These General Terms together with the following documents record our relationship with you regarding our supply of Broadband, VoIP Phone and/or Related Services (“the/this Agreement”):
- your Application Form;
- the applicable Special Terms (which govern your supply Plan);
- any applicable Promotional Terms (which govern promotions we offer from time to time together with our supply Plans); and
- any applicable Additional Terms relevant to the Services we provide you (e.g. the LFC End User Terms outlined in clause 7 below).
When you sign up for and use our Broadband, VoIP Phone and/or Related Services, you agree to these General Terms, along with any Special Terms, Promotional Terms and Additional Terms that apply to the Service(s) you’ve chosen.
If you have any questions regarding your Account, your supply Plan, the Services or these General Terms, please call us on 0800 668 236, email us at firstname.lastname@example.org or visit our Website.
- Capitalised terms used in these General Terms have the meaning given to them in the Definitions section at clause 93 below.
- These General Terms do not apply to the supply of mobile services or any related mobile services (which have their own general terms available on our Website).
- We may change this Agreement from time to time, and this may include changes to the price of the Services and/or the way you are able to use the Services. However, we will only make these changes as set out in clause 73 of these General Terms and will at all times comply with relevant laws and regulations in making any changes.
Becoming our customer
- Effective date of this Agreement: This Agreement will take effect and you will become our Broadband and/or VoIP Phone customer when we have both agreed terms, in one of the following ways:
- if you complete an Application Form in person, on the date we have both signed the Application Form; or
- if you complete an Application Form Online, on the date we confirm our acceptance to you in writing or by some other means; or
- if you request to become our customer by telephone, on the date we confirm our acceptance to you in writing (including via an Application Form) or by some other means.
- Excluded customers: These terms do not apply to any residential premises described in section 5(c) to (k) of the Residential Tenancies Act 1986 (which refers to places such as jails, hospitals, hostels, hotels, and other places providing temporary accommodation), and may not apply (at our sole discretion) to customers in certain regions, customers who provide port forwarding, port mapping or data hosting services, and customers who fail to meet any of our pre-acceptance checks (discussed further below).
- Changing supplier: If you currently receive a Broadband and/or VoIP Phone service from another service provider, you will need to contact that provider directly to give relevant notice and/or cancel that service. You acknowledge that by changing from your existing provider to us:
- we are your new service provider and will only provide you with Services on terms as agreed with or validly notified to you (and such terms including price, availability, bundled services and discounts, may differ from your previous provider);
- there may be some products/services we cannot provide or support, and if you wish to obtain (or retain) such products/services, you are responsible for contacting the relevant service provider to arrange continued service at your cost; and
- you remain subject to the terms and conditions of use of your existing/previous service provider for products/services provided by that service provider, and you will remain liable for any fees or Charges still owing (or which become owed) to that service provider (including any unbilled Charges, termination and/or disconnection fees charged by that service provider).
- Acceptance subject to credit and other checks:
- We will endeavour to complete our customary pre-acceptance checks, such as consideration of your credit status, your ability to meet our payment and any other criteria (including installation and connection) before accepting you as our customer.
- We are not obliged to provide you with Services unless we accept you as our customer. In some situations however, we may have accepted you as our customer and this Agreement may have taken effect before such checks have been completed, in which case our obligation to supply you with Services remains subject to us, at our sole discretion, being satisfied with the outcome of such checks.
- If, on completion of those checks, we are not so satisfied, we may terminate this Agreement on 7 days’ Notice and, if you are already taking a supply of Services from us, disconnect the supply in accordance with clause 61(a).
- Supply commencement: Services supplied under this Agreement will commence on the earlier of:
- the date on which your Broadband supply is switched from your current service provider; or
- if specified in the Application Form, on the Supply Commencement Date.
If we are not supplying the relevant Services from the effective date of this Agreement, we will use reasonable endeavours to commence supply on the Supply Commencement Date if specified or, if not specified, as soon as practicable.
- Verbal instructions: You agree we can act on any verbal instructions you give us in relation to the Services.
- Local Fibre Company (“LFC”) End User Terms and other Additional Terms: You acknowledge and agree that:
- At any time we supply you with Broadband or VoIP Phone Services, you will be bound by your LFC End User Terms, which relate to the provisions (including installation) and use of that part of the LFC’s network and/or LFC equipment which is located at your Property. Further information relating to LFCs can be found at: www.crowninfrastructure.govt.nz/fibre/about-fibre/
- Your LFC may require you to sign a copy of their End User Terms if/when they visit your Property for installation.
- LFC End User terms can be found at each LFC’s website via the following URLs (which may change from time to time):
- As well as the LFC End User Terms, other Additional Terms may apply to some of our Services. If so, we will let you know what those terms are by sending you a copy and making copies available on our Website.
- General Supply: We will comply with all applicable legal and industry standards and requirements relating to supply of the Services, and will always aim to:
- provide you with reliable, good quality Services;
- provide the Services with care and skill in accordance with good industry practice in New Zealand;
- be available to fix faults or disruptions as soon as reasonably practicable; and
- take reasonable security precautions to safeguard our Network (but make no representations or warranties regarding the security or content of information passing over the Network). However, due to the nature of the telecommunications industry and our reliance on Service Partners, other third parties, and third-party Networks, we cannot guarantee that:
- Services will be free from interruptions or faults, be available at all times, or able to be utilised for any particular purpose.
- Broadband connections will always meet the stated speeds.
- Services will be available in all areas or to all customers.
- Services will be compatible with any of your existing or future services/devices supplied by a third party, such as EFTPOS, satellite or other cable TV, monitored security and medical alarms, life-support or other critical-support devices, and any service/device that requires an analogue phone line.
- Services, including the ability to make 111 calls, will be available during a power or broadband outage or other internet-disabling event (such as impeded wireless range within your Property, Equipment being disconnected from wall sockets etc.). We recommend you maintain or have access to a mobile phone service and keep a charged mobile phone at your Property in case you need access to 111 and other emergency call services in cases of Service disruption.
- Any phone calls or transmissions you make when using the Services will be secure and/or confidential.
- Method of supply: Notwithstanding the above, we are free to choose the method and manner (including the technology) by which we provide the Services and install Equipment.
