Terms & Conditions

Terms and Conditions

PART A: OVERVIEW OF THESE TERMS

1. Introduction
1.1 These Terms set out all of the terms and conditions that apply to Products and Services that we supply to you.
1.2 Any other terms and conditions will not apply unless expressly approved in writing by us for a particular Order.
1.3 We may update these Terms on notice to you in writing. Our updated Terms will apply to all Products and Services you order after we have notified you that we have updated our Terms.

PART B: PRODUCTS AND SERVICES

2. Order process
2.1 You may order Products and Services from us in accordance with our order processes that we advise to you at any time.
2.2 All Orders are subject to acceptance by us. We may accept an Order (in whole or in part) by issuing an invoice for the applicable Products and Services, delivering the Products and Services or otherwise confirming the order in writing.
2.3 We are under no obligation to enquire as to the authority of any person placing an Order on your behalf.
2.4 You may request Variations to Orders. However, acceptance is at our discretion and is subject to our approval in writing, and in accordance with clause 7.
3. Delivery of Products and Supply of Services
3.1 We will use reasonable efforts to deliver Products and provide Services on the Delivery Date specified in the relevant Order. However, unless expressly agreed otherwise, the Delivery Date is indicative only.
3.2 You may collect the Products at our premises, or we will deliver the Products and provide the Services at the delivery location set out in the relevant Order or any other location agreed with you in writing.
3.3 If you request that we leave the Products outside our premises for collection or to deliver the Products to an unattended location, then the Products shall be left at your sole risk. In the event that the Products are lost, damaged or destroyed then replacement of the Products shall be at your expense.
3.4 Subject to clause 16, if the delivery location is at your premises, you must provide our Representatives with suitable access to your premises during normal business hours, together with any assistance reasonably required by our Representatives to deliver the Products and perform the Services.
4. Supply of Products
4.1 Clauses 4 and 5 applies if your Order relates to Products.
4.2 We may deliver Orders in instalments (unless agreed otherwise).
4.3 If you delay, fail or refuse to accept delivery of Products, the Products will be treated as delivered when we were willing and able to deliver the Products. Without affecting any other rights we may have, we may charge you for any reasonable expenses or additional costs incurred by us as a result of the delay, failure or refusal to accept delivery (including storage).
4.4 Risk in the Products passes to you on delivery.
4.5 You are responsible for ensuring that any instructions, recommended uses, applications and installation methods are followed for Products and any cautions and/or warnings are observed.
5. Defects
5.1 You must inspect the Products on the date of delivery and notify us of any alleged defect or damage or incorrect products or quantity (Defects). Upon request, you must allow us to inspect, or return to us, any defective or damaged Products. You should notify us of any alleged Defects as soon as possible to enable us to confirm that any Defects occurred before delivery to you.
5.2 If there are any Defects in an Order, the remedies set out in clause 24.1 will apply.
6. Cancellation
6.1 Either party may cancel an Order by written notice if the other party:
(a) commits a material breach of these Terms which is not remedied within 20 Business Days of written notice of the breach from the other party; or
(b) suffers an Insolvency Event.
6.2 If we are unable to deliver any Products or Services to you, due to reasons beyond our reasonable control, we may cancel the Order (in whole or in respect of any instalment) by giving written notice to you. We will repay you any amount you have paid to us in advance for the relevant Products and/or Services. We will not be liable for any loss or damage arising from such cancellation.
6.3 You may cancel delivery of the Products and/or Services by written notice served within 24 hours of placement of the Order.
6.4 In the case of unsolicited calls and/or visits, you may cancel delivery of the Products and/or Services by written notice within 5 business days of placement of the Order.
6.5 We will not accept cancellation of any Order or any Order for Products made to your specifications, or for non-stocklist items, after the Order has been accepted by us except in accordance with clause 6.
7. Variations
7.1 We may require variations to an Order if we identify factors that affect delivery of the Products and Services to you, before or during our provision of the Products and Services. Any such variations will be submitted to you for approval (Variation Notice). You must respond to a Variation Notice as soon as possible (and within 3 Business Days). We may suspend or delay provision of the Products and Services pending your approval.
7.2 If you do not respond to a Variation Notice within 3 Business Days, we may assume that you have accepted the applicable variations.
7.3 If you notify us, within 3 Business Days of a Variation Notice, that you do not accept the variations, we will cancel the Order (or, if applicable, the remaining Products and Services to be provided under the Order) on notice to you. We will repay you any amount you have paid to us in advance for the Products and Services that we do not provide as a result of such cancellation (less any unrecoverable costs that we have incurred).

PART C: PRICE

8. Price
8.1 The Price for Products and Services will be:
(a) calculated in accordance with our current price list as at the date you submit the relevant Order;
(b) calculated based on our standard hourly rate as at the date of the Services that are provided;
(c) the Price that we have quoted for the Products and Services (subject to clause 8.5).
8.2 We may update our price list and standard hourly rates at any time on notice to you in advance. Any such updates will only apply to Orders placed after the effective date of the update.
8.3 Unless otherwise stated, the Price does not include GST.
8.4 We may charge you for freight, insurance, installation, disbursements and any applicable taxes, duties and levies, in addition to the Price.
8.5 Where we provide a quotation, proposal or estimate:
(a) unless otherwise specified, the quotation, proposal or estimate is valid for 30 days from the date of issue and may be subject to such further conditions as are expressly set out in the quote, estimate or pricing;
(b) we may withdraw the quotation, proposal or estimate at any time before you accept it or we accept an Order by notice in writing to you; and
(c) the quotation, proposal or estimate will be exclusive of any applicable additional amounts referred to in clause 8.4.

