Customer Agreement

1 Who this agreement is between

1.1 This Customer Agreement is between Be Digital Limited (Company number 5860393 · NZBN 9429042100683 · GST 118624793), of Auckland, New Zealand ("Be Digital", "we", "us", "our") and the customer named in the Order ("you", "your").

1.2 Be Digital supplies its products, goods and services under the brands of the Be family, each of which is a trading name of Be Digital Limited:

• Be Digital (bedigital.group) — technology consulting, project work, support and the Pay Now payment service;
• DigitalShield — managed technology and security services;
• Be Market (bemarket.nz) — hardware, software, licensing, devices and goods, including the Be Market online store;
• Be Online (beonline.nz) — domains, hosting, email, SSL, websites, digital marketing, SEO and graphic design, including the beonline.nz online store;
• Be Cloud (becloud.nz) — Microsoft 365, Azure, Windows 365, Dynamics 365, Copilot, managed hosting, backup and disaster recovery;
• Be Secure (besecure.co.nz) — cyber security, advisory, governance, testing, detection and response;
• Be Connect (beconnect.nz) — business and home broadband, fibre, voice, VoIP, Microsoft Teams calling, SIP, mobile, SMS and toll-free numbers;
• Bea (hibea.nz) — the AI receptionist service, in New Zealand and Australia;
• Be AI (beai.nz) — AI consulting, implementation, automation and managed AI;
• Be Watch (bewatch.nz) — CCTV and video, access control, alarm monitoring, automation and workforce management; and
• Be Screen (bescreen.nz) — digital signage, displays, video walls, kiosks and content.

1.3 This Agreement covers every product, good and service supplied under any of those brands, and under any brand, website or product name Be Digital adopts in future, whether ordered through us directly, through a quote, through one of our websites or online stores, by phone or by email. Where an Order names a related company of Be Digital Limited (as defined in the Companies Act 1993) as the supplier, that company is "Be Digital" for that Order and may enforce this Agreement.

1.4 This Agreement is written for customers who acquire our products and services in trade, for the purposes of a business. Where you are a consumer — that is, you acquire a product or service for personal, domestic or household use, for example home broadband or a purchase from one of our online stores — clause 22.3 and Schedule 5 apply and take priority over anything else in this Agreement.

2 Definitions

2.1 In this agreement:

• Agreement means these General Terms, the Order, the Schedules, and any later Order or variation accepted under clause 3.
• Business Day means a day other than a Saturday, Sunday or public holiday in Auckland.
• Charges means every amount payable by you under this Agreement, including Recurring Charges, one-off charges, usage charges, Third-Party Costs, Standard Fees, interest and Recovery Costs.
• Committed Third-Party Costs means amounts we have committed to pay a supplier, carrier, vendor, distributor or licensor to supply you (for example annual or multi-year Microsoft licence commitments, carrier contract terms, domain registrations, hardware orders and non-cancellable software subscriptions) which we cannot cancel or recover without cost.
• Equipment means hardware, devices, cabling, screens, cameras, network equipment and any other goods we sell, rent, lend or install for you.
• Insolvency Event means, for a person: a liquidator, receiver, receiver and manager, administrator or statutory manager being appointed to it or any of its assets; it entering into a compromise or arrangement with its creditors, or proposing to; it failing to comply with a statutory demand within the time allowed; an application being made (and not withdrawn or dismissed within 10 Business Days) to put it into liquidation; it being, or stating that it is, unable to pay its debts as they fall due; it ceasing, or threatening to cease, to carry on business; or, for an individual, being adjudicated bankrupt or entering a no-asset procedure or summary instalment order.
• Minimum Term means the minimum period, if any, stated in the Order for a Service. A Service with no Minimum Term stated has none.
• Order means the order form, quote, proposal or statement of work, issued by us and accepted by you, that describes the Services, Equipment, Charges and any Minimum Term.
• Recovery Costs means the costs described in clause 12.
• Recurring Charges means charges payable periodically for a Service, such as monthly or annual fees.
• Service means each product, good, licence, subscription or service we supply to you, including Equipment and project work.
• Standard Fees means the fees listed in Schedule 2, as updated under clause 9.
• Third-Party Costs means the cost of products or services supplied by a third party that we pass on to you.

2.2 Headings are for convenience only. "Including" means "including without limitation". A reference to a law includes that law as amended or replaced. The singular includes the plural. If you are more than one person, your obligations are joint and several.

3 How this agreement is made, and electronic signing

3.1 This Agreement is made when you accept it — by signing it electronically, by signing a paper copy, or by confirming in writing that you accept an Order that refers to it. You also accept it by using, or allowing anyone to use, a Service after we have provided you with these terms.

3.2 Each later Order you accept forms part of this Agreement, so one set of General Terms covers everything we supply you.

3.3 You agree that this Agreement may be entered into, signed and delivered electronically, and that the requirements of Part 4 of the Contract and Commercial Law Act 2017 are met by the electronic signing process described in Schedule 4. An electronic signature applied through that process identifies the person who signed and indicates their approval of this Agreement, and is as reliable as is appropriate for the purpose.

3.4 You agree that the electronic record we keep of your acceptance — the copy of the Agreement you signed, the record of the email verification, the signature, the date and time, the internet address and device information, and the document fingerprint (hash) — may be relied on by either of us as evidence in any proceedings, and that in the absence of clear evidence to the contrary it is an accurate record of what you agreed and when.

3.5 The person accepting this Agreement for you confirms that they are authorised to bind you. If they are not, they are personally liable to us for any loss that results.

4 What makes up the agreement, and which part wins

4.1 If the parts of this Agreement conflict, they apply in this order (highest first): (a) for consumers, Schedule 5; (b) special conditions written into an Order and expressly agreed by both of us; (c) the Order; (d) the service terms in Schedule 1; (e) these General Terms; (f) Schedules 2, 3 and 4.

4.2 No terms you put forward — for example in a purchase order or your own terms of trade — form part of this Agreement, even if we sign or accept the document they are printed on, unless an authorised officer of Be Digital Limited agrees to them in writing.