- Continuous supply: We will endeavour to maintain a continuous supply of Services to you. You may however experience an interruption, suspension or reduction in your Service supply (“Outage”), which may be planned or unplanned by us or our Service Partners. The types of incidents which may affect the continuity of your Service supply are discussed in more detail below. We are not liable to you for these Outages or for any damage to your equipment/devices or other loss you incur as the result of an Outage. If we have, or are likely to have, a receiver, liquidator, administrator, or similar officer appointed over us or any of our assets, we will take all reasonable steps to ensure that you receive continuity of your Service supply.
- Outages: You may experience an Outage in your Service supply:
- due to a Force Majeure event;
- in an emergency;
- if we or our Service Partners reasonably consider that it is necessary to avoid any overload of, damage to, interference with, or to ensure the integrity, efficiency, security, safety or proper maintenance of the Network or any third-party Network; or
- if required by law or permitted by this Agreement.
- Notice of Outages: Outages are “planned” when we have been given no less than 10 working days’ notice of their occurrence by the entity responsible for that Outage, otherwise they are “unplanned”. We will give you at least 4 working days’ Notice before any planned Outages. We may not be able to give you Notice of any unplanned Outages. In any event, we will endeavour to keep you informed and restore your Service supply as soon as reasonably practicable after any Outage.
- Reporting an Outage: We operate a 24-hour Customer Care service which allows you to report any Outage. You can contact Customer Care on 0800 668 236 at any time. Our Customer Care Team will endeavour to resolve the Outage or pass the details of your Outage on to a relevant third party, as soon as reasonably practicable.
- Outage information: Our 24-hour Customer Care Team will be updated regularly with information relating to any Outage. If you require further information about ongoing Outages, you can contact our Customer Care Team at any time.
- Suspension and Restriction of Services: We reserve the right to suspend or restrict the Services, to any individual customer and/or all customers generally, at any time, including:
- if we consider it necessary to protect or maintain the Network or any third-party Network;
- if we reasonably consider you have materially breached this Agreement;
- if you meet or exceed any applicable data caps in your Plan or are in breach of our Fair Use Policy;
- to prioritise or optimise internet traffic; and/or
- for any of the reasons set out in clause 51, 56, and/or 61.
- When to contact us: You must notify us as soon as possible if and when:
- you believe that you, or someone living with you, is or becomes a medically dependent or vulnerable consumer. We will work through our verification process with you (the process includes seeking information from a healthcare provider to ensure that your details are kept up to date) and may ask you to re-verify that you or the person living with you, qualifies as a medically dependent consumer either once annually, and/or where you have not paid your invoices in accordance with this Agreement;
- you intend to vacate any Property where you take Services from us;
- you expect that your Broadband and/or VoIP Phone usage and/or requirements are likely to change significantly;
- if there is any unexplained usage or Charges on your account (in which case we will investigate and if we reasonably consider the usage and/or Charges have been incurred as a result of fraud or by someone outside of your reasonable control, we will propose a resolution which may include refunding or crediting your account);
- you become aware or have reason to suspect (or should reasonably be expected to have been aware or suspect) that we have undercharged you;
- you become aware of any circumstances that may prevent or hinder you from meeting any of your responsibilities under this Agreement; and/or
- you become aware, or have reason to suspect, that any Equipment at the Property has been tampered or interfered with, damaged, or may otherwise be inaccurate.
- Customer commitments: In exchange for us providing the Services, you agree to:
- Follow all reasonable instructions issued by us or our Service Partners regarding your use of the Services.
- Make sure all information you provide to us or our Service Partners is correct and complete and notify us (and/or the relevant Service Partner) as soon as possible if that information changes (including contact details, Property and connection information). You agree it is your responsibility to provide us with information about your circumstances (including whether you, or someone living with you, is or becomes a medically dependent or vulnerable consumer and to keep us up to date whenever your circumstances change), that may be relevant to any decision we make in relation to disconnecting your Service supply under the terms of this Agreement.
- Use the Services:
- for the purpose(s) for which they are provided;
- for lawful purposes, and comply with all applicable laws, regulations, standards and codes when using the Services (including, but not limited to, the Privacy Act 2020, Copyright Act 1994, Unsolicited Electronic Messages Act 2007, Defamation Act 1992 and the Crimes Act 1961);
- in accordance with our Fair Use Policy at all times;
- Not use the Services in any way that:
- is illegal, malicious, obscene, or annoying including (but not limited to): sending unsolicited electronic mail to any person for advertising/promotional purposes (i.e. spamming); illegal downloading; knowingly transmitting any virus or other disabling feature; reselling, rebilling or otherwise providing any of our Services to anyone else; or in a way that infringes anyone else’s intellectual property rights;
- implies an endorsement, sponsorship or association by us with any product, service, person or entity;
- could interfere with the Network or any third-party Network;
- could interfere with anyone else’s use of our Services or privacy rights, or to gain unauthorised access to anyone else’s (including our and our Service Partners’) computer, communication, or data storage systems; and/or
- in our reasonable opinion is a use for which the Services were not intended (including but not limited to acting as an ISP, providing data storage services, providing aggregated content or upload services for commercial benefit, or otherwise use the Services for a commercial purpose); and
- Take responsibility for anyone else who uses the Services we provide to you (with or without your consent) and ensure such persons comply with the terms of your Agreement with us.
- Take reasonable precautions and have appropriate security measures in place to prevent:
- unauthorised use of your Services, e.g. by using (and changing on a regular basis and if instructed to by us) appropriate passwords, PIN numbers, toll barring options etc.;
- our Services being used for fraudulent or illegal purposes; and/or
- the spread of viruses, or contamination by virus, of any software or hardware operated by any other person.
- Be bound by the end-user terms of our Service Partners (which are available on request), including the LFC End User Terms outlined in clause 7 above, and agree that our Service Partners may enforce those terms directly against you where they are breached by you.
- Allow us, our Service Partners, and our respective employees, contractors and technicians access to your property in accordance with clauses 22-25.
- Be responsible for protecting any Equipment provided by us or our Service Partners, and for your own equipment and devices, at your Property. You agree not to tamper or interfere with that Equipment and that only we or our Service Partners may carry out repairs on any Equipment. You also agree to return any Equipment to us immediately on request, or upon termination of this Agreement, in a good working condition. We may charge you reasonable fees where Equipment is not returned or is returned damaged.
