These terms were last updated: December 2016

1 INTRODUCTION

When these terms apply

If you are a business customer of ours these terms apply whenever we do anything for you.

Additional terms may apply to some of our Services or in relation to a special offer. Any additional terms will be posted on our website. These additional terms are binding on you and we will tell you when they apply. Where there is a conflict between additional terms and these terms, the additional terms take priority, except where the conflict is in relation to clause 8 of these terms, in which case clause 8 will take priority.

Where any third party services are provided to you as part of the Services you agree that any third party terms for those Services are binding on you.

These terms also replace any agreement that we may have previously had with you for Services or Equipment.

The definitions we use

To make these terms easier to read we have used these definitions:

  • Equipment ” means any equipment or hardware that we provide to you (for example, any phones, adapters or antenna);
     
  • Providers ” means the network operators and third party suppliers that we use and their related companies, their Personnel and those of their related companies, and everyone else that they or their related companies are responsible for;
  • “you ” means you, our business customer;
  • “Personnel ” means officers, contractors, employees and agents;
  • “Services ” means any of the Internet, phone and other services we provide to you; and
  • ldquo;us ”, “we ” or “our ” means nzwireless Limited and every related company of nzwireless Limited.

These terms and additional terms may change

We may change these terms or any additional terms from time to time. Any updated version of the relevant terms will be posted on our website. We will try to give you at least 5 days prior notice before any changes take effect, and we may do this by emailing you at the last email address you have given us in writing and/or by displaying a notice on our website. Any use of the Services by you after this notice confirms your acceptance of the updated version of the relevant terms.

The date at the top of these terms tells you when the latest version of the terms became effective. It’s your responsibility to ensure that you are aware of the latest version of the terms, additional terms and any notices on our website.

If you can demonstrate to us that a change we have made to the terms or additional terms in this way has a significant detrimental impact on you then you may end the Services without paying any early termination fee by telling us in writing within 30 days of when the terms were updated.

Any other changes to these terms must be in writing and signed by one of our authorised representatives

2 IMPORTANT: SOME LIMITATIONS YOU NEED TO KNOW ABOUT

You may not be able to make emergency calls

We cannot promise that you will be able to make 111 emergency calls through any Services we offer. If there is a power cut or failure or the broadband connection fails you may be prevented from making 111 emergency calls or using any communication services we offer. Also, if the Services are not operating properly, or they have ended or been suspended or restricted under these terms, you may not be able to make 111 emergency calls or use any communication services.

To help protect against short term power failures we strongly recommend that you install an uninterrupted power supply (UPS). You will need to look after the UPS to make sure that it works. If it fails (even if there hasn’t been a power cut) this may itself cause a power failure that prevents you from making 111 emergency calls and using any of the voice services.

Emergency services may not be able to locate you

If you are able to make 111 emergency calls the location information that the emergency services will have access to will be limited to the location details that you provided us on our order form. This information may not be enough to identify your precise location (for example, if you are in a multi-storied building). So, you should be ready to give your specific location details to the emergency services if you are able to contact them.

Moving address

You must promptly tell us when you move addresses. We may not be able to provide the Services to your new address.

Other limitations

The Services are not compatible with all types of equipment, software or services. For example, the Services may not be compatible with security systems and their alarm monitoring functions.

Further limitations are set out in the rest of these terms.

3 SERVICES

When the Services start

The Services begin on the date we first supply them to you or that any relevant Equipment has been installed at your premises, whichever occurs first. The charges for the Services will also normally start on that date.

Providing the Services

We will try and provide the Services by any date we have agreed with you. However, any start date we have agreed is an estimate only and we are not liable if we don’t meet that date.

We may take instructions from any person who we think with good reason is acting with your permission.

Our Personnel or Providers may need access to your premises from time to time in relation to the Services, Equipment or our network. For example, to install, inspect, maintain, replace or recover Equipment. We will give you advance notice of such access where it’s realistic for us to do so. You must provide reasonable cooperation and assistance to enable such access so long as appropriate identification is shown to you.