5 Term

5.1 This Agreement starts when it is made and continues until every Service has ended and every Charge has been paid.

5.2 Each Service starts on the start date in the Order, or if none is stated, on the date we first make it available to you.

5.3 Where an Order states a Minimum Term for a Service, that Service continues for at least the Minimum Term. At the end of the Minimum Term it continues on a month-to-month basis, unless the Order says it renews for a further fixed term.

5.4 Where no Minimum Term is stated — for example DigitalShield, which is supplied without a lock-in — the Service continues month to month until either of us ends it on 30 days’ written notice.

5.5 Some Services carry Committed Third-Party Costs with their own commitment period (for example an annual Microsoft licence). Ending a Service does not end your obligation to pay those costs for the remainder of the period we committed to on your behalf, as set out in clause 15.

6 What we will do

6.1 We will supply the Services described in the Order with reasonable care and skill, using suitably qualified people, in accordance with good industry practice and the service terms in Schedule 1.

6.2 Service levels, response times, uptime figures and timeframes are targets we work to, not guarantees, unless the Order expressly states a service credit or remedy for missing them. Where a service credit applies, it is your sole remedy for that failure.

6.3 We may change how we deliver a Service (for example its tools, platforms, suppliers or locations) provided the change does not materially reduce the Service.

6.4 We may use subcontractors and suppliers. We remain responsible for the Services they deliver for us.

7 What you will do

7.1 You will:

• give us complete and accurate information, and tell us promptly if your legal name, ownership, address, contact details or billing details change;
• give us timely and safe access to your premises, people, systems and accounts when we reasonably need it, and a safe place to work;
• nominate authorised contacts who may request and approve work and changes, and keep that list current;
• hold every licence, permission and consent needed for what you ask us to do — including consents under the Privacy Act 2020 to monitor premises, devices or staff, and the right to any content, data or materials you give us;
• keep your own passwords, credentials and access devices secure, tell us promptly about any suspected compromise, and tell us when staff join or leave;
• use the Services lawfully and in line with our acceptable use requirements in Schedule 1, and not use them to send unsolicited messages, infringe anyone’s rights, or harm any network or system;
• follow our reasonable security recommendations, or accept the risk if you choose not to; and
• pay the Charges on time.

7.2 We are not responsible for any failure or delay to the extent it is caused by you, your staff, your contractors, your systems, or a failure to do any of the things above. Additional work this causes is chargeable at our published hourly rates for the relevant service.

8 Charges, invoices and payment

8.1 You must pay the Charges set out in the Order, any usage-based charges at our current rates, Third-Party Costs, and the Standard Fees in Schedule 2 where they apply.

8.2 All amounts are in New Zealand dollars, unless the Order states another currency (for example Australian dollars for Bea in Australia), and exclude GST unless stated otherwise. GST, and any other goods and services tax, tax or levy imposed on the supply in New Zealand or elsewhere, is payable in addition. Prices shown to consumers in our online stores include GST.

8.3 Products bought through one of our self-service online stores (such as bemarket.nz or the beonline.nz domain and hosting store) are also subject to the terms and product information shown at checkout, which apply to that purchase together with this Agreement.

8.4 Recurring Charges are invoiced in advance — monthly unless the Order says otherwise. Usage charges (for example call charges, cloud consumption and SMS) are invoiced in arrears. Equipment is invoiced on supply, or on order where we require a deposit. Project work is invoiced on the milestones in the Order, or monthly in arrears for time and materials.

8.5 Unless the Order says otherwise, each invoice is due by the 20th day of the month following the date of the invoice. Payment must be made in cleared funds, without any deduction, withholding or set-off.

8.6 If you dispute an invoice in good faith, you must tell us in writing within 14 days of the invoice date, explaining which part is disputed and why, and pay the undisputed part by the due date. We will work with you to resolve the dispute promptly. An invoice not disputed within that period is treated as accepted.

8.7 Where you authorise a direct debit or card payment, you authorise us to collect each amount as it falls due. Card surcharges may apply as set out in Schedule 2.

8.8 Per-user, per-device and per-site Services are charged on the actual quantity in use. We may adjust quantities and Charges each month to reflect actual use, and true-up any under-billing in a later invoice.

9 Changes to prices and terms

9.1 We may change the Recurring Charges for a Service once in any 12-month period, and at any time to pass on an increase in a Third-Party Cost, a tax or levy, or a regulatory charge, by giving you at least 30 days’ written notice.

9.2 We may change these General Terms, the Schedules or the Standard Fees by giving you at least 30 days’ written notice. Changes that are needed to comply with law, or that do not disadvantage you, may take effect sooner.

9.3 If a change under this clause is materially detrimental to you (other than a change passing on a Third-Party Cost, tax, levy or regulatory charge), you may end each affected Service by written notice given before the change takes effect, and no early termination charge under clause 15.2(c) applies to that Service. Committed Third-Party Costs and Equipment charges remain payable.

9.4 Agreed changes to a Service (adding, removing or changing users, sites, connections or products) take effect when we confirm them in writing, including by email or through our portal.

10 Late payment

10.1 If any amount is not paid by its due date:

• we may charge interest on the overdue amount at 1.5% per month (calculated daily and compounded monthly) from the due date until it is paid in full, both before and after any judgment;
• we may charge the Standard Fees for dishonoured payments and overdue notices in Schedule 2;
• any discount, credit, promotional price or waived fee you received may be withdrawn and charged; and
• we may require a security deposit, advance payment or guarantee before continuing to supply you.

10.2 We will normally send at least one reminder before taking further steps. Nothing in this clause requires us to extend credit.

11 Suspension

11.1 If any amount remains unpaid after its due date and we have given you at least 7 days’ written notice that we intend to suspend, we may suspend or restrict any or all Services until all overdue amounts are paid.

11.2 We may also suspend or restrict a Service immediately, without notice, if: it is being used unlawfully or in breach of our acceptable use requirements; it threatens the security, integrity or stability of our network, our systems or another customer; a supplier, carrier or regulator requires it; or there is an emergency.