- Otherwise comply with your obligations set out in these General Terms, your Application Form, and any applicable Special Terms and/or Additional Terms.
- Emergencies: If there is a power or broadband outage or other internet-disabling event (such as impeded wireless range within your Property, Equipment being disconnected from wall sockets etc.) you will be unable to make calls over our VoIP Phone service, including emergency 111 calls. We recommend you maintain or have access to a mobile phone service and keep a charged mobile phone at your Property - in case you need access to 111 and other emergency call services in cases of Service disruption. See clause 34 below for more information on vulnerable VoIP Phone customers.
- Third party services and devices: You are responsible for making sure any of your existing or future services/devices supplied by a third party, such as EFTPOS, monitored security and medical alarms, and any service/device that requires an analogue phone line, will work with our Broadband and VoIP Phone Services. You may need to contact your relevant third-party service provider to arrange continued service, at your own cost.
- Equipment: In addition to your Equipment obligations under clause 17(i), you agree that any Equipment that we or our Service Partners supply at your Property will remain our or their sole and absolute property as the case may be, and that we or our Service Partners may remove the Equipment from your Property at any time. If any Equipment (or any Network component) is damaged by you or anyone at your Property, you will be liable to pay for repair or replacement of the Equipment (or relevant Network component). If any of the Equipment is lost, damaged or stolen while in your possession (other than for fair wear and tear) then you are liable for the cost of making good that damage/replacing the Equipment.
- Safety: You are responsible for safety at the Property and must comply with any applicable legal, safety, operational and technical requirements that apply to you by law or as reasonably notified by us or our Service Partners from time to time. In particular, you must:
- obtain any necessary consent of the owner of the Property or other person needed for you to satisfy your obligations, and for us, our Service Partners and our respective agents and contractors to exercise our rights, under this Agreement;
- provide us with sufficient space at the Property to install Equipment necessary to supply Services to the Property;
- provide a safe and continuous power supply near the Equipment for it to utilise the Services;
- follow our and our Service Partner’s reasonable directions to ensure the integrity, efficiency, security and safety of any Network and any Equipment or property belonging to us or our Service Partners on the Property or connected to the Network;
- ensure all Equipment located at the Property is maintained, kept safe and secure, remains in a state of good repair and is protected from tampering, unauthorised interference or damage;
- not prevent or hinder our Service Partners or our respective agents and contractors’ safe access to the Equipment and any associated fittings to perform our or their obligations (including for delivery, installation, testing, repair, and maintenance); and
- not act or allow any person or animal at the Property to act in an intimidating or threatening manner to us, our Service Partners or our respective agents and contractors (including during telephone conversations with our Customer Care Team).
- Access to your Property and Consents: Subject to any other provisions relating to access to your Property, you will provide us, our Service Partners and our respective agents and contractors, with reasonable, safe and hazard free access to the Property:
- for Equipment installation, and to perform (from time to time) testing, inspections and maintenance, connections, disconnection and/or removal of Equipment;
- to investigate any suspected tampering with any of the Equipment or our property;
- for any other purpose reasonably necessary for us to perform our obligations at law or pursuant to this Agreement or to enforce our rights under this Agreement. You must also obtain any authorisation, licence or consent (such as resource management or building consents) that we or our Service Partners consider reasonably necessary for us to provide the Services to you and for Equipment installation, connection, disconnection and/or removal.
- Exercise of our rights of access to the Property: We will use all reasonable endeavours to ensure that our rights of access to the Property are exercised by giving you reasonable Notice of the reason and time that we, our Service Partners or our respective agents and contractors require access to the Property. We will also use all reasonable endeavours to:
- cause as little inconvenience to you at the Property as is reasonably possible;
- comply with your reasonable safety, security and operational requirements; and
- observe all proper and relevant telecommunications industry standards and regulations at all times. We will not be required to give you Notice in cases of emergency (see clause 25 below).
- Notice of access: Where we, our Service Partners or our respective agents and contractors require access to the Property to undertake construction, upgrade, repair or maintenance work, we will use reasonable endeavours to give you at least 7 working days’ Notice unless another time is agreed between us. Where we do not receive notice, or adequate notice from a third party (including any Service Partner) that they wish to access the Property, we may not be able to give you Notice as stated above.
- Emergency access to your Property: You will provide us, our Service Partners and our respective agents and contractors with immediate access to the Property at any time for emergency or safety reasons, including to prevent or mitigate any environmental or property damage to Equipment or a Network, and to undertake any urgent work due to any emergency.
- Protection of your security: We will (and any third party acting on our behalf will) ensure that any employees, agents or other persons accessing your Property on our behalf will:
- identify themselves to you, and if requested, provide you with appropriate identification;
- act courteously, considerately, and professionally.
- Security Interest: If required by us or our Service Partners, you agree to grant a security interest to us in each and every part of any Equipment owned by us or our Service Partners as security for payment for that part and of any other part of the Equipment supplied to you, and for any other amount owing by you to us, and for the performance of all your other obligations to us from time to time.
- Availability and Fibre Connections: While we will use all reasonable endeavours to make all Broadband services available to you, not all services will be available to all customers and not all services will be available in all areas. In particular, fibre is not available everywhere. A technician from our Service Partners or our respective agents and contractors may need to visit your Property to determine whether fibre is available. Where fibre is not available, we will endeavour to provide the Services using the connection type relevant for your Property. Where fibre is available, you agree:
- to allow us, our Service Partners or our respective agents and contractors, access to your Property (as reasonably required);
- that any Equipment installed by us or our Service Partners or our respective agents and contractors at your Property remains the sole property of us or them (as the case may be);
- to be bound by the applicable end-user terms of our Service Partners (a copy of which can be provided to you on request), including the LFC End User Terms outlined in clause 7 above; and
- that a connection fee may apply to fibre installations. We will let you know if a connection fee or other additional fees apply.