Both you and us must meet each other’s reasonable requirements in relation to access to your premises. So you know, our reasonable requirements include requirements to help protect the safety of our people on your premises.

You must obtain, and assist us to obtain, all the consents, licences and permissions that we consider are necessary or prudent for us to provide the Services to you (for example, consents to cross land, access premises and make alterations to install equipment). However, you don’t need to do this for the consents, licences and permissions that we need to obtain generally to operate our network.

The nature of the Services

We aim to provide a quality Service to you. However, the nature of the Services means we cannot and do not promise that the Services will be secure, free of defects or viruses or always available (including at a certain bandwidth or location). This is in part because of the reliance of the Services on systems and networks that are not owned or controlled by us.

However, where the Services are unavailable for any reason we will try to restore the Services as soon as we reasonably can.

We also reserve the right to limit the speed of uploads and downloads of any kind and in all protocols, including file downloads (for example, FTP's) and P2P programs.

Sometimes the Services may change

We may from time to time change the Services. Where it’s realistic to do so we will try to notify you before we make any change to a Service that we consider will have a significant detrimental impact on your use of the Services. If the change does have a significant detrimental impact, and you are not in breach of these terms, you may end the Services that have been changed without paying any early termination fee by telling us in writing within 30 days of the change.

The Services are for you only

The Services are intended for your own use only and you must never assign, transfer, re-sell, sub-licence or otherwise provide the Services to anyone else, except where we expressly agree otherwise in writing.

You are responsible for anyone who uses the Services or Equipment

You are responsible for anyone who accesses or uses the Services or Equipment and for any use, activity or failure to comply with these terms that may result.

Numbers, codes and directories

We or our Providers own any numbers or codes that are provided to you in relation to the Services. For example, telephone and facsimile numbers. We may change these numbers or codes from time to time without being liable to you or anyone else for any resulting costs. We will try to give you as much prior notice as we reasonably can before changing any numbers or codes.

Collection of information

If you use the Services, you agree to our collection, storage and use of your information in accordance with our Privacy Policy.

The information we collect about you will be used by us and our Personnel and Providers to provide, maintain and improve the Services. This may include, but is not limited to, disclosure to:

  • external organisations which assist in billing, installation, repair and maintenance
  • credit reference agencies
  • emergency services for response providing services such to any life or health threat
  • law enforcement agencies if we believe in good faith that there is a threat to public heath and safety
  • debt collection agencies

4 EQUIPMENT AND SOFTWARE

Required equipment and software

Your use of the Services may be dependent on your use of certain equipment or software. Unless we have agreed to provide that equipment or software to you it is your responsibility to supply, operate, maintain and repair that equipment or software.

Provision of Equipment

We may from time to time provide you with Equipment in relation to the Services. The Equipment remains our property unless we have agreed that you will purchase it from us, in which case title in the Equipment passes to you when you have paid for it. Risk in all Equipment passes to you when it is delivered to you and from then on you must take good care of it and pay us on demand the full repair or replacement costs for any loss or theft of the Equipment or any damage to it. You must also immediately tell us if any Equipment is lost, stolen or damaged.

Shipping Policy

We will charge you for the shipping of Equipment and software to cover reasonable costs incurred by us in relation to postage and packaging. Once your order has been confirmed and payment has been received, it will generally take 3-5 working days for the Equipment and/or software to be delivered. However, this will be subject to stock availability. If we anticipate that any Equipment or software will not be received by you within this time, we will endeavour to advise you of the delay and the likely date of delivery. If the Equipment or software has not arrived within this timeframe, and we have not advised you of a delay, please contact us at: support@nzwireless.co.nz.

How you may use our Equipment

You may use the Equipment only to access and use our Services, and then only in accordance with the manufacturer’s specifications and our written directions. You must never modify, move or otherwise interfere with any Equipment except where we have specifically told you that you can.

Software

Any software that we supply to you in connection with the Services is subject to the terms and conditions that accompany it (for example, any end user agreement you are presented with as part of the installation process). You agree to comply with those terms and conditions.

