KINECT
CUSTOMER TERMS AND CONDITIONS FOR TELEPHONY AND INTERNET SERVICES
(Effective 1 August 2007)

1. These terms form our agreement with you.
These terms and conditions set out the basis on which Kinect provides telephone and/or Internet services to you. They are effective from the date specified and replace any other agreement you may have had with us for telephone and/or Internet services.

Additional terms may apply to some of our services. If so, we will either send you a copy of what those terms are or make a copy available to view at www.kinect.co.nz. If there is any conflict between these terms and any additional terms, the additional terms will prevail.

2. Our commitment to you
We will always try our best to provide you with reliable good quality services, however, we cannot guarantee those services will be interruption or fault free. If you do have a problem with our service, at any time, please contact our customer service team and we will work to restore the service as soon as it is practicable. If we cannot fix the problem then you may cancel that service by telling us.

3. Your commitment to us
In return for us providing the services to you, you agree to:

• Follow our reasonable instructions about using the services; and
• Use the services for only the purposes that they are provided; and
• Pay for the services that we provide to you and charge to your account by the due date shown on your bill (even if somebody else uses those services, as such services will be treated as having been used by you); and
• Ensure that all information you give us is correct. Where any information you have supplied to us changes (such as contact details) you must provide us with updated information as soon as possible; and
• Not use the services in any way that is unlawful, malicious, obscene or in an manner that could interfere with our network or other provider’s networks or interfere with another customer’s use of our services; and
• Not use the services in a manner that infringes on the privacy rights of any other person; and
• Make sure that any other person that uses the services that we provide to you also abides by the terms of this agreement.

You will indemnify us against all liability, losses and costs that we incur through your failure to conform to the above or your failure to perform any other obligation that you have under this agreement.

4. Using our services
We are not obliged to provide you with services unless we accept your application. We can decide whether or not to accept any application. You agree that we can act on any verbal instructions you give us in relation to the services.

From time to time we may amend or discontinue our services and our packages of services. Where we do this we will endeavour to give you advance notice of this. If we discontinue a service or a package of services we will endeavour to move you onto another comparable service or package of services. Where the provision of a service is dependant on a third party to provide services to us we cannot promise that those services will always be available or fully functioning however we will endeavour to restore those services as soon as possible. We may need to terminate that service if the third party is unable or unwilling to provide a continued service to us. Where this occurs we will provide as much notice as we are reasonably able and will endeavour to provide alternative services. Where you do not agree to the changed service or package, or us moving you onto another service or package, then notwithstanding anything else in these terms you may cancel that service or package within 5 working days of receiving our notice.

Notwithstanding the above, we are free to choose the manner in which and the technology by which we provide a service. Where we change the manner or technology by which we provide a service provided the service itself remains materially similar this shall not be a reason for you to terminate the service.

While we will endeavour to make services available to you where we can, not all services will be available to all customers and not all services will be available in all areas. Where information is readily available to us we will endeavour to advise you of any restrictions at the time you purchase the service.

We may install equipment and carry out other work at your premises. If we do so, you must allow us and our contractors’ access as and when we reasonably require. You must also obtain any necessary consent to such access for the purposes of installing, maintaining, monitoring and removing such equipment or carrying out such work. We will comply with all reasonable health and safety guidelines that you advise to us and ensure our representatives carry identification with them.

Any equipment that we supply and own at your premises will remain our sole and absolute property. You will provide and maintain, at no cost to us, suitable space for the safe and secure housing of the equipment provided. If the equipment requires repair we may get you to send it to our nearest repair centre at your cost. You will ensure that no person interferes with or damages the equipment (including, without limitation, after termination of this agreement) housed at your premises without our prior written consent. If any of our equipment is damaged while in your possession (other than for fair wear and tear) then you are liable to pay to us the cost of making good that damage.

While we take reasonable security precautions, due to the nature of telecommunications services we cannot guarantee the confidentiality of any calls or transmissions you make using our services.

You must keep confidential any password or PIN number which is used by you to access our services and we recommend that you change this on a regular basis for security reasons. You must also change your password or PIN number if we ask you to do so.

We can suspend or restrict our services at any time if:

• we consider it necessary to protect or maintain our network (or the networks of those that supply services to us); or
• we believe that you have breached any of our terms and conditions.