11.3 We will not suspend a Service in a way that we know would create a risk to anyone’s health or safety, and we will tell you the reason for any suspension.

11.4 Recurring Charges continue to accrue during a suspension caused by you. A reconnection fee from Schedule 2 applies when we restore a Service suspended for non-payment or misuse.

12 Debt recovery and costs

12.1 If you do not pay any amount when due, you must pay, in addition to the overdue amount and interest, all costs and expenses we incur in recovering it or in enforcing this Agreement ("Recovery Costs"), including:

• the commission and fees charged to us by any debt collection agency;
• legal costs on a solicitor and own client basis (that is, the full legal costs we are charged, not a court scale);
• court, tribunal, filing, search and service fees, and the costs of enforcing any judgment or order;
• the costs of issuing a statutory demand, and of any application or proceeding to place you in liquidation or bankruptcy, or to appoint a receiver;
• the costs of registering, maintaining and enforcing a security interest under the Personal Property Securities Act 1999, including repossessing, storing, insuring and selling Equipment; and
• our reasonable internal costs of staff time spent on recovery, at our published hourly rates for the relevant service.

12.2 Recovery Costs are a debt due to us on demand and form part of the Charges. Payments we receive are applied first to Recovery Costs, then to interest, then to the oldest outstanding Charges.

12.3 You authorise us to disclose your details, account history and the amount owing to debt collection agencies, credit reporting agencies, our lawyers and any assignee of the debt, and you agree that we may list any overdue amount with a credit reporter in line with the Credit Reporting Privacy Code 2020.

12.4 We may assign or sell any debt you owe us. The assignee may recover it, and the Recovery Costs, on the terms of this Agreement.

12.5 A certificate signed by an officer of Be Digital Limited stating the amount you owe on a date is evidence of that amount unless you prove it is wrong.

13 Credit, security and guarantees

13.1 You authorise us to make enquiries about your creditworthiness, including with credit reporting agencies, your bank and your trade referees, before and while we supply you, and you authorise them to give us that information.

13.2 We may set a credit limit for your account and may decline new Orders, require a deposit or advance payment, or require a guarantee while you are over it or are overdue.

13.3 Where an Order requires it, the directors or owners named in the Order must give the guarantee and indemnity in Schedule 3. Their guarantee forms part of this Agreement and is a condition of us supplying you.

14 Ending a Service or this Agreement

14.1 By you. You may end a Service by giving us written notice. Where the Service has no Minimum Term, or its Minimum Term has ended, the notice period is 30 days. Where you end a Service during its Minimum Term, clause 15 applies.

14.2 By us, on notice. We may end a Service that has no Minimum Term, or whose Minimum Term has ended, by giving you 30 days’ written notice. We may end a Service at any time on notice if a supplier, carrier or vendor stops making it available to us; in that case no early termination charge under clause 15.2(c) applies.

14.3 By either of us, for cause. Either of us may end this Agreement, or any Service, immediately by written notice if the other: (a) commits a material breach that cannot be remedied; (b) commits a material breach that can be remedied and does not remedy it within 14 days of written notice; or (c) suffers an Insolvency Event.

14.4 By us, for non-payment. We may end this Agreement or any Service by written notice if any amount remains unpaid 14 days after we have given you written notice of the overdue amount.

14.5 If we end this Agreement or a Service because of your breach, non-payment or Insolvency Event, that is treated as you ending it early and clause 15 applies.

15 Early termination and disconnection charges

15.1 The Minimum Terms and pricing we offer reflect the investment we make in setting you up, the discounts we give in exchange for a committed term, the third-party commitments we take on for you, and the people and capacity we plan around your Services. If a Service with a Minimum Term ends early, we lose the benefit we priced on.

15.2 If a Service ends before the end of its Minimum Term — whether you end it, or we end it under clause 14.5 — you must pay us, on demand:

• (a) all Charges for that Service up to the date it ends, and any Equipment Charges;
• (b) all Committed Third-Party Costs for that Service for the remainder of the period we committed to, less anything we recover by cancelling or reallocating them;
• (c) the early termination charge stated in the Order for that Service, or if none is stated, 50% of the Recurring Charges for our own (non-third-party) services for that Service for the remainder of the Minimum Term;
• (d) any unrecovered upfront costs for that Service that we discounted, waived, subsidised or spread across the Minimum Term — such as installation, set-up, onboarding, connection fees and Equipment subsidies — reduced pro rata for the part of the Minimum Term that has elapsed; and
• (e) the disconnection, deprovisioning, porting and Equipment-recovery fees in Schedule 2 that apply.

15.3 Each of us agrees that these amounts are a reasonable and proportionate pre-estimate of the loss we suffer from early termination, protect our legitimate commercial interest in the term we priced on, and are not a penalty.

15.4 We will take reasonable steps to reduce our loss, including cancelling or reallocating third-party commitments where we can, and the amount payable under clause 15.2(b) will be reduced by what we recover.

15.5 No early termination charge under clause 15.2(c) applies where you end a Service: because of our uncured material breach; under clause 9.3; or because we can no longer supply it.

15.6 Porting a number, transferring a domain, moving a licence or connecting with another provider does not by itself end a Service or the Minimum Term. Charges continue until the Service is ended under clause 14.

16 What happens when a Service or this Agreement ends

16.1 On the end of a Service or this Agreement: every Charge for that Service becomes immediately due; you must stop using the Service; and you must return any rented or loaned Equipment under clause 17.

16.2 If you ask within 30 days after the end of a Service, and all Charges have been paid, we will give you a copy of your data held in that Service in a reasonable, commonly used format, and the documentation and administrative access reasonably needed for you to move to another provider. Assistance beyond that is chargeable at our published hourly rates for the relevant service. After that 30-day period we may delete your data, unless the law requires us to keep it.

16.3 We will co-operate with the transfer of your domain names, numbers and licences to you or your new provider as required by the rules that govern them. Doing so does not release any amount you owe us.