PART D: PAYMENT TERMS

9. Payment
9.1 You must pay us all Amounts Owing to our bank account (notified to you and updated at any time) or any other payment method that we agree with you.
9.2 Payment shall be:
(a) before delivery of the Products; or
(b) on delivery of the Products; or
(c) on completion of the Services; or
(d) by way of instalments/progress payments in accordance with the Order; or
(e) as indicated on our invoice; or
(f) 20th of the month following; or
(g) no later than 7 days from the date of the invoice (unless otherwise stated on the invoice), and
(h) in full without deduction, withholding, set-off or counterclaim.
9.3 If you have any dispute relating to an invoice issued by us, you:
(a) must notify us of that dispute in writing within 3 Business Days from the date of invoice (after that period, unless there is a manifest error, you will be deemed to have accepted the invoice); and
(b) will only withhold payment of the amount in dispute and will, upon resolution of any dispute, immediately pay the balance (if any) due to us.
9.4 We and you each agree to promptly deal with any disputed invoices and, where possible, to resolve disputes before the due date for payment.
10. Credit terms and repayment obligations
10.1 The supply of Products and Services to you on credit is subject to our prior approval. We may use the services of credit reporters and debt collection agencies (in accordance with clause 17.2).
10.2 You must notify us immediately:
(a) if you suffer an Insolvency Event. Any Amount Owing will, whether or not due for payment, immediately become due and payable if an Insolvency Event occurs; or
(b) if you are a company and there is a material change in your effective management or ownership.
11. Deposit and guarantee
11.1 We may require that you pay us in advance, or pay a deposit, or provide a guarantee or other security, before we supply Products or Services, as security for any Amount Owing.
11.2 If we cancel an Order (for any reason other than your breach of these Terms), we will refund any deposit that you have paid to us in full. Otherwise, any deposit that you pay to us is non-refundable, unless we expressly agree otherwise in writing.
12. Rights to recover Products
12.1 We retain ownership of all Products that we supply to you until we have received payment in full of the Amount Owing.
12.2 You may resell or use any Products in the ordinary course of your business before ownership of the Products has passed to you. However, you will be deemed to hold the proceeds of sale or use (in whatever form) on trust for us to the extent of the Amount Owing.
12.3 If any Amount Owing is overdue or if an Insolvency Event occurs, you must return Products to us on request or permit us to enter any premises where Products may be stored to repossess those Products.
13. Late payments
13.1 If payment in full of any Amount Owing (which is not subject to a genuine dispute) is not made to us on the due date, we may:
(a) suspend, or cancel (in accordance with clause 6.1(a)), the provision of any or all Products and Services to you;
(b) cancel any rebates or discounts (whether or not previously credited); and
(c) charge you interest at a rate of 2.5% per month on the balance of the outstanding amount from the due date of payment until the date the outstanding amount is paid, accruing daily and charged monthly.
14. Costs of recovering Amounts Owing
14.1 You must reimburse us for any reasonable costs and expenses we incur to recover any Amount Owing, or exercise our rights to recover Products, including any debt collection fees or commission and full legal expenses.
15. Security interests
15.1 You acknowledge that these Terms create, in our favour, a security interest (as defined in the PPSA) in all Products and the proceeds of any Products (in accordance with clause 12.1) (Security Interest), to secure the payment by you to us of the Amount Owing.
15.2 You undertake to promptly sign any further documents which we may reasonably require to enable us to perfect and maintain the perfection of the Security Interest (including by registration of a financing statement) and to provide not less than 14 days’ prior written notice of any proposed change in your name and/or any other change in details (including changes in address, trading name or business practice).
15.3 The parties agree to contract out of sections 114(1)(a), 133 and 134 of the PPSA. You agree to waive your rights under the PPSA to the extent permitted by section 107(2) of the PPSA and to receive a verification statement relating to the Security Interest. Where we have rights in addition to Part 9 of the PPSA, those rights will continue to apply.
15.4 We reserve the right to require a guarantee, or any other additional security (at your cost), as security for payment, before we provide Products or Services to you.