5. Our charges
You must pay our charges for the services we provide to you, regardless of whether you or someone else uses those services. We may vary our charges from time to time including those for any free services in accordance with the terms set out in this agreement. You can always check the latest available charges by calling customer services on 0800 87 87 87.

We will invoice you for services we provide to you. However we may elect to carry forward charges to the next billing period if your usage is below a minimum level. Fixed charges are normally payable in advance. Usage based charges (such as toll calls) are payable in arrears.

You must pay each invoice by the due date and if you do not we will make reasonable endeavours to notify you of any overdue amounts. If you do not pay any invoice by the due date we may:

• withhold any rebate, discount or similar incentive which would otherwise be available to you; and
• suspend or restrict your service; and
• charge you an overdue payment notification fee, a disconnection notice fee, and a late payment fee; and
• charge you any disconnection or reconnection fees; and
• continue to charge you any recurring monthly charge applicable for those services during the period of suspension; and
• recover from you any debt recovery costs; and
• require you to put in place a direct debit payment arrangement for payment of our invoices.

If we are going to disconnect your services for non-payment we will provide at least 5 working days notice to you at your last known email, facsimile, text or billing address. For the avoidance of doubt we may restrict your services without notice. Fees in relation to disconnection and reconnections for non-payment are listed in our charges on www.kinect.co.nz.

We will endeavour to ensure our invoices to you are accurate. If you wish to raise a genuine dispute regarding an invoice of ours please do so before the due date. You may withhold payment of the disputed amount while the issue is investigated and resolved however you must pay any undisputed amounts. We will consider any issues raised by you in a timely manner, in good faith, and will promptly advise you of any resolution or amendment to our charges. If we have made a mistake we will correct it and make the required adjustments to your invoice. If we substantially undercharge you over a period of time we will arrange for a reasonable period of time for which you can pay those charges.

Sometimes charges will not show on your bill until some time after the month in which they were incurred (for example charges for tolls to some overseas destinations or possibly to 018 or 0900 services). You will still be liable for such charges. From time to time, you may incur charges for calls or transactions made on another operator’s network where these charges are charged to the phone line billed to you by us. These charges include, but are not limited to, 0900 calls, collect calls, directory or operator assisted calls, calling card calls, 0591 and 0161 calls, diverted calls, conference calls, message exchange calls, Telecom mobile shout calls, pager calls or additional installation charges and site visits by a technician. You will be responsible for those charges and be charged at a rate determined by us taking into account the rate published by that network operator for those services. These charges may not be subject to other Kinect discounts.

Please be aware that the manner in which the Telecom system works in New Zealand means that if you include the area code when you dial a local phone number it will be treated as a national toll call and you will be charged at national rates accordingly.

We may at our discretion impose a credit limit or toll bar on your account if you are not meeting your commitments.

If you breach any term of this agreement, and we incur costs as result, then you must pay those costs if we require you to do so.

6. Internet services
This clause applies if we provide Internet access services to you.

You must not use a flat rate dial-up internet access account as a permanent connection nor should you use your account to access the internet from more than one machine at any time. If this does occur we reserve the right to charge a reasonable sum for this. We can at our discretion disconnect you if we consider that your use of our internet access service has been excessive or unreasonable.

The market is evolving all of the time so we reserve the right to change the nature of a plan (speed, data, and price) upon notice.

The plan speed refers to the maximum speed possible - actual speed depends on a variety of factors and some customers may never achieve maximum speed due to the nature of the networks they are connected to. We may use traffic prioritisation policies for both capped and uncapped plans at any time to improve the overall performance amongst our customers. There are other factors that can influence the particular speeds or latency you can achieve to servers nationally and internationally. Our control of these speeds is limited to our own network. Connections to servers outside the Kinect network are on a reasonable endeavours basis and it may not be possible for you to achieve the maximum expected speeds or latency where you are connecting to equipment outside our control.

We cannot guarantee that our internet services will always be available or that they can always be utilised for any particular purpose.

You are responsible for downloading to your computer any email that you wish to keep. We may without notice to you remove any mail that remains on our servers for more than 90 days. If you do not regularly remove your email or allow it to build up to unreasonable levels we can remove it ourselves.

You must not knowingly transmit any worms or viruses or use our services in a manner which is likely to or is intended to damage or compromise the security of our network or anyone else’s network.