- Speed and Congestion: Stated broadband speeds are the national peak time average fibre speeds specified in the Commerce Commission’s Measuring Broadband New Zealand (MBNZ) Report, and actual speeds may vary. You acknowledge that:
- Network congestion will occur from time to time, such as when something unexpected happens like a Network backbone outage or unexpectedly high traffic to a particular website or broadband service. We will do our best to reduce any such congestion as soon as practicably possible. Our control of these speeds is limited to the Network. Factors outside our control (such as data transiting third-party Networks, the distance from your exchange and the quality of the cabling connecting you to the Network) can also affect broadband speed and performance.
- we may, at any time, prioritise or optimise traffic to give the best overall experience for our customers.
- IP Addresses: Our Broadband Services are provided with a dynamic IP address. We may, at our discretion, allocate static IP addresses on request, but this may incur an additional cost. By default, only one IP address is supported per customer, however, we may at our discretion allocate more than one IP address on request. We reserve the right to recall any IP address, which may require you to update your systems. Your IP address may change if you change your Plan or Service, which may require you to update your systems and we shall not be liable for any costs associated with the change of IP addresses in these circumstances.
- Routers/Modems: Where you consume our Broadband Service, we may provide you with a router/modem. Where we provide you a router/modem, we provide connectivity support to this device only. Some routers/modems we provide may be “locked”, which means you won’t be able to choose your own network name or password. If you own or purchase your own router/modem, connectivity support to that device is your responsibility and you may need to contact the manufacturer of that device for connectivity support in accordance with clause 19.
- Wi-Fi, security, and data usage: We do not provide an email service, virus filters, virus or spam protection, or other security software. We are not responsible, and accept no liability, for any viruses, spam or any other harmful code which you download via the Internet, or for any inaccurate, illegal or offensive information which may be obtained from your use of our Services. It is your responsibility to protect your computer systems against viruses, spam, other harmful code and unauthorised use. We strongly advise you to:
- password protect any Wi-Fi router/modem that you use so that others not authorised by you cannot access your broadband connection; and
- install appropriate firewalls, spam and email filters and anti-virus software.
You are responsible for monitoring your permitted data usage under your Plan (if any) and for anyone who uses the Services we provide to you. If any faults or unauthorised usage arise, please contact us (see clause 16).
- Internet phone service: Our VoIP Phone Service uses voice over internet protocol (VoIP) technology which means you won’t have a fixed landline for your calling. Instead, your calls will be delivered over your broadband connection.
Vulnerable consumers: If you rely on a medical alarm, life-support or other critical-support or monitored service, and your existing third-party service provider cannot guarantee its compatibility with our Broadband or VoIP Phone services, you should not sign up for our Services.
If you or someone in your household is particularly at risk of requiring the 111 emergency service (e.g. for reasons of health, safety or disability) and you don’t already have an alternative way to call 111 in the event of an outage (e.g. a mobile phone), you can apply to be listed as a Vulnerable Consumer. If you qualify, we will provide you with a means to call 111 in the event of a power failure, at no cost to you. Contact us or visit our Website for more information and to apply.
- Calling: Our VoIP Phone Service allows unlimited calling for person-to-person calls to standard NZ landlines. Calls to “0900”, “018”, “0161”, “0172” and “059” numbers, switched digital (data) calls, satellite calls, collect calls, audio conferencing, and calling card calls are not permitted and may incur additional Charges. You will be responsible for those Charges and be charged at a rate determined by us. Calls to standard New Zealand mobile numbers and international landline numbers are only available by adding separate calling packages.
- Restrictions: If you use our VoIP Phone Service, you agree you will not:
- resell the Service to another party;
- use the Service for:
- auto dialling or multiple simultaneous calling, continuous call forwarding, telesales, call centres, voicemail broadcasting, spamming, or activities which may be considered illegal, malicious or infringing;
- any activity that breaches our Fair Use Policy; or
- any other activity we consider (in our sole discretion) to be non-standard usage.
We may, at our discretion, impose a credit limit or toll bar on your account if you are not meeting the above commitments.
- Connections and handsets: If you use an ADSL or VDSL broadband service and have a telephone plugged into a wall jack, this is referred to as a ‘Plain Old Telephone Service’ (POTS). This type of phone service will be replaced by our internet-based VoIP Phone Service. The POTS service will be disconnected, so your existing telephone handset will no longer work when plugged into the wall jack.
- Phone numbers: As part of our VoIP Phone Service, a new phone number will be registered for each VoIP Phone connection. If you wish to retain your existing phone number you will need to request this, which may incur an additional cost.
Charges, Invoices and Payment
- Payment for Services: You must pay for all Services we supply to you in accordance with the provisions of this Agreement.
- Charges: If you have agreed to an applicable Plan (as recorded in your Application Form or by some other means), we will charge you Charges in accordance with that Plan. Otherwise, we will charge you in accordance with our Standard Rates and Fees. In either case, you must also pay for any other amount provided for under this Agreement or otherwise that we have both agreed you are liable to pay.
- Changes to Charges: In some circumstances, we may change the Charges we charge you:
- pursuant to Price Change Provisions (if any) that apply to your Broadband and/or VoIP Phone Service Plan; or
- if no Price Change Provisions apply, we may change any aspect of the Charges that apply to your Broadband and/or VoIP Phone Service Plan at any time and for any reason (subject to providing you with Notice in accordance with clause 42), including (but not limited) to;
- reflect any change or cost incurred to us due to changes to taxes (e.g., GST), levies (including the Telecommunications Development Levy), or any other governmental or regulatory changes;
- reflect any change or cost incurred to us due to changes in price from a third-party supplier (including an owner and/or operator of any relevant telecommunications Network used by us to provide the Services); or
- if, for any reason, the information that we have relied on to set up your account is incorrect and/or requires amendment; or
- in respect of any one-off fees for Related Services, by way of amendment to our Standard Rates and Fees.
- Notice of changes to Charges: Subject to clause 43, we will give you 30 days’ Notice in advance of any increase in our Charges as permitted under clause 41. If the relevant increase is reasonably likely to have a material effect on your total bill, then you may terminate this Agreement in accordance with clause 55(c).
- No Notice: We are not required to give you Notice of:
- any decrease in the Charges; or
- any change to our Standard Rates and Fees published on our Website which is not reasonably likely to have a material effect on your total bill; or
- any changes made at your request, or the request of a third party acting on your behalf. For example, requests to upgrade or downgrade your Broadband speed or a change to your Plan.
