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1. Definitions

1.1 These terms and conditions (Terms and Conditions) apply to the use by you, the customer (you or your), of the services that Zintel Communications Ltd (NZBN 9429035542049 (we, us or our) provides to you from time to time (Services). Specific terms and conditions may apply in relation to the Services where agreed between us in writing (Special Terms).

1.2 These Terms and Conditions and any Special Terms comprise the entire agreement between you and us (Agreement), and replace any previous agreement between you and us, and/or terms and conditions previously provided to you. In the case of any inconsistency between these Terms and Conditions and the Special Terms, the Special Terms will, in relation to the specified services, prevail to the extent of any inconsistency.

2. Term

2.1.   The Agreement commences on the earlier of the date we first provide services to you and any commencement date specified in   any Special Terms and continues until termination of the Agreement in accordance with these Terms and Conditions as modified by any Special Terms (Term).

3. Provision of services

3.1.We will provide the Services to you with due care and skill and in accordance with generally accepted industry practice.

3.2 .We may subcontract the provision of all or any of the Services to another party.

3.3. Where a fault occurs, we will use reasonable endeavours to ensure it is remedied as quickly as reasonably possible after we become aware of any fault.

4. Your responsibilities

4.1 You agree that you will:

4.1.1 Ensure that all uses of the Services are lawful and do not interfere with the use of our services by any other person;

4.1.2 Comply with the Agreement and any reasonable restrictions imposed or instructions or directions given by us relating to your use of the Services;

4.1.3 Ensure that all information you provide to us is correct and keep us informed of any changes to any of your information as soon as possible; and

4.1.4 Use us as your exclusive provider in respect of the Services during the Term.

4.2 You agree that you will not:

4.2.1 Resell the Services to any other party;

4.2.2 Use the Services or permit the Services to be used in any way which:
(a) Breaks any laws or infringes anyone’s legal rights;
(b) Could interfere with or damage our network, any other operator’s network, or another customer’s enjoyment of our services;
(c) Is illegal, malicious, obscene or offensive;
(d) Could introduce anything (including any virus) that may harm or interfere with our or any other party’s equipment or software;
(e) Use the Services to spam, mail bomb, upload or publish any offensive or unlawful material, harvest information about others, create a false identity, transmit or upload material which breaches any third party right (including any intellectual property right), discriminates against any person or group, is false, inaccurate, or misleading or deceptive or for any similar activity; or
(f) Use the Services in a way which in our opinion is improper, unreasonable, inappropriate or harmful.

5. Suspension of services

5.1 You acknowledge that we may suspend or restrict your access to the Services at any time when we consider:

5.1.1 It is necessary to protect our own network or that of any other party; or

5.1.2 You have breached the Agreement in any way.

6. Variation of Services

6.1 If required by law or if it is necessary or desirable to do so for operational reasons, we may change any phone number, electronic address or code allocated to you.
6.2 We may end the availability of any of the Services or any parts of the Services at any time if they are no longer viable, if we or any service provider are unable to provide them, withdrawing them from availability, or replacing them.
6.3 We will endeavour to provide you with at least 30 days’ notice of any action we intend to take pursuant to clauses 6.1 and 6.2, however, this may not always be possible.

7. Charges

7.1 You are liable to pay:

7.1.1 Any rates or charges (Charges) specified in the Special Terms or otherwise agreed in writing between us;

7.1.2 Any additional amounts incurred by us for services you use which originate from a third party service provider (i.e. directory assistance services, 0900 calls) but which are not detailed in the Special Terms or otherwise agreed in writing between us;

7.1.3 All amounts payable under the Agreement where we provide the Services to another party on your request;

7.1.4 Any costs, charges and fees associated with fraudulent usage of the Services or illegal use or hacking of your Private Branch Exchange or “PBX”.

7.2 The Charges will apply from the date the Services are first provided to you.

7.3 Any amounts payable in relation to the Agreement are in New Zealand dollars unless stated otherwise and are exclusive of Goods and Services Tax, if applicable, which is payable in addition.