PART E: COMPLIANCE AND INFORMATION

16. Health and safety
16.1 Each party will comply with the Health and Safety at Work Act 2015 (HSW Act), including all applicable regulations under the HSW Act, as well as all applicable standards and codes of practice relating to health and safety. In addition, each party will comply with the other party’s pre-notified and reasonable health and safety policies when on the party’s premises.
16.2 You must notify us of any known hazards arising from your premises to which any of our Representatives may be exposed while on the premises and ensure that your workplace is without risks to the health and safety of any person.
16.3 Each party must consult, co-operate with and co-ordinate activities with all other persons who have a health and safety duty in relation to the same matter in providing the Products and/or Services (including in connection with the delivery of the Products and/or Services).
17. Privacy
17.1 We may collect, use and share Personal Information:
(a) for the purposes of the performance of our obligations or exercise of our rights under these Terms; and
(b) in accordance with the Privacy Act 2020.
This may include sharing Personal Information with our Related Companies.
17.2 We may use the services of credit reporters and debt collection agencies. We may provide your Personal Information to those agencies in order to use their services. Information disclosed to credit reporters (including default information) will be held by them and used to provide credit reporting services.
17.3 If you provide us with any information about a third party (including a Representative), or authorise us to collect that information, you confirm that you are authorised by the individual concerned to provide their Personal Information to us or authorise the collection of information about them in accordance with this clause 17. You also confirm that you have informed the individual of their rights to access and request correction of Personal Information.
17.4 You (if you are an individual) and your Representatives have the right to access, and request correction of, any of your Personal Information held by us.
18. Confidentiality
18.1 Each party must keep confidential all Confidential Information.
18.2 Nothing in clause 18.1 prevents a party from disclosing Confidential Information if disclosure is:
(a) required by law or a Regulator (but only to the extent required or, if applicable, requested by a Regulator);
(b) is reasonably required to enable a party to perform its obligations or exercise its rights under these Terms; or
(c) to a Related Company or Representatives on a ‘need to know’ basis, provided that person is under a duty to keep the Confidential Information confidential in accordance with these Terms.
18.3 We may refer to you as a customer (including by using your logo) and publish any testimonials or references that you provide to us, on our website and associated marketing materials. We will ensure that any such references or testimonials accurately represent your experience with our Products and Services. Please contact us if you do not approve us referring to you in accordance with this clause or have any comments on published content.
19. Insights and Intellectual property
19.1 We may also use any information that we collect in connection with the Products and Services to improve our Products and Services, for statistical and research purposes, and for general information purposes including to provide industry and market insights (together, Insights), provided that:
(a) we must ensure that our obligations of confidentiality and privacy are paramount – for example, we will ensure that any information that we disclose or publish in accordance with this clause 19.1 is in a fully aggregated and de-identified form (so that it does not identify you or any individuals); and
(b) we will not use information that we collect in connection with the provision of Products and Services to you, in accordance with this clause 19.1, if you have informed us that you do not authorise us to do so.
19.2 To the extent required by law, you grant us a non-exclusive, perpetual, irrevocable, royalty-free licence to use and sub-licence information we collect in connection with the provision of Products and Services to you, in accordance with clause 19.1. However, for clarity, we own the intellectual property rights in all Insights.
19.3 We (or our licensors) own all rights, title and interest in the intellectual property rights in the Products and Services at all times.
19.4 Any new intellectual property which is created by us or on our behalf, including as a result of, or in connection with, the provision of our Products and Services, will be owned by us, unless otherwise agreed in writing.
19.5 You assign all intellectual property rights to us with effect from creation, to the extent required to give effect to clause 19.3 and 19.4, and agree to do all things reasonably required by us to give effect to such assignment.
19.6 You warrant that the use by us of any designs, instructions or specifications supplied to us by you will not infringe the intellectual property rights of any other person and indemnify us against any losses, damages, liabilities or costs (including full legal costs) that we may suffer or incur in the event of any such infringement.