16.4 Clauses dealing with Charges, debt recovery, early termination, Equipment, confidentiality, intellectual property, liability, disputes, evidence and guarantees, and any other clause that by its nature should, survive the end of this Agreement. Ending this Agreement does not affect rights either of us already has.

17 Equipment, ownership and security

17.1 Risk. Risk in Equipment passes to you when it is delivered to you or your nominated address, or collected by you or your courier.

17.2 Ownership of sold Equipment. Ownership of Equipment sold to you stays with us until we have received payment in full of all Charges owing by you on any account. Until then you hold it as our bailee, must keep it in good condition, insured and identifiable as ours, and must not sell, lease or encumber it other than in the ordinary course of your business.

17.3 Rented, loaned and managed Equipment (including network devices, routers, modems, cameras, screens and media players supplied as part of a Service) remains ours at all times. When the Service ends you must return it in good condition (fair wear and tear excepted) within 14 days, or make it available for collection, failing which you must pay its replacement value set out in the Order or Schedule 2.

17.4 Security interest. You grant us a security interest under the Personal Property Securities Act 1999 ("PPSA") in all Equipment we supply to you, now or in the future, and in its proceeds, as security for payment of all amounts you owe us under this Agreement. To the extent the security interest secures the price of the Equipment it is a purchase money security interest. You agree to sign anything and give any information we reasonably require to register and perfect it.

17.5 You waive your right to receive a verification statement under section 148 of the PPSA. To the extent the law allows, you and we agree that sections 114(1)(a), 133 and 134 of the PPSA do not apply to this Agreement, and you waive your rights as a debtor under sections 116, 119, 120(2), 121, 125, 126, 127, 129 and 131 of the PPSA. You must tell us at least 14 days before you change your name or any other detail that appears on the Personal Property Securities Register.

17.6 Repossession. If you do not pay when due or suffer an Insolvency Event, you authorise us and our agents to enter any premises where Equipment we own or have a security interest in is kept, during business hours and on reasonable notice, to recover it, and you indemnify us for the cost of doing so.

17.7 Equipment carries the manufacturer’s warranty. We will help you make a warranty claim. Our own obligations for Equipment are set out in Schedule 1.

18 Third-party products, platforms and licences

18.1 Many Services rely on third-party platforms — for example Microsoft, carriers and network operators (including Chorus and other local fibre companies), domain registries, cloud and software vendors, payment and messaging providers, and hardware manufacturers. We supply the Service around those platforms; we do not control them, and their availability, features and pricing may change.

18.2 Where we procure a third-party licence or subscription for you, you agree to the third party’s end-user terms (for example the Microsoft Customer Agreement), and those terms govern your use of that product. We will tell you which product we propose before you commit.

18.3 Third-party licences and subscriptions we procure in your name belong to you. Where a vendor’s commitment rules mean a licence cannot be reduced or cancelled during a commitment period, you remain liable for its cost until the commitment ends.

19 Your data and privacy

19.1 You own your data. We claim no rights in it beyond those we need to supply the Services, to keep them secure, and to comply with law.

19.2 We collect, hold, use and disclose personal information in line with the Privacy Act 2020 and our Privacy Policy. Where we process personal information on your behalf, we do so only to supply the Services and on your reasonable instructions, and you are responsible for having a lawful basis for it.

19.3 Backup, replication and disaster recovery reduce the risk of loss but cannot eliminate it. Unless backup is part of a Service in your Order, you are responsible for backing up your own data.

19.4 If we become aware of a security incident affecting your data in our care, we will tell you without undue delay, help you contain it, and support any notification you must make under the Privacy Act 2020.

20 Confidentiality

20.1 Each of us will keep the other’s confidential information confidential, use it only for the purposes of this Agreement, and protect it with at least the care we use for our own, and will disclose it only to staff, advisers, subcontractors and suppliers who need to know it and are bound by confidentiality.

20.2 This does not apply to information that is or becomes public other than through a breach, that was already known, that is independently developed, or that must be disclosed by law or by the rules of a stock exchange — and it does not prevent us disclosing information under clause 12.

21 Intellectual property

21.1 Each of us keeps the intellectual property it owned before this Agreement or develops independently of it.

21.2 Where the Order says a deliverable is created for you (for example a website, design, configuration, document or software), ownership of the intellectual property in it passes to you when you have paid for it in full. Until then you have a licence to use it only for evaluation. Our tools, templates, code libraries, methods, know-how and configurations remain ours, and we grant you a non-exclusive, perpetual licence to use them as part of the deliverable.

21.3 You grant us a licence to use the content, data, trade marks and materials you provide for the purpose of supplying the Services, and you warrant that you have the right to grant it and that our use will not infringe anyone’s rights.

22 Consumer law

22.1 You confirm that you are acquiring the Services for the purposes of a business. Accordingly, you and we agree that the Consumer Guarantees Act 1993 does not apply to this Agreement, and that it is fair and reasonable that we are bound by this agreement to contract out of it under section 43 of that Act.

22.2 You and we also agree, as parties in trade, that sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986 do not apply to this Agreement, and that it is fair and reasonable to contract out of them under section 5D of that Act.

22.3 Clauses 22.1 and 22.2 do not apply where you are a consumer. If you acquire any product or service as a consumer, you have the benefit of the guarantees in the Consumer Guarantees Act 1993 and the protections of the Fair Trading Act 1986, nothing in this Agreement limits them, and Schedule 5 applies.

23 Warranties

23.1 Each of us warrants that it has the power and authority to enter into and perform this Agreement.

23.2 Except as expressly set out in this Agreement, and to the extent permitted by law, all warranties, conditions and representations — including as to merchantability, fitness for a particular purpose, uninterrupted or error-free operation, and freedom from security breaches — are excluded. We do not warrant that any Service will make your systems immune from cyber attack, crime, loss or failure.

24 Liability

24.1 Neither of us is liable to the other, in contract, tort (including negligence), equity, under statute or otherwise, for any loss of profit, revenue, business, goodwill, anticipated savings or opportunity, for any loss or corruption of data (other than the cost of restoring it from the most recent available backup where backup is part of a Service), or for any indirect or consequential loss.