If no terms and conditions accompany any software we supply:

  • we grant you a non-exclusive, non-transferable and revocable licence to use the software solely to enable your use of the Services and provided you comply with your responsibilities in the next two bullet points.
  • you must not copy, modify, adapt, translate, decompile, reverse engineer, dissemble, distribute, sub-licence or otherwise transfer that software.
  • you must make sure you comply with all of our directions in relation to the software.
  • From time to time we may provide you with upgrades or new versions of software. You must install these as soon as you reasonably can and at least within 6 months of us providing them to you.

Faulty Equipment and software

If any Equipment or software we supply to you is faulty and prevents your use of the Services we will then repair or replace the faulty items or provide you with a refund for the charges you paid to purchase the faulty item or, if you didn’t purchase the item, the charges you paid for Services you did not receive as a result of the fault. This is our only responsibility, and your only remedy, for faulty Equipment or software and is only available if you tell us about the fault:

  • in the Equipment, within 12 months of us supplying it to you; or
  • in the software, within 3 months of us supplying it to you.

This remedy will also not apply if the fault was caused by you (for example, your failure to comply with these terms), any equipment or software not provided by us, or by any other cause beyond our reasonable control. We may also require you to return the faulty Equipment or software to us before we provide the remedy.

It is at our sole discretion whether to repair, replace or provide a refund. If we decide to replace any Equipment or software we can do so with something that is the same or that is different but still provides the necessary functionality. If we test any equipment or software that you claim is faulty and the testing reveals that it is not we may charge you for the costs of testing and any shipping costs incurred by us.

Return of Equipment and other things when the Services end

When Services end for any reason then you must, at your own cost:

  • immediately stop using anything we have supplied to you in relation to those Services (for example, Equipment and software); and
  • when asked by us, let us recover any of these things from you or promptly return them to us in accordance with our instructions.

However, you don’t have to stop using or return any Equipment you have purchased from us. If you do not return or let us recover any of these things within 30 days of when we ask you must pay us on demand the full costs of replacing these things.

5 YOUR GENERAL RESPONSIBILITIES

It is your responsibility to:

  • make sure you use the Services only for lawful purposes, in compliance with all applicable laws and regulations including copyright, trademark, obscenity and defamation laws, and then only for the purposes for which they were provided;
  • make sure you do not use the Services for storing, distributing or transmitting any unlawful, malicious, obscene or offensive material or information;
  • make sure you do not use the Services for attempting to compromise the security of any networked account or site or making direct threats of physical harm;
  • provide reasonable cooperation and assistance to us and our Personnel in relation to any work we undertake on the Services, Equipment or our network;
  • comply with the latest version of the policies found on our website (including the Privacy Policy);
  • comply with all our directions and restrictions regarding the use of the Services;
  • make sure that all information you give to us and our Personnel and Providers is correct and complete and, when it changes, we are given updated information as soon as reasonably possible;
  • make sure that nothing you do or control interferes with or damages our network, equipment or software or those of any other person;
  • never interfere with the use of the Services by our other customers or annoy them or anyone else through your use of the Services;
  • maintain and repair your own equipment, software and networks and make sure they are secure and function properly (including by carrying out any maintenance and repairs that we reasonably think are necessary within the timeframes we reasonably require);
  • never use the Services in a way that infringes ours or anyone else’s rights (including intellectual property rights);
  • make sure your user ID, codes and passwords are kept confidential and secure and are properly used by authorised people, and immediately tell us whenever you have reason to believe that this has not happened; and
  • make sure the people you are responsible for comply with your obligations and responsibilities under these terms.

6 CHARGES AND PAYMENT

Charges

You must pay all charges for the Services and Equipment, regardless of who uses them.