PART F: DISPUTE RESOLUTION AND LIABILITY

20. Dispute Resolution
20.1 If a dispute arises out of or in connection with these Terms, either party may give a notice to the other setting out the details of the dispute (Dispute Notice).
20.2 Following receipt of a Dispute Notice:
(a) a Representative of each of us (with authority to settle the dispute) will meet, within 10 Business Days, to try to resolve the dispute;
(b) if the dispute is not resolved within 10 Business Days of our Representatives meeting (or if the meeting does not take place, for any reason, within 10 Business Days of the date of a Dispute Notice), the dispute will be referred to the senior manager of each party (if applicable), who will try to resolve the dispute within a further 10 Business Days; and
(c) if the dispute is not resolved by our respective Representatives in accordance with clause 20.2(b), then either party may commence court proceedings.
20.3 This clause 20 does not restrict either party from applying to a court for interim measures or any other form of urgent relief at any time. However, neither party may commence any other form of court proceeding without first following the procedure set out in this clause 20.
20.4 Each party must continue to perform its obligations in these Terms, despite the existence of a dispute, subject to the termination rights set out in these Terms.
21. Consumer Guarantees Act
21.1 If you are acquiring, or hold yourself out as acquiring, any Products or Services in trade, to the extent permitted by law, you agree that the parties are contracting out of the CGA (to the extent that the CGA would otherwise apply) and that the CGA does not apply to any matters covered by these Terms.
21.2 If you are acquiring any Products for the purpose of resupply in trade, you undertake that you will:
(a) contract out of the CGA to the maximum extent permitted by law in your contracts with your own customers; and
(b) procure that your customers, and each other person in the distribution chain thereafter, contract out of the CGA to the maximum extent permitted by law in their contracts with customers.
You will indemnify us against any liability or cost incurred by us as a result of your breach of this clause 21.2.
22. Warranties
22.1 We warrant that all Products and Services are free from material defects in materials and workmanship. However, this warranty will not cover any defect or damage to the extent that it is caused by:
(a) any fault or defect in our Products or Services resulting from any of your (or your Representatives) acts or omissions (outside of the ordinary use of the Products or Services); or
(b) minor deviations in specification, measurements, colour, weight, size or strength of the Products.
22.2 You acknowledge that, except for the warranty set out in clause 22.1 and any written materials that we provide to you:
(a) we do not provide any other express warranties relating to the Products and Services; and
(b) we expressly exclude any other Product and and/or Service warranties, including any warranties relating to the suitability for resale, quality or fitness for any particular purpose, of our Products or Services. However, this clause 22.2 is subject to any rights that you may have under the CGA (in accordance with clause 21).
23. Third party suppliers
23.1 If you request and authorise us to arrange the provision of Products or Services directly to you by a third party supplier (whether or not such arrangement involves us contracting as your agent), to the extent applicable, these Terms will apply to our Services in arranging such supply, provided that to the extent permitted by law we exclude all liability in connection with the supply of Products and Services to you directly by a third party supplier. You agree to pay any commission or other payments due to us in accordance with these Terms.
24. Limitation of liability
24.1 To the extent permitted by law, subject to clause 24.3, our total liability under or in connection with these Terms and the Products and Services is limited to, at our option:
(a) in the case of Products, any one or more of the following:
(i) the replacement of the Products or the supply of equivalent products;
(ii) the repair of the Products;
(iii) the payment of the cost of replacing the Products or of acquiring equivalent products; or
(iv) the payment of the cost of having the Products repaired; or
(b) in the case of Services:
(i) supplying the Services again; or
(ii) the payment of the cost of having the Services supplied again.
24.2 Subject to clause 24.3, if we have any liability under or in connection with these Terms, to the maximum extent permitted by law:
(a) our total aggregate liability to you for any loss, damage or liability arising out of or in connection with these Terms will be limited to the Price paid by you to us for the applicable Products and/or Services; and
(b) we will not be liable for any:
(i) indirect, special or consequential loss or damage whatsoever; or
(ii) loss of profits, revenue, data, goodwill, customers or opportunity or loss of or damage to reputation.
24.3 Nothing in these Terms (including clauses 24.1 and 24.2) will limit or exclude our liability for:
(a) any fraudulent act or omission;
(b) a breach of clause 18 (Confidentiality);
(c) our wilful breach of these Terms;
(d) our gross negligence; and/or
(e) any matter to the extent that liability cannot be excluded or limited by law.
24.4 The limitations and exclusions on liability in this clause 24 will apply irrespective of whether the legal basis for the applicable claim contract, equity or tort (including negligence) is. However, this clause 24 does not limit or exclude any rights that you may have under statute.
24.5 In no circumstances will we have any liability whatsoever under or in connection with these Terms:
(a) for the acts or omissions of your Representatives or any third party;
(b) for any acts or omissions of performance in accordance with your instructions (or instructions from your Representatives); or
(c) to any third party.

PART G: GENERAL

25. General
25.1 Governing Law: These Terms are governed by and to be construed in accordance with the laws of New Zealand and each party submits to the exclusive jurisdiction of the courts of Auckland, New Zealand.
25.2 Previous Agreements: These Terms supersede and replace any previous written agreements between the parties relating to the Products and Services.
25.3 Sub-contracting: We may subcontract the performance of our obligations (including to a Related Company), on the basis we remain solely liable to you for the performance of our obligations.
25.4 Assignment: You must not assign, novate or transfer your rights or obligations under these Terms without our prior written consent (which may be withheld in our sole discretion). We may assign these Terms to any other person on notice to you (provided that we will request your prior approval (not to be unreasonably withheld or delayed) if the assignment could have any material adverse effect on you). Without limiting the foregoing, we may assign to any other person all or part of the Amount Owing by you to us.
25.5 Amendments: Any amendment to these Terms must be in writing signed by each party, except where stated otherwise in these Terms or where we are required to make changes to ensure compliance with applicable laws (in which case we notify you of the changes in writing).
25.6 Force majeure: We will not be liable to you for any failure or delay in performing our obligations under these Terms where such failure or delay is caused by events or circumstances beyond our reasonable control, including any strike, lockout, labour dispute, delay in transit, embargo, epidemic, pandemic, accident, emergency, order of government or other authority or act of God.
25.7 Waiver: A single or partial exercise or waiver of a right relating to these Terms does not prevent any other exercise of that right or the exercise of any other right.
25.8 Survival: Any provision of these Terms, which is by its nature a continuing obligation, will survive termination.
25.9 Rights of Third Parties: These Terms are not intended to confer a benefit on any person other than the parties to these Terms.
25.10 Relationship: We will provide Products and Services to you as an independent supplier. Nothing in these Terms creates a relationship of employment, trust, agency, joint venture, partnership or any other fiduciary relationship between the parties.
25.11 Non-exclusive: These Terms are not exclusive and do not impose any restriction on us providing Products and Services to, or you purchasing any product or services from, any other person.
25.12 Counterparts: These Terms may be executed in any number of counterparts (including by electronic signature or by email exchange of .pdf copies) which together will constitute the one instrument.