We do not control the information that can be accessed through the Internet. Accordingly we are not responsible for any inaccurate, illegal or offensive information which may be obtained from your use of our services. If you use our virus filter then you acknowledge that that service works by attempting to prevent our mail servers from forwarding contaminated emails to the recipient. However we cannot guarantee that the service will prevent all viruses from being forwarded (as an example, it may not identify new viruses). The service will not filter out viruses that do not pass through our mail servers (such as viruses contained on "Hotmail" or contaminated disks). Because of this we strongly recommend that you install your own anti-virus software also. We are also not liable for any viruses or other harmful code which you download via the internet.

If your phone line is disconnected for any reason, we will be unable to provide service to you and this will mean that you have terminated our agreement for the provision of that service. If services are reinstalled, even on the same phone number, you may incur installation charges.

If you change your address or phone line you need to provide us with as much advance notice as possible so we can minimise any service disruption for you. You may also need to cancel some or all of your current services otherwise you will still be responsible for paying for the services that we provide to your old address.

7. Phone numbers and directories
Any phone number that we allocate to you does not become your property. If for any reason we need to change your number we will give you as much notice of the change as we can.

If you wish your details to be available through directory assistance and/or in the phone book then we will pass your name, number and address to Telecom. You agree that Telecom can use your details for those purposes. Subject to the terms of the Consumer Guarantees Act 1993, you agree that no member of the Telecom group of companies (or their officers, employees, contractors or agents) has any liability to you in connection with the directory assistance service or your phone book listing.

8. Changing supplier
You acknowledge that where you are changing service provider:

• if we are your new service provider we will only provide those services agreed with you; and
• if there are some services we cannot provide, you will need to ensure these will continue to be provided to you by your previous service provider; and
• there may be consequences (such as changes in price or availability of service) with your previous service provider for services still provided by it; and
• you remain subject to the terms and conditions of use of your previous service provider for services provided by it and you will remain liable for all charges that you owe to it, including unbilled charges and termination charges; and
• we may charge you on behalf of your previous service provider for any services provided by it that it has not previously invoiced you for.

9. Credit arrangements
We may decide to use information that you give us in order to check your creditworthiness at any time. You agree that we may pass on your information to credit reporting organisations so that they can run credit checks on our behalf. We may reject your application or terminate services to you based on the credit information that we receive. We may also let those organisations know if you have not paid your bill. You agree that at any time those organisations may pass on to us information about you that they hold. We will use that information to make decisions about providing or continuing to provide you with services. You also agree that those organisations may keep any information about you that we have passed on to them and use it for the purposes of their businesses, which may include supplying it to other entities that use their services. You may have to pay us a deposit before you can use, or continue to use, our services. We will tell you when this is required.

10. Terminating you agreement with us
A minimum term may apply for some or all of our services.

We will tell you when this applies. Unless a minimum term applies to a service, you may ask us to stop a particular service or cancel this whole agreement at any time and for any reason by giving us 5 working days notice. Where you cancel a service and do not expressly ask for this agreement to be cancelled it will remain in place and will apply to any future services you may request from us. If a minimum term applies to a service you may stop that service at the end of the minimum term or at any time after the minimum term, in the same way as you are entitled to stop any other service. (Any cancellation by you before the end of a minimum term will not be effective until the end of the minimum term.) You can do this by contacting us on 0800 87 87 87.

We may stop or suspend a particular service or cancel this whole agreement at any time without telling you if:

• you do not pay for any of our services by the due date shown on your bill; or
• you give us incorrect information; or
• you have not given us a prepayment we have asked for; or
• you have not complied with these terms and conditions.
  

If we are unable to carry out any of our obligations to you because of a Force Majeure event, this agreement shall remain in place except our obligations shall be suspended without liability for a period equal to the period of the continuing Force Majeure. If we suffer a Force Majeure event that will last for a significant period of time we will endeavour to notify you of this at the earliest practical time. A “Force Majeure” event means any event or circumstance which is beyond our reasonable control. This includes, but is not limited to, acts of God, strike, lock out or other industrial disturbance, act of a public enemy, or declared or undeclared war, threat of war, terrorist act, blockade, revolution, riot, declared civil defence emergency, epidemics or disease, insurrection, civil commotion, public demonstration, sabotage, act of vandalism, acts of animals, lightning, fire, storm, flood, earthquake, accidental collisions, accumulation of snow or ice, explosion, fault or failure of any plant or equipment which could not have been prevented by good industry practice, governmental restraint, act of parliament, other legislation, or bylaw.