24.2 Our total liability to you for all claims arising out of or in connection with this Agreement, however caused, is limited in aggregate to the total Charges (excluding Third-Party Costs and GST) paid by you to us under this Agreement in the 12 months before the event giving rise to the most recent claim.

24.3 We are not liable for any loss to the extent it is caused or contributed to by you, your users or contractors, a third-party platform or network we do not control, your failure to follow our written security or operational recommendations, or an event described in clause 26.

24.4 The limits in this clause do not apply to: your obligation to pay the Charges and Recovery Costs; liability for fraud or wilful misconduct; breach of clause 20; your indemnity in clause 25; or any liability that cannot lawfully be limited.

25 Your indemnity

25.1 You indemnify us against all loss, damage, costs (including legal costs on a solicitor and own client basis), fines and claims arising from: your breach of this Agreement; any unlawful use of a Service by you or anyone using it with your access; any content, data or materials you or your users supply, publish, store or transmit; any claim that monitoring, recording or surveillance you asked us to set up was unlawful; and any Committed Third-Party Costs incurred at your request.

26 Events outside our control

26.1 Neither of us is liable for a failure or delay in performing an obligation (other than an obligation to pay) caused by an event beyond its reasonable control, including natural disasters, pandemics, war, terrorism, civil unrest, government action, industrial action not limited to its own staff, failure of power, carriers, networks, cloud platforms or other infrastructure it does not operate, and cyber attacks it could not reasonably have prevented. The affected obligation is suspended while the event continues. If it continues for more than 60 days, either of us may end the affected Service on written notice without an early termination charge under clause 15.2(c).

27 Resolving disputes

27.1 If a dispute arises (other than one about unpaid Charges), either of us may give the other written notice of it. Senior representatives of each of us will meet within 10 Business Days to try to resolve it in good faith.

27.2 If it is not resolved within 20 Business Days of the notice, either of us may refer it to mediation administered by the Resolution Institute or AMINZ, with the costs of the mediator shared equally. Neither of us may start court proceedings about the dispute until mediation has been attempted, except to seek urgent interim relief.

27.3 This clause does not apply to, and does not delay, the recovery of unpaid Charges. We may at any time recover overdue amounts through debt collection, the Disputes Tribunal, the courts, a statutory demand or an insolvency proceeding.

27.4 You must keep paying undisputed Charges while any dispute is being resolved.

28 Assignment and change of control

28.1 You may not assign, transfer or novate this Agreement or any Service without our prior written consent, which we will not unreasonably withhold. If you sell your business or a part of it that uses a Service, you remain liable under this Agreement until we have agreed in writing to transfer it to the purchaser.

28.2 You must tell us in writing within 14 days of any change in the control or ownership of your business.

28.3 We may assign, novate or transfer any of our rights or obligations under this Agreement (including any debt) to a related company, a purchaser of all or part of our business, or a financier, by giving you notice, and you agree to sign any document reasonably required to give effect to it.

29 Notices and communications

29.1 Notices under this Agreement must be in writing and may be given by email, by hand, or by post to the addresses in the Order or as later notified. You consent to receiving notices, invoices and other communications from us electronically.

29.2 A notice sent by email is treated as received at the time it enters the recipient’s information system, unless the sender receives an automated message that it was not delivered; if that time is after 5 pm or not on a Business Day, it is treated as received at 9 am on the next Business Day. A notice sent by post within New Zealand is treated as received on the third Business Day after posting.

30 General

30.1 This Agreement is the entire agreement between us about its subject matter and replaces all earlier proposals, representations and understandings. Nothing in our marketing material forms part of it unless it is included in the Order.

30.2 Except as set out in clause 9, a variation must be in writing and accepted by both of us, which may be done electronically.

30.3 If any provision is invalid or unenforceable, it is read down to the extent needed to make it enforceable or, if that is not possible, severed, and the rest of this Agreement continues.

30.4 A failure or delay in exercising a right is not a waiver of it. A waiver is effective only if given in writing.

30.5 You may not set off any amount you claim from us against any amount you owe us. We may set off any amount we owe you against any amount you owe us.

30.6 Nothing in this Agreement creates a partnership, joint venture, employment or agency relationship. Neither of us may bind the other.

30.7 Neither of us will, during the Agreement and for six months afterwards, directly solicit for employment a staff member of the other who was involved in supplying or receiving the Services, without the other’s written consent. General advertising, and hiring a person who responds to it, is not solicitation.

30.8 This Agreement may be signed in any number of counterparts, including electronic counterparts, which together form one instrument.

30.9 This Agreement is governed by the laws of New Zealand, including for customers outside New Zealand (such as Bea customers in Australia), except where the law of the country you are in gives you a protection that cannot be excluded. Each of us submits to the jurisdiction of the courts and tribunals of New Zealand, and we may also enforce a debt in any country where you or your assets are located.

S1.1 Services that apply to every brand

S1.1.1 Professional services and projects. Quotes are valid for 30 days unless they say otherwise. We may require a deposit before starting, which becomes non-refundable once we have started work or committed costs. Work outside the agreed scope, and changes you request, are chargeable at our published hourly rates for the relevant service and, where they affect the timetable, extend it. A deliverable is accepted when you approve it, or 10 Business Days after we deliver it if you have not told us of a material defect in that time. Work done outside business hours, at your request or because of your urgency, is chargeable at our after-hours rates. Travel beyond our standard service area is chargeable.

S1.1.2 Acceptable use. You must not use any Service: for anything unlawful, fraudulent or harmful; to send unsolicited commercial electronic messages in breach of the Unsolicited Electronic Messages Act 2007; to infringe intellectual property or privacy; to distribute malware or attempt unauthorised access to any system (a crime under the Crimes Act 1961); or in a way that interferes with our network or other customers. Fair-use limits published for a Service apply.

S1.1.3 Supported environment. Our Services assume hardware, software and operating systems that are supported by their manufacturer. Work caused by unsupported, end-of-life or unlicensed items is chargeable, and we are not responsible for their failure or insecurity.