PART H: DICTIONARY

26. Definitions
Amount Owing means any amount owed by you to us, from time to time, including the Price, any applicable amounts referred to in clause 8.4, any interest payable by you, your liability under these Terms and any enforcement costs incurred by us in seeking payment of any Amounts Owing by you.
Business Day means Monday to Friday, excluding public holidays in New Zealand.
Confidential Information means all information that could be reasonably regarded in the circumstances as confidential, including information which relates to the business, interests or affairs of a party, the terms of use, the Products and Services (as applicable), and intellectual property rights, but excludes information which is:
(a) in the public domain, other than as a result of a breach of these Terms;
(b) in the possession of a party prior to the commencement of these Terms without any obligation of confidentiality; and
(c) is independently developed or acquired by a party prior to the commencement of these Terms without relying on information which would itself be Confidential Information.
Consumer has the meaning given to that term in the Consumer Guarantees Act 1993.
Delivery Date means the date for delivery of the Products and/or Services, as specified in the Order.
Insolvency Event means, in relation to you, any of the following steps has occurred (or we have reasonable grounds to believe that any of these steps is likely to occur):
(a) the primary, or all, of your business activities is suspended or ceases
(b) the presentation of an application for your liquidation;
(c) the making of any compromise, proposal or deed of arrangement with all or some of your creditors;
(d) the appointment of a liquidator, receiver, statutory manager, or similar official;
(e) your suspension or threatened suspension of the payment of your debts as they fall due;
(f) the enforcement of any security against the whole or a substantial part of your assets;
(g) if you are an individual, anything having a similar effect to any of the events specified above happens in relation to you; or
(h) any other insolvency event or proceedings analogous to any of the foregoing occurs in any relevant jurisdiction,
in each case, unless it takes place as part of a solvent reconstruction, amalgamation, merger or consolidation.
Order means an order for Products or Services that you submit to us and we approve, in accordance with clause 2.
Personal Information has the meaning given to that term in the Privacy Act 2020.
PPSA means the Personal Property Securities Act 1999.
Price means the Price payable, in accordance with clause 8.1.
Products means any Products (and associated services) supplied by us to you at any time, including the Products specified in an Order.
Regulator means any authority, commission, government department, court, tribunal, or similar having regulatory or supervisory authority over the parties or any of the Products and/or Services.
Related Company has the meaning given to it in the Companies Act 1993, read as if a reference to company was a reference to any body corporate of any jurisdiction.
Representatives means directors, officers, employees, agents and contractors of the relevant party.
Services means any services supplied by us to you at any time, including the Services specified in an Order.
Specific Terms means the terms (if any) that are included in Part I to these Terms.
Terms means these Terms of Trade (including any Specific Terms outlined in Part I), as may be amended from time to time, each Order and any additional terms expressly agreed in accordance with clause 1.2 (if applicable).
We or us means the Supplier of Products and Services, ASHNET Limited.
You or your means the customer purchasing Products and Services from us.
27. Interpretation
In these Terms, unless the context otherwise requires:
(a) headings are for convenience only and do not affect interpretation;
(b) a reference to legislation includes all regulations, orders, instruments, codes, guidelines or determinations issued under that legislation or and any modification, consolidation, amendment, re-enactment, replacement or codification of it;
(c) a reference to “in writing” includes by email and a reference to “agree” or “agreement” or “notice” or “approval” means an agreement, notice or approval (as applicable) in writing;
(d) the words “include” or “including”, or similar expressions, are to be construed without limitation;
(e) a reference to a party to includes that party’s successors and permitted assigns and substitutes; and
(f) a word importing the singular includes the plural and vice versa.