Our current charges for the Services and Equipment are set out on in the price list that we supply or make available to you from time to time. You can also find out our current charges by calling our help desk on 0800 699 473. Unless we state otherwise, all charges are exclusive of GST. We may also charge you additional amounts for any:

  • installation services;
  • changes to the Services or Equipment that you have requested and that we decide to provide;
  • investigating or addressing problems that are caused by you, those you are responsible for or any equipment or software used by you in relation to the Services (and that has not been provided by us);
  • investigating or addressing problems that you have reported but we later determine to not exist; and 
  • amounts that we have been charged by someone else because you used their services.

We may change the charges from time to time. However, we won’t change any fixed charges during any minimum period for which we have agreed that the charges will not change. Some of the charges are determined by network operators and other third parties that we use (for example, Telecom) and may also change from time to time. It’s your responsibility to keep up to date with what the current charges are before you incur them.

If you exceed your usage threshold we may charge you for the extra usage or upgrade you to a plan that better fits your usage. If your use of the Services is excessive or unusual and does not fit with the usage patterns that we usually expect of our business customers we may also restrict, suspend or end the Services on notice to you.

Payment

We will usually bill you for fixed charges monthly in advance and other charges (including usage-based charges) monthly in arrears. Charges will normally appear on your next bill, but sometimes there may be a delay. You must pay all charges using the payment method that we may approve from time to time.

We will send our bills to you by email. You must pay each bill we send you by the due date specified on the bill. This will be at least 14 business days after the date we send the bill. If you do not pay by that due date we may do one or more of the following:

  • charge you for the costs we or anyone else incurs in collecting any overdue amounts from you (for example, debt collection and full legal fees);
  • charge you interest on the overdue amount at 15% per annum from the due date until the date that you pay us; and
  • restrict, suspend or end the services (although, we generally will not do this until 15 days after the due date on the bill unless in our opinion it’s prudent to do so).

Invoice errors

If you think there is a mistake in one of our bills please tell us about it before the due date for payment. We will then look into it. While we are doing this you don’t have to pay by the due date the part of the bill that you think is in error. This is the only time that you may withhold any of the charges. If there is a mistake we will make the necessary adjustment to your next bill. If we find that there is no mistake we will tell you and you must pay the full amount by the due date or, if that date has passed, within 2 business days.

You must never setoff or deduct any part of any amount that you owe us.

7 RESTRICTING, SUSPENDING AND ENDING THE SERVICES

Our rights to restrict, suspend and end the Services

If you have agreed to take Services for a minimum period we may end those Services at any time after the expiry of that period by telling you at least 10 days beforehand.

We may immediately restrict, suspend or end all or any part of the Services at any time if we consider (in our sole discretion) that you have failed to comply with these terms or if for any reason we consider (in our sole discretion) that it is reasonable or necessary to do so.

Some examples where it would be reasonable or necessary for us to restrict or suspend all or any part of the Services are as follows:

  • to protect, maintain, repair or restore any part of our network or Services;
  • we reasonably suspect that you or anyone else is acting illegally or inappropriately in connection with the Services;
  • to address or avoid an actual or potential detrimental impact on our network or operations; or
  • there is an emergency.

Some examples where it would be reasonable or necessary for us to restrict, suspend or end all or any part of the Services are as follows:

  • where required for any reason by a Provider;
  • because a Provider stops providing us with equipment, software or services used to provide the Services and there are no alternative ways to continue providing the Services on terms acceptable to us; or
  • where we have withdrawn the Service from general availability or it is to be replaced with a new Service.

We can exercise any rights to restrict or suspend the Service more than once for the same or different reasons and the exercise of those rights will never prevent us from exercising our rights to end a Service.

Payment of charges while Services are suspended or restricted

You must continue to pay the charges during any suspension or restriction. However, we may at our discretion choose to credit you with a portion of the charges for the Services that were suspended or restricted. Also, if the suspension or restriction lasts for more than 1 day, was not because of your failure to comply with these terms and you can reasonably demonstrate to us that it has a significant detrimental impact on you, you may end the affected Services by telling us in writing and without paying any early termination fee.

If the Services were suspended because of your failure to comply with these terms then you may need to pay a reconnection charge if the Services are to be restored.