- If you want to change your Plan or Service: You may change your Plan or Service (including your Broadband connection type or speed), subject to any Special Terms that have been agreed between you and us (including, but not limited to, any applicable termination fees, Equipment and Property supply constraints and events outside our control). If you wish to do this, you should contact us and if you are eligible for the different Plan or Service then we will change the Plan or Service that we supply you with as soon as practicable and let you know of any applicable Charges.
- Discontinuation of Plan or Service: From time to time we may amend or discontinue a Plan or Service, in which case we will give you as much Notice as practicable. Where we discontinue a Plan or Service we will also endeavour to move you onto another comparable service or package of services, or you may terminate this Agreement in accordance with clause 55(c).
- Invoices: We will send an invoice each month to your latest postal or email address you have provided us for your Broadband and VoIP Phone use. Recurring monthly Service Charges will generally be invoiced in advance, but sometimes certain Charges will not show on your invoice until some time after the month in which they were incurred (e.g. international calls, or if you are also an energy customer, the energy components of your bill may be retrospective) and you agree you remain liable to pay such Charges. Subject to clause 49, you must pay each invoice by the due date shown on each invoice. Your invoice will:
- itemise the applicable Charges; and
- indicate the billing period for which you are invoiced.
- Payment methods: You can pay your invoices in a number of ways (including direct debit, automatic payments, credit card, internet banking etc.). To find out about the different methods contact us or go to our Website. We will give you 30 days’ Notice if our payment methods change.
- Payment of total invoice: Unless there is a valid dispute about the Charges, you agree to pay the total amount shown on each invoice.
- Valid dispute: In the case of a valid dispute about the Charges that you may owe to us, we will follow the procedure in clause 70 and you only have to pay the portion of the Charges that is not in dispute. Once the dispute is resolved, and:
- if the disputed amount is found to be due by us to you, we will credit your account with that amount; or
- if the disputed amount is found to be due by you to us, you will pay us that amount within 14 days of the dispute being resolved. If you do not pay us within the 14-day period, or you do not make payments of any amounts not in dispute, these amounts will be treated as overdue for the purposes of clause 51.
- Undercharging: In the case of any undercharging, we may issue an invoice for the undercharged amount provided such invoice shall not include Charges for any period that is 2 years or more before the date of the invoice. If we have substantially undercharged you over a period of time, we will allow a reasonable period for repayment of the correct Charges to reflect actual usage.
- Overdue payment of invoices: Subject to clause 48, if you do not pay any invoice by the due date, we may:
- charge you interest at a rate of 1.5% per month on the unpaid amount;
- suspend or restrict your Service;
- take steps to recover payment from you and you agree to pay any collection costs, legal fees and any other costs incurred by us on demand; and/or
- require you to arrange direct debit automatic payments in future.
This does not affect our right to disconnect your Service supply as set out in clause 61.
- Late receipt of invoices: If an invoice is sent to you:
- more than two months after the end of the period it covers, and you were not the cause of the delay, you will have at least the length of time covered by that invoice to pay it (and no interest will be payable in respect of that invoice until the expiry of such time);
- more than three months after the end of the period it covers, and you were not the cause of the delay, in addition to having at least the length of time covered by that invoice to pay it, we will negotiate an appropriate discount to the amount of that invoice with you (and no interest will be payable in respect of that invoice until the expiry of 30 days after the appropriate discount to that invoice has been agreed); and
- you will not be liable to pay interest in respect of the invoices referred to in clause 52(b) above until the expiry of 30 days after the appropriate discount to that invoice has been agreed.
- Bonds: If, based on your previous payment history or any other reasonable grounds, we have concerns about your ability to pay our invoices, we may require an acceptable credit reference from a previous supplier or an additional credit check on you; a bond as security for payment of your account; and/or pre-payment for Services. If we require a bond:
- the amount of the bond is specified on our Website;
- we will provide you with the reason(s) why the bond is required;
- you must pay the bond to us within 14 days of invoice, or sooner if the bond is a condition of your Service supply being reconnected;
- we may use the bond at any time to offset any debts you owe us (and where we do so, we may require you to put in place a new bond);
- if you move to another Property, we may apply the bond to that new account;
- we will refund any unused portion of your bond to you after 12 months, provided you have met all of your obligations under this Agreement. We will arrange a refund of your bond in accordance with our Refund Policy. If we retain your bond for more than 12 months, we will provide you with the reason(s) why; and
- the bond will be held on trust on your behalf and will not accrue interest.
Termination, Disconnection and Reconnection
- Term: This Agreement will continue to apply until it is terminated in accordance with its terms.
- Your termination rights: You may terminate this Agreement:
- where your Plan does not have a minimum term or where any minimum term has expired, at any time and this will generally take effect at the end of your current monthly charge period; or
- where your Plan has a minimum term that continues to apply, as permitted in accordance with the terms of your Plan (if at all);
- at the end of that minimum term;
- immediately on full payment of any applicable early termination or other fee applicable under that Plan; or
- after having received a Notice from us notifying:
- any increase to our Charges under clause 41 (but excluding clause 41(b)(i) and clause 41(b)(iii) where you are responsible for incorrect information relied on by us), where the relevant increase is reasonably likely to have a material effect on your total bill; or
- discontinuation of a Plan or Service applying to you under clause 45; or
- any material amendments to this Agreement which are detrimental to you (excluding minor amendments under clause 73), in which case no early termination fee shall apply; or
- as otherwise permitted under clause 57.
If you cancel your Plan before the end of your monthly charge period, you will still need to pay for that monthly charge period (noting that Charges are generally invoiced in advance). We will continue to provide the Services until the end of your current monthly charge period (unless you ask to be disconnected earlier), and we reserve the right to charge you for the full monthly charge period even if you request an earlier disconnection.
- Our termination rights: We may terminate this Agreement, or stop or suspend a Service at any time:
- in accordance with clauses 4 or 61;
- after any minimum term of your Plan has expired, provided reasonable Notice is given;
- on 30 days’ Notice, if:
- a Plan is applicable to your Service supply; and
- you persistently fail to comply with our Fair Use Policy; and
- you have not been able to agree with us mutually acceptable changes to your Plan to reflect your actual Service usage;
- if we are required to do so by any law (including the Copyright Act 1994).