7.4 Due to the nature of our business, some of the Charges (for example, those Charges ultimately payable by us to a third party service provider for certain of the Services), will continue to be payable during any suspension of the Services.

7.5 A reconnection fee of $50.00 will apply if, following a suspension of the Services due to your breach of the Agreement, we recommence providing the Services to you.

7.6 We may charge you on a time and materials basis for diagnosing and/or fixing faults reported or experienced by you which are not attributable to our provision of the Services.

7.7 Where you do not meet your responsibilities to us under the Agreement, we may require you to pay any costs and expenses, including legal fees, that we incur in enforcing or exercising our legal rights in relation to those responsibilities.

7.8 We will not be liable for any termination fees or unpaid amounts due under any agreement between you and any third party service provider, whether payable prior to or following commencement of the Agreement.

7.9 We may assign any amounts you owe to us to any other party.

8. Invoices

8.1 We will invoice you on a monthly basis. You must pay the full amount stated on each invoice by the 20th day of the month following the date of the invoice, without any deduction, setoff, or counterclaim.

8.2 If you do not pay an invoice by the due date, we may charge you interest on the unpaid balance at a rate of 1.5% per month.

8.3 If you believe that a mistake has been made in an invoice, you must notify us in writing at least 14 days before the due date for payment of that invoice, otherwise the full amount of the invoice is payable. We will investigate your query and advise you promptly as to whether an adjustment is required. If no adjustment is required and the due date for payment has passed, you will pay the outstanding amount, and any interest and/or reconnection fee that we may charge in accordance with the Agreement.

9. Intellectual property

9.1 You acknowledge that we and/or others may have intellectual property rights in or relating to the Services we provide to you (including any improvements or changes to the Services) including, without limitation, registered or unregistered patent, copyright, trade mark, trade secrets, confidential information and design rights. All of these rights, including all rights in any modifications, improvements or adaptations, are retained by us when we provide the Services to you. You are licensed by us to use such of the intellectual property in or relating to the Services, on a non-exclusive and non-transferable basis for the Term, for the purposes, and in accordance with the terms, of the Agreement.

10. Confidential information

10.1 You may not use or disclose to any third party any information received from us in connection with the Agreement, our business or affairs, or any Service that is by its nature, or would reasonably be expected to be, confidential including, without limitation, service and pricing information and the terms of the Agreement, except where required by law, for the purposes of the Agreement, specifically authorised by us in writing, or public knowledge (other than where it becomes public knowledge as a result of a breach of any confidentiality obligation).

11. Privacy

11.1 In providing the Services to you, we may collect Personal Information (as defined in the Privacy Act 1993) about you and your use of the Services. You agree that we, or third parties authorised by us, may collect, store, use and disclose that Personal Information for the purposes of providing the Services to you and any other purposes related to the provision of the Services to you, and we may use and/or disclose your Personal Information to conduct credit checks, inform you of new services, and inform you of changes to the Services.

11.2 You may at any time make a request to access any of your Personal Information that we hold and request correction of any mistakes.

11.3 You acknowledge that we cannot guarantee the confidentiality or privacy of any information transmitted via the Services.

11.4 You acknowledge that we may intercept any communications for the purposes of complying with the Department of InternalAffairs’ Digital Child Exploitation Filtering System, or for the purposes of complying with any lawful request or direction from any governmental, regulatory, law enforcement or similar agency.

11.5 You acknowledge that we may monitor and/or record calls made between you and us for training purposes and for the purposes of maintaining and improving the quality of our services.

12. Termination of agreement

12.1 We may terminate the Agreement with immediate effect if you:

12.1.1 Commit a breach of the Agreement that is not capable of remedy or, if capable of remedy, is not remedied within 10 days from the date written notice is provided by us to you specifying the default;

12.1.2 Cease or threaten to cease to carry on business, are unable or deemed unable to pay your debts as they fall due, enter into a compromise or arrangement with your creditors, are declared bankrupt, go into liquidation or an administrator, receiver or equivalent is appointed in respect of part or all of your assets or undertaking.

