim for such interruption or its consequences.
The Customer shall indemnify Cyclone and its affiliates and hold Cyclone and its affiliates free from any costs, expenses, loss or damage incurred by any party as a result of the Customer reselling products or services from Cyclone. If the Customer on sells or resells products or services from Cyclone, the Customer will take adequate precautions to ensure that Cyclone is protected and excluded from any possible liabilities or costs and shall reimburse Cyclone if such events occur.
The Customer agrees that vendor (manufacturer) warranties do not include restoration of the device or system to the state prior to failure, only to the configuration and status of when the vendor shipped the product from the factory. Any additional work required by the Customer to reinstate the system to its previous state (pre-failure) will be charged separately, and the Customer agrees to pay for this.
The Customer agrees to take appropriate precautions against damage to its devices and operation that could be caused by failure, interruption or errors, including making appropriate data backups. Cyclone cannot be held responsible for any loss of the Customers data, and is not liable for any direct, indirect or consequential loss, cost or damage (including without limitation, damages for loss of business profits, business interruption or loss of business information), even if Cyclone has been advised of the possibility of such damages.
The Customer will be responsible for and Cyclone has no financial liability for securing and backing up individual Devices, the computer network, systems, and all information and software stored on these. In some instances, Cyclone will recommend and manage site backup and security as discussed and agreed with the client. While we will do so with diligence and care, we cannot be held financially responsible for any security breaches or consequential damage or loss from issues including, but not limited, to security breaches, hardware failure or other IT service-related issues.
User Device Backup: Whenever we provide service or support which is computer or software based, we recommend staff members have full and reliable backup copies of data and configuration prior to the commencement of our work. Cyclone will work with the Customer to ensure an appropriate backup policy is in place. We can assist in the restoration of lost or destroyed data but are not liable for any direct loss or consequential loss and the Customer waives any right to claim for such interruption or its consequences.