- Mutual termination rights: Either you or we may terminate this Agreement by Notice to the other party if:
- the other party fails to pay any amount due under this Agreement by the due date and fails to rectify this default after being given 10 working days’ written Notice to do so;
- the other party commits a material or persistent breach of any provision of this Agreement, if upon receiving written Notice of a breach and providing the breach is capable of remedying, the party fails to do so within 10 working days of receipt of the Notice;
- an Excusable Delay continues for more than 30 days or for an aggregate of 60 days in any one year period; or
- in the event of the dissolution, receivership, liquidation, bankruptcy or insolvency of the other party or in the event of the other party making any compromise, assignment, or other arrangement with or for the benefit of its creditors.
- Rights, obligations, and remedies accruing up to date of termination: Termination of this Agreement does not affect any rights, obligations or remedies available to either you or us under this Agreement which have accrued up to and including the date of termination. This includes your:
- responsibility to pay all Charges applicable to any Services supplied by us to you up to and including the date of termination (or, where recurring monthly Service Charges are invoiced in advance, the last day of your charge period or the last day of your notice period), and all other amounts (including any applicable early termination fee, disconnection fee, collection costs, legal fees and any other costs reasonably incurred by us in relation to Charges that are due from you) as required under the terms of this Agreement; and
- obligation to provide us, our Service Partners and our respective agents and contractors with access to the Property or otherwise as may be reasonably required following termination to this Agreement.
- Vacation of Site: Vacation of any Property by you (for whatever reason including eviction or sale) does not affect your obligations under this Agreement or under any applicable Plan. You will continue to be liable to pay for all Services supplied by us to the Property, even if you have vacated that Property, unless this Agreement has been validly terminated by you.
- Removal of our Equipment: Following termination of this Agreement, you must provide us, our Service Partners and our respective agents and contractors free, safe and unobstructed access, during normal working hours to the Property to allow such persons to remove any Equipment owned or provided by us or our Service Partners.
- We may disconnect your Service supply:
- where your application to become a customer was unsuccessful;
- if you request a disconnection;
- without Notice:
- for safety reasons and/or to prevent or mitigate any environmental or property damage, or damage to the Network or any third-party Network;
- where we are requested or required to do so by one of our Service Partners on legitimate grounds;
- where you refuse to provide access to the Property in circumstances where this Agreement requires you to do so;
- where you act, or allow any person or animal at the Property to act, in an intimidating or threatening manner; or
- due to a Force Majeure event;
- if you have materially or persistently breached this Agreement (including under clause 17) in one of the following ways:
- you fail to comply, within 10 working days of receiving a written Notice, with any steps required by us to remedy any failure by you in meeting your Agreement responsibilities, in circumstances where we have indicated in the Notice that the responsibility is material;
- you fail to comply with a reasonable request for a bond under clause 53;
- you have tampered, interfered with or damaged any Equipment or associated fittings at the Property; or
- you have provided us with incorrect, inaccurate or misleading information that is material to this Agreement;
- for non-payment of any invoiced Charges owed by you under or in connection with this Agreement, provided that we will not disconnect your Service supply for non-payment of invoiced amounts which are disputed by you, where you have notified us of the relevant dispute in accordance with clause 49 and the disputed invoiced amounts have been disputed in good faith;
- in circumstances where we have a right to terminate this Agreement; or
- if we are required to do so by law.
Notice before disconnecting your Service supply: Before disconnecting your Service supply pursuant to clause 61(a), (d), (e) or (f) we will give you at least 7 working days’ written Notice (plus 3 days for delivery of the Notice), setting out the intended date that disconnection will take place and the steps that you need to take if you wish to prevent disconnection.
- If all those steps have not been taken within 10 working days of that Notice we will give you a final warning, by way of a phone call or a Notice left at your property, at least 24 hours prior to disconnection (this warning will set out the intended date that disconnection will take place and the steps that you need to take if you wish to prevent disconnection of your Service supply).
- If all steps in the disconnection Notice have not been taken at the expiry of that final 24 hour period, and you have not raised a genuine dispute in accordance with the process set out in clause 70, we will disconnect your Service supply.
- We will only disconnect your Service supply pursuant to clauses 61(a), (d), (e), or (f) on a working day that is not a Friday or the day before a public holiday.
- No Notice required before disconnecting your Service supply: We are not required to give you any Notice before we disconnect your Service supply where you request a disconnection or in the circumstances set out in clause 61(c) or (g). We will not charge you disconnection fees in these circumstances.
- Disconnection by Third Parties: In some circumstances, your Service supply may be disconnected by other parties, such as one of our Service Partners, for example in instances where you breach your obligations under the applicable end-user terms of the relevant Service Partner.
- Payment of all outstanding Charges on disconnection: Disconnection of your Service supply does not affect your obligations under this Agreement or under any applicable Plan, or alter your responsibility to pay all outstanding Charges, including any applicable disconnection fees, collection costs, legal fees and any other costs reasonably incurred by us in relation to the supply of Services to you.
- We may reconnect your Service supply: If your Service supply has been disconnected in accordance with:
- Clauses 61(d)(ii) or (e), we may reconnect the Service supply provided that you:
- pay the outstanding bond amount and/or all outstanding Charges (including any disconnection or reconnection fees); and
- provide proof of such payment provided accompanied with a notice informing us that you wish to have your Service supply reconnected;
- Clauses 61(b), (c), (d)(i), (d)(iii) or (d)(iv), we may reconnect the Service supply provided that:
- you comply with your obligations in terms of this Agreement; and
- we are satisfied that your Property is safe;
Once we have received such notice from you and confirmed that payment of the outstanding bond and/or all outstanding Charges has been received, we will reconnect the Service supply as soon as reasonably practicable. We may charge you a reconnection fee and, in the case of clause 61(d)(ii), we may also require a bond.
- Clauses 61(d)(ii) or (e), we may reconnect the Service supply provided that you:
- Disconnection and reconnection fees: We may charge you reasonable disconnection and reconnection fees where our Services are disconnected and/or reconnected in accordance with this Agreement.