We will exercise any right to restrict, suspend or end a Service by giving notice to you, except where it is not realistic to do so.

Planned outages

Sometimes we will plan for Services to be suspended to carry out repairs, maintenance or improvements. Where it is realistic to do so, we will try to schedule such disruptions to times that are outside normal business hours (but may not always be able to do so).

Your rights to end the Services

You may immediately end the Services at any time for any reason by telling us in writing at least 30 days beforehand. However, if you have agreed to take the Services for a minimum period, you will be required to pay an early termination fee if the Services end before the expiry of that period.

If you have agreed to a minimum period, and this period has expired, then the Services will continue until a new minimum period is agreed, or until you provide us with 30 days notice.

If we are in material breach of these terms you will not have to pay any early termination fee if you have told us in writing of our material breach and, if the breach could be remedied by us, we have not done so within 10 business days of you telling us.

The consequences of ending the Services

When Services end for any reason then all of the following apply:

  • if the Services end before we have started providing them to you, you must pay us any applicable installation charges and any reasonable costs that we have incurred in getting ready to provide the Service to you;
  • you must pay all charges incurred before the Service ended and all other outstanding amounts that are owed to us;
  • any data that we hosted for you as part of the Services will be made available for download by you for at least 30 days after the Services end (after 30 days we may then delete that data);
  • neither you or us will be relieved from any right, liability, or claim that has accrued before the date the Services ended; and
  • the provisions of these terms which are intended to continue or come into effect after the Services end shall not be affected (these provisions include sections 7, 8 and 9 of these terms).

Early termination fee

If you have agreed to take Services for a minimum period and the Services end for any reason prior to the expiry of that period then, except where these terms provide that no early termination fee is payable, you must pay an early termination fee equal to the balance of all fixed charges due under these terms had the Services remained in place for the entire minimum period.

8 LIABILITY

Things we and our Personnel are not liable for

We will not be liable to you or anyone else for any:

  • loss or damage to information or data from any cause;
  • defects in, or loss or damage caused by, third party services, equipment, software and/or materials;
  • defects in, or loss or damage to, any software or system that is caused by the software we supply to you;
  • breach of security or privacy;
  • loss of business, revenue, profit, goodwill, opportunity or anticipated saving;
  • lapse in, or cancellation of, the registration of your domain name; or
  • incidental, indirect, special or consequential loss or damage.

Our maximum liability to you

Subject to the exclusions of liability in these terms (including in this section 8), the total aggregate liability of us and our Personnel (together) to you arising under, out of or in connection with these terms, and for all things we or our Personnel have done or not done, will under no circumstances exceed $5,000 for any event or series of related events and a total of $10,000 for all events (connected or unconnected) in any 12 month period.

Our Personnel and Providers are not liable to you at all

Our Personnel and Providers have, to the fullest extent permitted by law, no liability to you or anyone else arising from or in connection with the Services or anything we do or do not do under these terms. This exclusion is for the benefit of, and enforceable by, our Personnel and Providers.

These limitations and exclusions always apply

The total aggregate liability set out above, and any exclusions of liability in these terms, shall apply however any liability arises, whether in contract, in tort (including negligence) or otherwise.

Circumstances where we are not liable

We are not liable for any failure to do what we have agreed where such failure has been caused by:

  • any circumstances beyond our reasonable control or the reasonable control of Personnel or Providers (for example, power outages, severe weather or the actions of the government or any agencies or regulatory authorities);
  • any failure by you to properly use the Services or Equipment or comply with what you have agreed to do; or
  • any refusal, delay or failure by third parties (including our Providers).

Consumer Guarantees Act 1993

You agree that you are acquiring the Services and Equipment for the purposes of a business and so the provisions of the Consumers Guarantees Act 1993 do not apply to those Services or Equipment.

No warranties

Unless expressly stated otherwise in these terms, all warranties and representations in relation to the Services or Equipment, whether express or implied and however arising, are excluded to the fullest extent permitted by law.