S1.2 DigitalShield (managed technology services)

S1.2.1 DigitalShield is supplied on the plan, user count and inclusions set out in the Order. It has no Minimum Term unless the Order states one, and continues month to month until ended on 30 days’ notice. Hardware, licences and other Committed Third-Party Costs bought for you are not affected by that and remain payable under their own terms.

S1.2.2 Charges are per user (or per device or site where the Order says so) and are adjusted to the actual number in use each month.

S1.2.3 Included support covers the activities listed for your plan. Projects, new installations, moves, office relocations, onboarding of new sites, third-party vendor work, training beyond the plan, and remediation of problems caused by unsupported items or by work done by others are outside scope and chargeable.

S1.2.4 Response targets apply during the hours stated for your plan and are measured from when a request is logged through our support channels.

S1.2.5 Security controls reduce risk; they do not eliminate it. If you decline a security control we recommend in writing (for example multi-factor authentication, patching, backup or replacing unsupported equipment), we are not liable for loss that control would reasonably have prevented, and remediation of any resulting incident is chargeable.

S1.3 Be Online (domains, hosting, email, websites, digital marketing, SEO and design)

S1.3.1 Domain names. We register domain names in your name as registrant wherever the registry allows. Registration is governed by the relevant registry rules (including the .nz rules of the Domain Name Commission). Domain fees are paid in advance, are non-refundable once registered, and auto-renew unless you tell us otherwise at least 30 days before expiry. We are not liable for a domain that lapses because a renewal was not paid. We will co-operate with any transfer request in line with registry rules.

S1.3.2 Hosting and email. Hosting and email Services are subject to fair-use and resource limits. You are responsible for the content you host and send. Unless backup is included in the Order, keep your own copy of your website and content.

S1.3.3 Websites and design. Website and design projects are delivered in the stages in the Order. Deposits are non-refundable once work starts. You must supply content, images and approvals on time; delays you cause may result in rescheduling and additional charges. You are responsible for the accuracy and legality of the content you supply or approve. Ownership of the deliverable passes to you on payment in full under clause 21.2. Third-party themes, plugins, fonts and images are licensed on their own terms and may carry renewal fees.

S1.3.4 Digital marketing and SEO. Advertising spend paid to platforms such as Google and Meta is a Third-Party Cost, is payable by you whether or not a campaign achieves its goals, and is non-refundable once spent. Search rankings, traffic, leads and sales depend on factors outside our control; we do not guarantee any result. You are responsible for the claims made in your advertising, and for compliance with the Fair Trading Act 1986 and advertising standards.

S1.4 Be Cloud (Microsoft 365, Azure, Windows 365, Dynamics 365, Copilot, backup and disaster recovery)

S1.4.1 Microsoft products are supplied under the Microsoft Customer Agreement, which you accept by asking us to supply them. Microsoft licence commitment rules apply: annual and multi-year subscriptions generally cannot be reduced or cancelled after a short cancellation window (currently 7 days), and are Committed Third-Party Costs payable for the full commitment period. Monthly subscriptions may carry a price premium.

S1.4.2 Azure and other consumption-based services are charged in arrears on actual usage at our current rates. You are responsible for usage generated by your users and systems, including usage caused by misconfiguration or compromised credentials, unless caused by our negligence.

S1.4.3 Migrations are carried out on the plan agreed in the Order. You are responsible for confirming that migrated data is complete and correct within 10 Business Days of completion.

S1.4.4 Backup and disaster recovery Services operate to the recovery points and recovery times stated in the Order. They are a recovery measure and not a guarantee that every item of data can be restored.

S1.5 Be Secure (cyber security services)

S1.5.1 You authorise us to access, scan, test and monitor the systems, networks, applications and accounts within the agreed scope, and you warrant that you own them or have the written authority of their owner for us to do so. Testing outside an authorised scope will not be performed.

S1.5.2 Security testing can cause service disruption, data changes or alerts. We take care to minimise this, and you accept the residual risk of testing you have authorised. You are responsible for backing up affected systems beforehand.

S1.5.3 Detection, response and monitoring Services act on the alerts and data available to them. They reduce the time to detect and contain an incident but cannot detect every threat.

S1.5.4 Reports and findings are confidential to you and are a point-in-time assessment. Fixing the findings is your responsibility unless remediation is included in the Order.

S1.6 Be Connect (fibre and broadband, voice and VoIP, Microsoft Teams calling, SIP trunking, mobile, SMS, toll-free numbers and Bea AI receptionist)

S1.6.1 Networks. Connectivity Services depend on networks operated by others, including Chorus and other local fibre companies, wholesale carriers and mobile networks. Speeds are maximum or typical figures, not guaranteed. Installation, relocation and fault-callout charges from the network operator are Third-Party Costs, including where a technician finds no fault on the network.

S1.6.2 Emergency calling. Voice services delivered over the internet (VoIP, SIP and Teams calling) may not work during a power cut, an internet outage or an equipment failure, and the location given to emergency services may not be accurate if a service is used away from its registered address. You must keep your registered address up to date and have another way to call 111, such as a mobile phone, and must tell your staff about these limitations. If you, or someone at your premises, depends on a landline to call 111 (for example for medical or safety reasons), tell us: under the Commerce Commission’s 111 Contact Code you may be entitled to a free way of contacting 111 during a power cut.

S1.6.3 Numbers. Telephone numbers are allocated under the industry numbering rules and are not owned by either of us. You may port a number to another provider in line with the industry porting process. Porting a number does not end its Service or any Minimum Term; the porting and early termination provisions in clause 15 and Schedule 2 apply.

S1.6.4 Messaging. You must have the recipient’s consent before sending commercial SMS, include a functional unsubscribe, and otherwise comply with the Unsolicited Electronic Messages Act 2007. You are responsible for all messages sent from your account.