PART I: SPECIFIC TERMS

28. Additional or varied Services
28.1 We reserve the right to change the Price:
(a) if a variation to the Products which are to be supplied is requested; or
(b) if a variation to the Services originally scheduled (including any applicable plans or specifications) is requested; or
(c) if there are charges in the preparation of the initial quotation, which may include customer discussions, project scoping, research, testing and business analysis, onsite changes to wiring or site location etc. However, in some instances the aforementioned services may be charged to you additionally (at our sole discretion) which will be charged for on the basis of our standard hourly rates (and double such rate for any Services provided outside our normal business hours).
29. Fixed term
29.1 The commencement date shall be the date of the first delivery of the Services, or from the date of signing, whichever, is the earlier. The contract term shall be for the period (‘initial term”) as agreed between both parties and shall revert to a monthly roll over basis automatically, thereafter, unless agreed otherwise until terminated by either party by giving at least 30 days required notice as defined in the contract term prior to the expiration date of the initial term or any additional term.
29.2 You acknowledge and accept that the Price stated will remain fixed for an initial period of 12 months from the date of the contract term and will then be subject to revision on the basis of the movement in the Consumer Price Index (CPI).
29.3 We agree to take no less than a reasonable time to process subscriptions and act on any notification by you, however the date upon which a subscription, renewal or selection of a plan is processed, shall be reasonably determined by us.
29.4 You acknowledge that your plan can be increased at any time, however it cannot be decreased within 3 billing periods of such increase and cannot be decreased to a plan below that which you started on.
29.5 You acknowledge and accept that termination:
(a) of any Services during an invoice month, any fixed monthly charges for the subsequent invoiced monthly period remains payable by you;
(b) of the Services prior to provision thereof to you, we may charge you any reasonable costs incurred by us while preparing to provide the Services to you.
30. Suspension and restrictions
30.1 We can suspend or restrict the provision of the Services to you:
(a) temporarily if we reasonably believe it is desirable to do so in order to maintain or restore part of a third party supplier’s network. We will try and perform maintenance and repair work at a time that will cause the least inconvenience to you. We will not charge you for (and rebate if necessary) any charges during any period of suspension exceeding 24 hours. If we have no alternative but to cancel the Services due to necessary maintenance or restoration of any part of a third party supplier’s network, we will not charge you any applicable termination fees; and
(b) during the period before we terminate the Services because you are in material breach of this contract. You will be in material breach of this contract if you:
(i) do not pay the charges for the Services when they become due and payable;
(ii) use the Services in a way which we reasonably believe is fraudulent, poses an unacceptable risk to our security or network capability (or that of our suppliers or other customers), or is illegal or in contravention of this contract.
30.2 If you ask us to reconnect the Services following any suspension or termination either by you or us, you will have to pay us a reconnection/set-up fee, in addition to any charges that may be outstanding.
30.3 If any suspension lasts for more than 7 days, we will not charge you any charges during the period of suspension, but we may charge you a reconnection/set-up fee to restore the Services.
31. Your acknowledgments
31.1 You acknowledge and accept that:
(a) you are at least 18 years of age and acknowledge that there are some areas of the internet which are unsuitable for minors. You shall be responsible for the use of the Services by a minor authorised by, or the responsibility of, you, and the costs arising from such use;
(b) where this contract states that the Services are provided for a particular purpose, you must only allow the Services to be used for that purpose. You may not use the Services to commit an offence or allow anybody else to do so. You are responsible for ensuring that no one interferes with the operation of the Services or make it unsafe. You must follow our reasonable instructions if we determine that your use of the Services interferes, or threatens to interfere, with the efficiency of our network or our supplier’s networks.
31.2 Whilst we may supply Products in order to facilitate the provision of Services (e.g. routers, etc.), subsequent replacement of such should any failure thereof occur beyond its warranty period is your responsibility and at your cost.
31.3 You acknowledge that (and indemnify us), where we provide software for the Services:
(a) we do not make any warranty or representation regarding the performance of the software as it operates on your computer;
(b) the software may not be compatible with some operating systems, including older versions; and
(c) you shall not disassemble, decompile, reverse engineer or modify the software.
31.4 You have no intellectual property rights in the domain name, email address, User ID or password allocated by us, and these are not transferable to you once the Services are terminated.
32. Terms of use
32.1 When you use the Services, you must:
(a) comply with all laws, all directors by a regulator, all notices issued by authorisation of, or under, law (e.g. Copyright Act 1994, the Privacy Act 2020 and the Defamation Act 1992) and reasonable directions by us;
(b) keep your account information, password, data and Products confidential and secure. You remain responsible for any use or misuse of such;
(c) follow any reasonable instructions provided by us in relation to the Services;
(d) access and use the Services solely in accordance with these terms and conditions and any reasonable instructions provided by us;
(e) employ back-up power and surge protectors at your premises;
(f) respond promptly to our communications in relation to the Services; and
(g) provide accurate and prompt responses to our requests for any information or documentation reasonably required by us to provide the Services, and that such information will be correct and complete.
32.2 You must not:
(a) use, or attempt to use, or permit another person to use or attempt to use, the Services:
(i) so as to cause offence, to defame, abuse, communicate obscenities, menace or annoy;
(ii) by exploiting the network resources such as excessive use of traffic on a fair use policy;
(iii) for any purpose or activity of an illegal or fraudulent nature in any jurisdiction, including damaging any property or injuring or killing any person, to breach the security of any computer network (hacking), to breach any persons privacy, or to distribute unsolicited software or junk mail;
(iv) for advertising purposes without our express written consent;
(v) to breach any of the intellectual property rights held by us or any third party;
(vi) to transmit, publish or communicate materials which is defamatory, offensive, abusive, indecent, menacing or unwanted;
(vii) to expose us to liability (including any claims for damages);
(viii) in any way which damages, interferes with or interrupts the Services, or a supplier’s network used to provide the Services;
(ix) to intercept or attempt to intercept any communication not otherwise intended for you; and