- Monitoring calls and services: You agree we may monitor and/or record any phone call you make to us, to verify information in future or to help us maintain and improve our service quality. You also agree content transmitted or accessed through our Services may be disclosed to third parties if required to do so by law (including under the Telecommunications (Interception Capability & Security) Act 2013).
- Our complaints process: If you have a complaint about the supply of Services under this Agreement, please contact us with any problems as soon as practicable. If your complaint is about amounts owing to us, please also see clause 49 above. You can raise any complaints (including any disputed amounts owing to us) by contacting our Resolutions Team on 0800 668 236 or writing to us at PO Box 404 Whakatane 3158 or emailing email@example.com. Our complaints process is free to use. We will acknowledge your complaint within 2 working days and will make every effort to promptly provide you with a satisfactory response. If we cannot resolve your complaint immediately, we will endeavour to do so within 20 working days. Nothing in this clause 70 shall limit either party’s ability to bring court proceedings seeking a remedy or relief in connection with any breach of this Agreement by the other party.
Telecommunications Dispute Resolution Scheme: If you're not happy with a resolution proposed by our Resolutions Team, then you're welcome to contact the Telecommunication Dispute Resolution Scheme (TDR). The TDR is an industry-wide service that sets the standard for customer complaints about telecommunication services. Nova is a member of the TDR and you can go to them if you’re dissatisfied with any Nova resolution of a complaint (provided we have first been given a reasonable opportunity to resolve the complaint with you). It won't cost you anything to do this, and the TDR will work with you, and us, to try to resolve the problem. For more information on the TDR see www.tdr.org.nz.
- Refer your complaint to Third Parties: We are responsible for managing complaints relating to the supply of Services under this Agreement. However, if it is more appropriate that your complaint is dealt with by a third party (such as a relevant Service Partner) rather than by us, we may refer your complaint to them (in which case we will notify you of this and will give you the name of the relevant company).
Changes to this Agreement
- We may change this Agreement and/or vary any Service from time to time in accordance with this clause 73.
- We reserve the right to make urgent changes to this Agreement at any time and without your consent to reflect any legal, regulatory or industry requirement or change affecting our product offerings or the conduct of our business generally.
- We may also change this Agreement without giving you prior Notice if we reasonably believe that a change is likely to benefit you or have no impact on you.
- For any changes that increase your Charges or reduce your Plan Benefits:
- we will give you 30 days’ notice before making that change; and
- if you are on a fixed term Plan and we make such a change, you can let us know if such a change would be detrimental to you. If we agree, acting reasonably and in good faith, you will be entitled to terminate your Agreement without any early termination fee or change your Plan without any plan transfer fee.
- Assignment by you: You may assign your obligations under this Agreement with our prior written consent, which will not be unreasonably withheld.
- Assignment by us: We may assign or subcontract this Agreement or parts thereof, including our obligations to supply you Services, to another company at any time without your consent, provided any such assignment is unlikely to have a materially detrimental effect on you, in which case we will advise you of:
- the details of the company to which the Agreement is being transferred;
- where you may access the information you need to contact that company; and
- when the transfer will take effect.
- Liability generally: Each of us will only be liable to the other for direct and foreseeable loss incurred by the other party as a result of default under this Agreement or negligence of the first party (or any person for whom the first party is responsible).
- General exclusions: Neither of us will be liable for:
- indirect or consequential loss suffered by the other party (whether arising in contract, tort or otherwise); or
- any loss or damage that we have caused or contributed to where we were acting as a reasonable and prudent operator; or
- any loss or damage arising out of any planned or unplanned Outages; or
- any failure or delay in performing an obligation under this Agreement (other than an obligation to make a payment when due) if due to a cause reasonably unforeseeable or beyond the control of a party and that party has used its reasonable endeavours to perform its obligations on time despite the cause.
- Consumer Guarantees and Fair Trading Act: Nothing in this Agreement excludes or limits any rights or remedies you might have under the Consumer Guarantees Act 1993 or Fair Trading Act 1996.
- Liability cap: The liability (whether arising in contract, tort or otherwise) of each of us to the other under this Agreement is limited to:
- $5,000 in relation to any one event; and
- $10,000 in aggregate in any consecutive 12-month period;
provided that this clause 79 does not apply to where that liability resulted from fraud or wilful default of this Agreement, nor does it apply in respect of any liability you may have to any third party including our Service Partners (e.g. where you are liable for damage to any Equipment).
- No limitation: Nothing in clauses 76 to 79 limit any payment obligation that you have under this Agreement (including any obligation to pay any applicable early termination fee).
- Third party liability: We will not be liable for any loss, costs or damage you may suffer as a direct or indirect result of the negligence of any third party except where the third party is acting on our behalf. For the avoidance of doubt, the following persons will not have any liability to you under this Agreement:
- our Service Partners;
- our (and our Service Partners’) employees, agents, contractors, and representatives;
- other Network Operators who use our network and allow us to use their networks.
This clause is intended to benefit and be enforceable by the above third parties.
- Third party compensation for loss or damage: If we receive compensation from a third party for losses resulting from the interruption of your Service supply, we will pass on an appropriate portion of that compensation to you and, if requested, we will provide you with an explanation of how the amount passed on was calculated.
- Network and other agreements: To meet our obligations to you under this Agreement, we have entered, and we may have to enter into in future, agreements with third parties, including one or more Service Partners. If we do that, you agree to comply with:
- any applicable end-user terms of our Service Partners (which are available on request);
- any requirement of the relevant third party and any obligation or requirement set out in any such agreement intended to be passed onto you will be binding on you.
We will endeavour to maintain a list of current end-user obligations and requirements on our Website. Any agreement we have with our Service Partners does not create or impose any obligation on our Service Partners to you, nor any legal relationship between our Service Partners and you, and does not confer any right, benefit, or privilege to you.
- Contract and Commercial Law Act 2017: Certain clauses in this agreement referencing our Service Partners are intended for the benefit of both us and our Service Partners, and are enforceable as such pursuant to Part 2, Subpart 1 (Contractual Privity) of the Contract and Commercial Law Act 2017.