S1.6.5 Usage and fraud. Call, SMS and data usage is charged at our current rates. You are responsible for all usage on your services, including usage resulting from unauthorised access to your phone system, devices or accounts (toll fraud), except to the extent caused by our negligence. We may suspend a service immediately where we detect unusual usage.

S1.6.6 Bea AI receptionist and call recording. Where calls are answered, transcribed or recorded by Bea or another automated service, you are responsible for informing callers and complying with the Privacy Act 2020. Automated answers may contain errors; you are responsible for reviewing the information it captures and the decisions you make on it.

S1.6.7 Disconnection. When a connection or number ends, the disconnection and deprovisioning fees in Schedule 2 apply, in addition to any charges under clause 15. Supplied routers and modems must be returned under clause 17.3 unless they were sold to you.

S1.7 Be AI (AI consulting, implementation and managed AI)

S1.7.1 AI systems generate output that may be inaccurate, incomplete, biased or out of date. You are responsible for reviewing AI output before relying on it, and for decisions you make using it.

S1.7.2 You are responsible for deciding what data is supplied to AI services, and for having the right and consent to use it in that way. Where an AI service is supplied by a third party (for example Microsoft, OpenAI, Anthropic or Google), its terms and data-handling commitments apply.

S1.7.3 Readiness assessments, strategies and architectures are advice based on the information available at the time. Implementation outcomes depend on your data, systems and adoption.

S1.8 Be Watch (CCTV and AI video, access control, monitoring, automation and workforce management)

S1.8.1 You are responsible for using surveillance, access-control and workforce systems lawfully, including complying with the Privacy Act 2020 and the Privacy Commissioner’s guidance on CCTV, displaying appropriate signage, telling staff and visitors how their information is collected and used, and consulting your staff where the law requires.

S1.8.2 Monitoring and alarm-response Services operate to the response procedures and timeframes in the Order. Where a physical response is involved, it is provided by licensed third-party responders. These Services reduce risk but do not prevent crime or loss, and we are not an insurer of your premises or property.

S1.8.3 You must keep site contact lists, passcodes and response instructions current. We are not liable for a failed or delayed response caused by inaccurate information, unavailable contacts, or a failure of power, network or communications we do not control.

S1.8.4 Installation may require building consents, landlord approval or electrical certification, which you are responsible for obtaining unless the Order says otherwise.

S1.9 Be Screen (digital signage, video walls, LED, menu boards, kiosks, wayfinding and content)

S1.9.1 You are responsible for the content displayed on your screens, including holding the licences needed for music, video, images and fonts played in public (such as a OneMusic licence), and for compliance with advertising, food-labelling and accessibility requirements that apply to your content.

S1.9.2 Installations may need structural assessment, building consent, electrical work or landlord approval. Unless the Order says otherwise, you are responsible for obtaining them and for providing suitable power, data and mounting surfaces.

S1.9.3 Screens and players supplied as part of a managed signage Service remain ours under clause 17.3 unless they were sold to you.

S1.10 Be Market (hardware, software, licensing, configuration, asset management and disposal)

S1.10.1 Orders and prices. Prices are based on our supplier’s price and the exchange rate at the time of quoting, and may change before an order is placed with the supplier. Once we place an order with a supplier on your instruction, it cannot be cancelled without your paying any cancellation costs. Special-order and custom-configured items cannot be cancelled or returned.

S1.10.2 Delivery. Delivery dates are estimates. We are not liable for supplier or freight delays. You must inspect goods on delivery and tell us of any damage, shortage or dead-on-arrival fault within 3 Business Days.

S1.10.3 Returns. Change-of-mind returns are at our discretion, must be in original unopened packaging within 14 days of delivery, and may carry a restocking fee of up to 20% of the price. Software, licences, consumables and opened items cannot be returned except where faulty.

S1.10.4 Warranty. Goods carry the manufacturer’s warranty. Warranty claims are handled under the manufacturer’s process; we will help you lodge them. Freight and labour for warranty claims are chargeable unless the manufacturer covers them.

S1.10.5 Configuration and asset management. Where we configure, enrol or record devices, you remain responsible for the devices themselves. Our asset register reflects the information available to us.

S1.10.6 Disposal. Where we provide IT asset disposal, we will securely erase or destroy data-bearing media and provide a certificate of destruction. You must remove any device from your management and accounts before handover.

S1.10.7 Title, risk and our security interest in goods are governed by clause 17.

S2.1 Standard fees and charges

S2.1.1 These fees apply where relevant, in addition to the Charges in your Order. They exclude GST and may be updated under clause 9.

• Interest on overdue amounts: 1.5% per month (calculated daily and compounded monthly).
• Dishonoured or declined payment: $25 per dishonoured payment, plus any bank fees charged to us.
• Overdue account administration: $45 per overdue notice sent after the first reminder.
• Reconnection after suspension for non-payment or misuse: $75 per service.
• Disconnection and deprovisioning: $95 per connection or number, plus any network operator or carrier charge.
• Early termination charge (where no amount is stated in the Order): as set out in clause 15.2.
• Unreturned rented or loaned Equipment: its replacement value as stated in the Order, or if none is stated, the current price of equivalent new Equipment.
• Recovery Costs: as incurred, under clause 12.
• Restocking (change-of-mind returns): up to 20% of the price.
• Out-of-scope work, data-exit assistance and recovery staff time: our published hourly rates for the relevant service.
• Card payments: a surcharge equal to our card processing cost may apply.

S3.1 Guarantee and indemnity

S3.1.1 This Schedule applies where the Order requires a guarantee. Each person who signs as guarantor (a "Guarantor") gives this guarantee and indemnity in consideration of us agreeing to supply, or continuing to supply, the customer named in the Order (the "Customer").

S3.1.2 Guarantee. The Guarantor unconditionally and irrevocably guarantees to us the due and punctual payment of all amounts the Customer owes or will owe us under the Agreement, including Charges, interest, early termination charges and Recovery Costs, and the performance of the Customer’s obligations.