(x) contact our suppliers or the wholesale / carrier or third party provider of a service in relation to the Services or service faults. The supplier may impose a fee for doing so and this fee will be passed onto you. They may, however, contact you in relation to any reported service difficulties in relation to appointment making and service restoration, and for this reason we will need to provide your contact details to such parties.
32.3 If, in our opinion, the Services are being used by anyone in breach of these terms and conditions (including clause 32) or Internet etiquette, we may:
(a) refuse to post such infringing information to public areas;
(b) remove, review or edit such infringing information from any computer on our network, with the exception of private electronic messages;
(c) discontinue any infringing communication;
(d) suspend the Services indefinitely, or for a specific period;
(e) terminate the Services, and refuse to provide the Services to you, or your associates, in the future;
(f) inform appropriate government and regulatory authorities of suspected illegal or infringing conduct.
32.4 You authorise us to delete without notice or liability any information or materials found on the Products (or equipment controlled by us) that is found to be of an obscene nature, unauthorised, unlawful, uncollected for an excessive period of time or excessive in volume.
32.5 You acknowledge and agree that you will be responsible for:
(a) ensuring any other person using the Services we provide to you, or doing anything in relation to them, also meets the obligations imposed in accordance with clauses 32.1 and 32.2;
(b) your relationships with other suppliers. If you have a problem with someone else’s service or equipment, you are required to request them to solve it, and not us.
33. Our responsibilities
33.1 We will use reasonable care and skill in providing the Services to ensure you receive continual, uninterrupted and fault-free Services for the duration of this contract. However, given the nature of telecommunication systems, including our reliance on systems, equipment and services we do not own or control (including third party network or service suppliers), we will endeavour to make sure that the Services do everything we claim they will do for a reasonable time after they have been provided to you, but we cannot guarantee the continuous availability of the Services at all times (or that they will be fault-free), which shall be subject to regularly scheduled maintenance cycles, and any events/circumstances beyond our control. We shall not be responsible for any failure or delay by us to provide the Services (promptly or at all) due to circumstances beyond our reasonable control and/or caused by a third party, and such shall not itself constitute a default by us under this contract. Where necessary for commercial, technical or other reasons:
(a) a network or service supplier connected to this contract may suspend or terminate its connection to any services provided; and
(b) those services may suspend or terminate their connection to another network or service provider.
33.2 We shall make all reasonable endeavours to ensure that any Services that are disrupted are restored as soon as we are reasonably able.
33.3 We have no responsibility:
(a) to provide training in the use of the Services and/or related applications; or
(b) for any failure in providing the Services where attributable to a fault in your phone line, and no credit or refund in relation to the Price will be considered for such outages.
33.4 No guarantee is given by us as to the availability (at any or all times) of the Services (including stability and connection speeds of data transmitted when using the Services) as advertised, as such may vary depending on the service kind and delivery infrastructure, including:
(a) whether you are located in a coverage area;
(b) the number of users sharing the network;
(c) the computer hardware and software you use;
(d) general activity on the internet;
(e) speed and capacity of the server being accessed.
33.5 When calling for technical support, we require you to be in front of your computer and note that as this is a free service, technical calls may be limited to 15 minutes. Any calls exceeding the time limit or resulting from abuse of your system may incur additional charges.
33.6 We will only provide support to mainstream and current versions of operating systems and devices.
34. Access
34.1 We may need to access the property in order to provide the Services. You agree to provide us safe access to the property to:
(a) install any Products to facilitate the provision of Services to you;
(b) inspect, test, maintain and repair or replace the Products; and
(c) recover the Products after the Services have been terminated. We shall not be liable for any costs of removing the Products or remediation of the property.
34.2 If you do not own the property, it is your responsibility to get the owner’s permission for us to access the property and install any Products.
34.3 You owe us the value of the Products as a debt due if we cannot access the property to recover it, or in the event the Products are lost or damaged.
35. Connection and installation set up Services
35.1 You accept that broadband, or the Services providing access to the internet and other data related services via a wireless connection is not available in all areas. Occasionally factors like the distance of our equipment from a particular site or address mean we may not be unable to deliver broadband, even where our broadband is available in the your area.
35.2 In areas where the Services are available, we do not offer any warranty or guarantee:
(a) that the Services will be available in each place within the area where there is coverage;
(b) as to the quality of the Services, which may be affected by others involved in delivering the Services to you, or by the hardware and/or software you are using. You are responsible for your arrangements with any third parties providing you with software or hardware;
(c) that drop-outs will not occur;
(d) that there will be no delays in transferring data when switching between bearer networks;
(e) that there will be no congestion on the network.
35.3 Service difficulties experienced with the Services provided to you by us must be reported to us immediately. The date and the time the fault is reported to us will mark the commencement time
35.4 Standard fibre installation will include the work needed to connect your property to the fibre in your street. You will be advised of any applicable charges prior to you agreeing to the commencement of any installation work. This includes installing and connecting:
(a) the fibre cable from the street (up to 200m through your property;
(b) the External Termination Point (ETP);
(c) the Optical Network Terminal (ONT); and
(d) the Residential Gateway (RGW).
35.5 A non-standard installation will require additional charges. You will be advised on the charges that apply to your specific installation prior to the commencement of any installation work. Non-standard installations include:
(a) if your property is more than 200m metres from the fibre access point on the street;
(b) if your RGW is installed at a separate location to the ONT and additional wiring is required; and
(c) alarms, faxes, the interactive features of PABX’s is incompatible with this.
35.6 Notwithstanding clause 35.1 broadband speed does vary. Factors which impact on speed include how close your property is to an exchange, your computer’s capability, connection and wiring, Wi-Fi, interference from electrical devices, the location and quality of the websites, you choose to view, and any software you may have downloaded (malicious or otherwise). The day-to-day performance will also be affected by the number of users in your household and also on our network of third parties that we use to provide the Services to you.