Your indemnity

You fully indemnify us from and against (and must pay us at our request for) any losses, expenses, damages, liabilities and costs that we suffer or incur that arise out of, or are related to, any use of the Services, anything you do or do not do (including any breach by you of these terms) or any expenses we incur in exercising whatever rights we may have against you.

9 GENERAL PROVISIONS

Monitoring

We are entitled, but not obliged, to monitor your use of the Services to check your compliance with these terms.

Intellectual Property

We, our Personnel or our Providers own and shall retain all intellectual property rights in the Services, equipment, software, documentation and anything else that we supply or made available to you. Any intellectual property rights in any changes or improvements to any of these things that that are created by or for you or us will be owned by us as soon as those rights are created.

You grant to us the right to use, copy and modify any content that you supply to us only to the extent necessary to provide the Services to you.

Confidentiality

You must keep confidential and secure all information that you receive from us that we tell you is confidential (for example, by a confidentiality notice in a document), that is by its nature confidential or is otherwise of a commercially sensitive nature. You may only disclose this information if you are required by law to do so.

If there is any doubt as to whether information is confidential you must ask us for confirmation. You must keep that information confidential and secure unless we tell you in writing that it is not confidential.

When subcontracting and assignment is permitted

You may subcontract, transfer or assign any of your rights or obligations under these terms with our prior written consent. We may subcontract, transfer or assign all or any part of our rights or obligations under these terms.

How notices must be given

Anything we need to notify or tell you in writing under these terms will be sent to you by email, hand, fax or direct mail to the last address or number you have given us in writing. So please make sure you tell us in writing if your contact details change.

Anything you need to notify or tell us in writing under these terms must be sent by email, hand, fax or direct mail to the address or number detailed on your last bill or any other address or number that we give to you for that purpose.

Any communication in writing under this Agreement can be assumed to be received three business days after it was sent unless the sender is notified that it was not received. For example, if the sender receives notice of failure or delay in the delivery of an email or if the confirmation slip from a fax machine indicates the fax was not properly sent. Where you or us need to notify or tell the other in writing that Services are to end that must be done by email.

Some rules for interpreting these terms

In these terms:

  • words in the singular number include the plural and vice versa
  • where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
  • unless otherwise stated, all references to dollars, value and price are references to the New Zealand currency and exclude Goods and Services Tax;
  • a reference to a party includes its successors and permitted assigns;
  • any examples in this Agreement, and references to “including” and similar words, are illustrative only and do not imply any limitations;
  • any references to a person includes a company, trust, university, body of persons (corporate or un-incorporate), government department, agency or body, ministry, crown entity or municipal authority; and
  • clause and other headings are for ease of reading only and do not affect the interpretation of these terms.

Our relationship to you

Nothing expressed or implied in these terms will make you a partner or agent of ours or mean that you are in a joint venture with us.

These terms are our entire agreement

These terms constitute the entire agreement and understanding between you and us in respect to its subject matter and replaces all previous agreements, understandings and representations relating to that subject matter and any additional or different terms that you may provide to us (including on any purchase orders).

Waiver

Any waiver of any of these terms must be in writing and signed by one of our senior managers. Any delay or failure by us to exercise any right does not prevent us from exercising that right, or any other right, on that or any other occasion.

These terms benefit every nzwireless company

These terms are for the benefit of, and enforceable by, each related company of nzwireless Limited. Despite this, these terms may be varied by nzwireless Limited without the consent or agreement of any its related companies.

The rights and remedies in these terms are not exclusive

Any of our rights and remedies under these terms are cumulative and do not exclude or prejudice the exercise of any other rights or remedies under these terms or existing at law.

No benefits, rights or privileges granted by Providers

Providers do not provide, grant or confer any benefit, right or privilege on you or any one else who uses the Services.

Invalidity

If any provision of these terms is held to be illegal, invalid or unenforceable it shall be deemed deleted from these terms without affecting the legality, validity or enforceability of the remaining provisions.

New Zealand law applies

These terms are governed by the laws of New Zealand and you and us both submit to the exclusive jurisdiction of the New Zealand courts.