S3.1.3 Indemnity. As a separate and additional obligation, the Guarantor indemnifies us against all loss, costs (including legal costs on a solicitor and own client basis) and expenses we suffer because the Customer fails to pay or perform, or because any amount the Customer owes is not recoverable from it for any reason, including its liquidation or the invalidity of the Agreement.

S3.1.4 Continuing. This is a continuing guarantee and indemnity. It covers all amounts owing now and in the future, and remains in force until all of them have been paid in full, even if the Customer’s account is at times in credit.

S3.1.5 Not affected. The Guarantor’s liability is not reduced or released by: any time, indulgence or concession we give the Customer; any variation of the Agreement, new Order or increase in credit; the Customer suffering an Insolvency Event; the release of any other guarantor; any change in the Customer’s ownership or constitution; or any payment that is later avoided or required to be repaid.

S3.1.6 Direct recourse. We may enforce this guarantee and indemnity against the Guarantor without first demanding payment from, or taking action against, the Customer or any other person.

S3.1.7 Joint and several. If there is more than one Guarantor, their obligations are joint and several.

S3.1.8 Costs and interest. The Guarantor must pay our Recovery Costs of enforcing this Schedule, and interest at the rate in clause 10 on any amount demanded and not paid.

S3.1.9 Information. The Guarantor authorises us to obtain credit information about them from credit reporting agencies, to give their information to credit reporters and debt collectors if they default, and to give the Customer information about this guarantee.

S3.1.10 Acknowledgement. The Guarantor confirms that they have read this Agreement and this Schedule, understand that they may become personally liable for the Customer’s debts and that their own assets may be at risk, and have had the opportunity to obtain independent legal advice before signing. This guarantee is signed electronically in accordance with Schedule 4 and satisfies section 27 of the Property Law Act 2007.

S4.1 Electronic signing and evidence

S4.1.1 This Agreement is signed electronically through Be Digital’s signing service. The signing process is:

• we send the person nominated to sign for the Customer a unique, private signing link;
• before signing, that person verifies control of their email address by entering a one-time code we send to it;
• they review the Order and the full Agreement, confirm their authority and the declarations shown, type their full name and position, and draw or adopt their signature;
• where a guarantee is required, each Guarantor completes their own declarations and signature;
• when they press "Sign agreement", our system records the signed copy of the Agreement, a SHA-256 fingerprint of the exact text signed, the signature, the date and time (in UTC and New Zealand time), the internet address and device information of the signer, and the time the email verification was completed; and
• a complete copy of the signed Agreement, including the signing certificate, is emailed to the signer and to Be Digital.

S4.1.2 Each of us agrees that this process meets the requirements for an electronic signature in Part 4 of the Contract and Commercial Law Act 2017 — it identifies each signer and their approval of this Agreement, and is as reliable as is appropriate for its purpose — and that a signed copy produced from our system, together with its signing certificate and fingerprint, is admissible in evidence and is an accurate record of this Agreement and its acceptance in the absence of clear evidence to the contrary.

S4.1.3 If the fingerprint recorded on the signing certificate matches the fingerprint calculated from a copy of the Agreement, that copy has not been altered since it was signed.

S5.1 Customers who are consumers

S5.1.1 This Schedule applies only where you acquire a product or service from us as a consumer, as defined in the Consumer Guarantees Act 1993 — for example home broadband from Be Connect, or goods bought for personal use from the Be Market or Be Online online stores. It overrides anything else in this Agreement that is inconsistent with it.

S5.1.2 Your guarantees. You have the benefit of the guarantees in the Consumer Guarantees Act 1993, including that goods are of acceptable quality and fit for purpose, and that services are carried out with reasonable care and skill, within a reasonable time and at a reasonable price where none was agreed. If a product or service fails a guarantee, you have the remedies that Act gives you. Clauses 22.1, 22.2 and 23.2 do not apply to you, and nothing in clauses 24 or 25 limits a right you have under that Act or the Fair Trading Act 1986.

S5.1.3 Fair terms. We do not intend any term of this Agreement to be an unfair contract term under the Fair Trading Act 1986. A term that would be unfair as it applies to you does not apply to you.

S5.1.4 Uninvited direct sales. If you entered into this Agreement because we contacted you, uninvited, at your home or workplace or by phone, you may cancel it within 5 working days after the day you received a copy of it, as set out in the Fair Trading Act 1986, by telling us in any way.

S5.1.5 Minimum terms and early termination. A Minimum Term applies to you only if it is stated in your Order. If you end a Service during its Minimum Term, the most you will pay under clause 15 is the early termination charge stated in your Order, any unrecovered cost of Equipment or set-up we gave you at a discount, and return or replacement of rented Equipment — and never more than our reasonable losses from the early termination. The default charge in clause 15.2(c) does not apply to you.

S5.1.6 Price changes. If we increase the price of a Service you have with a Minimum Term, for any reason, you may end that Service without an early termination charge by telling us before the increase takes effect.

S5.1.7 Late payment. We do not charge you interest on overdue amounts. The fixed fees in Schedule 2 that apply to you are a reasonable estimate of our costs. If we need to recover a debt from you, you must pay the reasonable costs of recovery we actually incur, including reasonable debt collection and legal costs; clause 12.1 applies to you on that basis.

S5.1.8 Guarantees and security. Schedule 3 does not apply to you. The waivers of Personal Property Securities Act 1999 rights in clause 17.5 do not apply to goods you use mainly for personal, domestic or household purposes.

S5.1.9 Online purchases and returns. Goods bought online can be returned for a change of mind only where the store’s returns policy says so. Goods that are faulty or not as described are dealt with under the Consumer Guarantees Act 1993, with no restocking fee.

S5.1.10 Australia. If you are a consumer in Australia (for example a Bea customer), you also have rights under the Australian Consumer Law that cannot be excluded, and nothing in this Agreement limits them.

S5.1.11 Complaints. If you have a complaint, contact us first and we will try to resolve it quickly. If a complaint about a telecommunications service is not resolved, you may be able to refer it, free of charge, to the Telecommunications Dispute Resolution scheme. You can also take a claim to the Disputes Tribunal. Clause 27.2 does not stop you doing either.