36. Advice and recommendations
36.1 Any advice, recommendation, or information that we provide you in relation to the Services is based on our knowledge, experience and any relevant information provided by you at that time. We shall not be liable in any way whatsoever for any damages or losses to you suffer or occur where you elect not to adhere to the advice, recommendations or information we provide you.
36.2 There are many ways that undesirable content could reach your computer, including through web browsing, email, instant messenger applications and physical access to your computer by other people. We cannot guarantee that your connection will be free of viruses, worms, Trojan horses or any other harmful materials and we recommend that you take reasonable precautions to protect your computer and data, including:
(a) operating firewall to filter internet traffic;
(b) running and regularly updating anti-virus and anti-spyware software; and
(c) taking reasonable precautions with passwords, credit card numbers and allowing physical access to your hardware by other people.
36.3 You must prepare and maintain sufficient back-up files and data storage capacity for all your files and data, including websites, emails and any other electronic data. We shall not be held responsible or liable for any loss, corruption, or deletion of files or data.
37. Usage
37.1 Other than circumstances where we have incorrectly charged you for the use of the Services, you are responsible for and must pay for any use of the Services, whether you authorise it or not. You are in the best position to monitor and control the usage of the Services and must ensure that they are not being used without your authorisation by reviewing usage regularly. If you believe the Services are being used without your authorisation, please contact us immediately.
37.2 The calculation of your service time shall be determined solely by us. Any itemisation and/or statement signed by our manager, attesting to the service time use by you, shall be conclusive and irrefutable evidence of that service time.
37.3 If you do not disconnect the Services when you vacate the property, you must pay for any use of the Services by any subsequent occupants or other parties. We therefore suggest you make every effort to ensure the disconnection of the Services when you vacate the property.
37.4 You acknowledge that, in some circumstances we (or the network supplier) may:
(a) monitor usage of the Services for excessive or unusual usage patterns, but we do not promise to do so. You remain responsible for monitoring the use of the Services in accordance with this clause 37; and
(b) be required to intercept/monitor communications sent over the Services.
38. Your equipment
38.1 Where you use equipment that does not belong to us in the course of utilising the Services:
(a) you are responsible for maintaining and repairing that equipment. We will not be responsible for any faults resulting from your failure to maintain and repair that equipment;
(b) where the equipment causes a fault in the Services that we need to repair, we may charge you for repairing the fault. We will advise you of the call-out fee and hourly rates applicable prior to commencing work on the fault;
(c) you must only connect equipment that complies with relevant technical standards and other relevant requirements;
(d) you must make all reasonable changes to the equipment when we request you to do so to avoid damage or interference;
(e) you must advise us of any changes to the equipment and/or telecommunications services that may affect our ability to provide the Services to you; and
(f) it remains your responsibility to contact the manufacturer directly in the event of any defect, etc.
38.2 You are responsible for any equipment at the property (including any Products that belong to us) and you must pay us for any loss or damage to the Products at the property, fair wear and tear excepted.
39. Repair notice
39.1 If you are a consumer within the meaning of the Consumer Guarantees Act 1993, this clause constitutes a Repair Notice given under this legislation and you acknowledge that:
(a) the repair of equipment may result in the loss of any files stored on the hard drive, etc. (“User-Generated Data”). It is the sole responsibility of you to back-up any User-Generated Data which you believe to be important, valuable, or irreplaceable prior to submitting the equipment for repair; and
(b) equipment presented for repair may be replaced by, or repaired with, refurbished Products of the same type rather than being repaired.
39.2 You acknowledge and agree that we shall not be held responsible or liable for:
(a) any loss, corruption, or deletion of files or data (including, but not limited to, software programmes) resulting from illegal hacking or Services provided by us. Whilst we will endeavour to restore files or data (at your cost), it is the sole responsibility of yours to back-up any data as per clause 39.1(a). You accept full responsibility for your software and data, and we are not required to advise or remind you of appropriate backup procedures;
(b) any loss or damage to your software or hardware caused by any ‘updates’ provided for that software; and
(c) any unlicensed software, data loss or problems arising caused by the user or software.
39.3 It is the policy of ours to report all findings of illegal material (including, but not limited to, images and software) to the relevant authorities.
39.4 If during the provision of the Services we are required to perform a backup of any data to our server as we see fit in order to repair computers/devices, such information data will be held for a maximum of 30 days. You must inform us within 30 days (commencing from the repair date) if any data is missing so that we can attempt to restore the missing data. Whilst we will take all possible precaution to protect your data on our servers, it may be required in some circumstances to view personal data in order to test a successful data recovery or data restore procedure, we will treat such information as confidential and shall not disclose any or part thereof of said information, unless it falls under the umbrella as detailed in clause 39.3 . After 30 days we will delete the data, and we accept no liability for deletion of files should you fail to comply with this clause.
40. Unpaid seller’s rights
40.1 Where you have left any item with us for repair, modification, exchange or for us to perform any other Services in relation to the item and we have not received or been tendered the whole of the Price, or the payment has been dishonoured, then we shall have:
(a) a lien on the item;
(b) the right to retain the item for the Price while in our possession;
(c) a right to sell the item.
40.2 The lien of ours shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
41. Credit card information
41.1 We will:
(a) keep your personal details, including credit card details for only as long as is deemed necessary by us;
(b) not disclose your credit card details to any third party; and
(c) not unnecessarily disclose any of your personal information, except in accordance with the Privacy Act (clause 17) or where required by law.
41.2 You expressly agree that, if pursuant to this contract, there are any unpaid charges, other amounts due and outstanding by you, any equipment (or any part of them) supplied on hire that are lost or damaged or any other additional charges are due from you which were not known at the time of the return of the equipment, we are entitled to immediately charge your nominated credit card for these amounts, and is irrevocably authorised to complete any documentation and take any action to recover from the credit card issuer any and all amounts which may be due by you pursuant to the terms of this contract.