- Confidentiality: Except as required by law or authorised by us in writing, you must keep confidential all information relating to this Agreement, including the terms of the supply of Services, the pricing relating thereto, and any related correspondence.
- Entire agreement: These General Terms, along with the terms contained in the Application Form and any Special Terms and Additional Terms, record the entire agreement between us and you, and supersede and cancel any prior written or oral understanding, agreement or arrangement concerning the subject matter of this Agreement.
- Further assurances: You and we will execute all other documents and do all other acts and things as may be reasonable to implement and to carry out its obligations under, and the intent of, this Agreement.
- Waiver: No delay or failure to act is a waiver. No waiver is effective unless it is in writing.
- Survival: Each provision in this Agreement, which by its nature is intended to survive this Agreement, will remain enforceable until no longer relevant.
- Severability: In the event any term or provision of this Agreement is held to be invalid, unfair, void, or unenforceable, the remainder of this Agreement will not be affected, impaired, or invalidated, and each such term and provision of this Agreement will be valid and enforceable to the fullest extent permitted by law.
- Delivery and Receipt of Notices: Notices are deemed to have been received by you 3 working days after being mailed by us or our agent, or on the day of transmission if sent by email.
- Governing Law: This agreement is governed by the laws of New Zealand.
- In this Agreement, unless the context otherwise requires:
“Additional Terms” means any additional terms (including any applicable end-user terms of our Service Partners), as notified from us to you, applying to a particular product, Plan, Service or Related Service supplied to you, and includes the LFC End User Terms.
“Application Form” means our application form (completed by you) for the supply of Broadband, VoIP Phone and/or Related Services (as applicable).
“Broadband” means the provision of broadband via a copper ADSL, copper VDSL, or fibre connection.
“Charges” means the Charges for the Services set out in any Plan. These generally include:
- recurring monthly Service Charges or other Charges under a Plan;
- specific fees under any applicable Special Terms or Additional Terms, such as early termination fees;
- taxes, levies or government Charges relating to our Services.
“Equipment” means any equipment used to supply the Services (such as wiring, fibre, fuses, and any hardware, software or other infrastructure) or associated equipment, whether provided by us or any third party.
“Excusable Delay” means any failure or delay in performing an obligation under this Agreement (other than an obligation to make payment when due) if due to a cause reasonably unforeseeable or beyond the control of a party and that party has used its reasonable endeavours to perform its obligations on time despite the cause.
“Fair Use Policy” means our Fair Use Policy published at novaenergy.co.nz/policies (as amended or updated from time to time).
“Force Majeure” means any event beyond our reasonable control (including but not limited to acts of God, industrial actions, war and other hostilities, fire, earthquake, lightning strike, drought, storms, other weather events and/or Network constraints).
“General Terms” means these general terms for Broadband customers.
“LFC End User Terms” means the terms and conditions set by your Local Fibre Company that are applicable to end users on that local fibre company’s network, as described in clause 7 of these General Terms.
“Network” means the telecommunications network and infrastructure, together with all other information technology and telecommunications infrastructure, facilities, software, hardware, systems and services that we, or our Service Partners, use to provide the Services.
“Network Operator” means the owner and/or operator of any relevant Network.
“Notice” means that we may give you written Notice by:
- placing a Notice or advertisement in the local daily newspaper;
- contacting you directly, for example, by sending you a letter or email;
- posting a Notice on our Website;
- including a Notice in a customer newsletter;
- including a statement in your invoice;
- notifying you by any other electronic means; and/or
- any combination of the above.
Where we are required to give you written Notice regarding any matter concerning your individual customer account (i.e. as opposed to Notices to customers generally), we will first use the method(s) in subclause (b) or (e) above.
“Online” means any form of digital media used and approved by us, including our Website.
“Outage” means an interruption, suspension or reduction in the supply of Services, which may be planned or unplanned.
“Plan” means any pricing and data usage Plan (including as described in your Application Form or otherwise confirmed in writing by us) which may comprise a fixed or non-fixed Service term, non-standard Charges for a fixed or non-fixed term, Special Terms, and/or other bespoke terms (including prescribed monthly data usage, account credits etc.), offered by us, at our discretion, to customers from time to time, including as amended in accordance with this Agreement.
“Price Change Provisions” means any Special Term(s), in any Plan or otherwise agreed between us, specifying the ground(s) on which we may change one or more aspects of the Charges that apply to your Broadband and/or VoIP Phone supply.
“Property” means the site or sites, as specified in the Application Form or confirmed in writing by us, to be supplied with Services under this Agreement.
“Related Services” means the supply of goods and services related to the supply of Broadband and/or VoIP Phone to a Property, including the provision, installation, testing and maintenance of any Equipment.
“Service Partners” means our wholesale service providers (including owners/operators of third-party Networks), related companies (as defined in the Companies Act 1993) local fibre companies, VoIP providers, Equipment manufacturers and other third parties we partner with to provide products or services from time to time (and also includes those Service Partner’s own third-party service providers).
“Service” or “Services” means all goods and services of any kind we provide (including Broadband, VoIP Phone and any Related Services) and anything else we do for you under this Agreement.
“Special Terms” means those relevant terms and conditions which govern a Plan, and which must be read together with these General Terms.
“Standard Rates and Fees” means the standard rates and fees which are published on our Website that we charge a group or category of customers or customer-types for Broadband Services, VoIP Phone Services or Related Services from time to time. These generally include specific fees under these General Terms or pursuant to any applicable Additional Terms or for Related Services (including bonds, fees relating to Equipment, non-standard installations, disconnections, reconnections etc.).
“Supply Commencement Date” means the date on the Application Form indicating the date on which Broadband and/or VoIP Phone supply will commence.
“Switch” means the transfer of responsibility for Services from one telecommunications supplier to another telecommunications supplier.
“Third Party Network” means any telecommunications network and infrastructure not owned by us.
“VoIP Phone” means the provision of phone services (excluding mobile phone services) that allow customers to make and receive voice calls over the internet.
"We", "us” or "our" means Nova Energy Limited.
“Website” means www.novaenergy.co.nz.
“Working day” means any day excluding a Saturday, Sunday, New Zealand public holiday and Wellington Anniversary Day.
"You" or “your” means the Account Owner under this Agreement.