If either of us cancels this agreement for any reason you will:

• be liable for any applicable disconnection and early termination fees, unless you are terminating because we have changed a service;
• still have to pay for all services that we provide to you up until the effective date of cancellation; 
• pay any recurring charges or charges that are subsequently billed that are owed by you until the effective date of cancellation or the end of your current billing period (whichever is later), unless you are terminating because we have changed a service; and
• be liable for any subsequent reconnection fees.

If you seek to cancel a service then we may also choose to stop the service immediately but still charge you for it until the end of your current billing period or until the effective date of cancellation (whichever is later).

In some circumstances, terminating one service may result in us terminating some or all other services being provided to you.

You agree that clauses 3, 10, 11, 13 and 14 will survive cancellation of this agreement.

11. Collecting and using information about you (Privacy)
You agree that we can collect information about you (such as your home address and phone number and evidence that you will be able to pay for our services) and the ways in which you are using the services. We will ask you for this information or we will obtain it from our records. You agree to ensure that all information you give to us is correct and complete.

You agree that we can use this information and can pass it on to our employees, contractors, agents, Kinect representatives and suppliers for a range of lawful purposes connected with our business operations, including:

• Providing you with services; or 
• Sending you bills; or 
• Checking your creditworthiness; or 
• Looking at ways in which we can improve our services and develop new services; and 
• (unless you have told us that you do not want to receive this information) keeping you informed about new services and changes to existing services.

You also agree that we can use information that we have collected about you to keep you informed about services offered by our carefully selected business partners, unless you have told us that you do not want to receive this information.

You agree that we may pass on your telephone number(s) to other network operators to enable you to make or receive calls.

You agree that we may monitor and/or record calls made between you and Kinect representatives to verify information or for the purpose of maintaining and improving the quality of our service.

You may ask to see information that we have about you and you may ask us to correct any errors. You can do this by contacting us on 0800 87 87 87.

12. Consumer Guarantees
You can exercise your rights under the Consumer Guarantees Act 1993 at any time unless you use, or have indicated you will use, our services for business purposes.

13. Our liability to you
To the extent allowable by law:

• our liability for any claim, damages, loss or expense that you incur as a result of anything we have done or not done is limited to $1,000 for any event, or series of related events, and $5,000 for all events occurring in any 12 month period of your agreement with us; and 
• we will not be liable for any loss of profits or any consequential, indirect or special damage, loss or injury of any kind suffered by you or any other person; and 
• we are not liable to you for any fault in or non-provision of services which is caused by an event beyond our reasonable control.

Apart from the warranties expressly given to you in this agreement, all other warranties, express or implied, are excluded (to the extent permitted by law).

14. Liability of third parties to you
The following people will not have any liability to you: .

• our employees, contractors, Independent Representatives and representatives; 
• other network operators who use our network and allow us to use their networks, and their employees, contractors and representatives; and 
• any person who provides any service which is part of our services, and their employees, contractors and representatives.

This clause is intended to confer a benefit which those third parties can enforce.

15. Changing these terms, charges or services to you
We can change these terms from time to time including the charges and services that we provide to you. If any change will have a material detrimental effect on you we will endeavour to give you at least one months’ notice of that change, but in any event, will give you at least 10 working days’ notice. We will inform you of any change by emailing, texting or writing to you, or by way of a bill insert or message, or by putting a notice in major daily newspapers or by providing relevant information on our website. If we change our frequency of billing to you or have a material price or service change we will advise you of that change by individual notice. Our latest terms and conditions are available at www.kinect.co.nz.

16. Sending invoices or notices to you
We will send your bills and any other notices to the latest postal address or (where we have agreed this with you) to the latest email address that you have given us. It is important you tell us straight away about any change to your postal or email address. You can do this by contacting us on 0800 87 87 87.

17. Other matters
These terms are to be interpreted in accordance with the laws of New Zealand. Any dispute regarding the provision of our services under these terms is to be determined by New Zealand Courts.

You must not assign your rights under this agreement. We can transfer our rights and obligations under this agreement to anyone else. We will notify you if we do so.

A delay in exercising any right is not a waiver of that right. A failure to exercise a right on any occasion does not prevent any subsequent exercise of that right.

18. Definitions
In these terms, “we” and “our” means Kinect, “you” means you, our customer and “services” means all the services that we provide to you.