12.2 Except during any term specified in any Special Terms, either party may terminate the Agreement, and you may request the port or reassignment of any of the Services to another service provider, by providing the other party with 30 days’ written notice at any time and for any reason. You will remain liable to pay the Charges until the end of the 30 day notice period.

12.3 Where you terminate the Agreement during any Term specified in any Special Terms, you will pay any Early Termination Charges that are specified in those Special Terms.

12.4 Following termination of the Agreement, all Charges and other payments outstanding or incurred prior to the date of termination will become immediately due and payable.

12.5 If you do not make a request to port or reassign any Services to another service provider, following termination of this Agreement for any reason we may provide the Services to another customer including, for example, making any phone number allocated to you available to another customer.

12.6 The termination of the Agreement will be without prejudice to the rights of the parties accrued up to the date of termination.

13. Disputes

13.1 If any dispute arises out of the Agreement, neither party is to commence any proceedings relating to the dispute (except where urgent interlocutory relief is sought) unless the parties have first endeavoured to resolve the dispute in good faith by discussion, negotiation, or other informal means.

13.2 If the dispute is not resolved in accordance with clause
13.1 within 30 days, the parties are free to pursue legal remedies. Clause 13.1 does not apply to proceedings commenced by us for the recovery of money payable to us under the Agreement.

14. Limitation of liability

14.1 We will use reasonable endeavours to provide the Services reliably and consistently to you, however, we cannot guarantee that the Services will be continuous or fault-free. Due to the nature of the Services and because we rely on other parties to help us provide the Services to you, you acknowledge that there are matters which may be outside our control which may affect the availability or quality of the Services, for example, power outages, the performance or speed of your Internet connection, the particular modem and computer technology you are using, and the provision of the Services by third party service providers.

14.2 We will not be liable to you for any losses suffered by you as a result of:

14.2.1 Interruption, delay or failure of the Services caused, in whole or part, by any matter or event outside our control;

14.2.2 Suspension of the Services for breach of the Agreement;

14.2.3 Your use of the Services other than in accordance with the Agreement; or

14.2.4 Any viruses or other harmful code downloaded or activated in the course of receiving or using the Services.

14.3 We will not be liable to you under any head of legal liability including (without limitation) under any statute or the law of tort (including negligence), contract or otherwise for any economic loss, loss of profits or savings, lost business or missed opportunities, wasted expenditure, or for any indirect or consequential loss or damage, arising out of or in connection with the performance or non-performance of any of our obligations under the Agreement.

14.4 Our aggregate liability to you all other parties under or in relation to the Agreement will be limited to the total Charges actually paid by you for the Services during the 3 month period immediately preceding any claim.

14.5 You agree to keep us indemnified against all claims, actions, losses and expenses of any nature, including legal fees, which we may suffer or incur or for which we may become liable in respect of or arising out of the Agreement or the use of the Services by you or any other party.

14.6 The parties acknowledge that the Services are provided for a business purpose and the parties are in trade, and agree that, accordingly, the provisions of the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 do not apply to the Agreement to the maximum extent possible. The parties agree that it is fair and reasonable for the parties to be bound by this clause 14.6.

14.7 Apart from the warranties expressly given to you in the Agreement, all other warranties, express or implied, are excluded to the maximum extent permitted by law.

15. Variation

15.1 We may vary the Agreement at any time by giving you 30 days’ written notice, or by publishing the intended variations on our website 30 days before they are to take effect, or by agreeing the variation with you in writing and signed by both parties.

16. General

16.1 No Assignment: You may not assign any rights under the Agreement except with our prior written consent. A change of effective control in your ownership or management will be deemed to be an assignment. We may assign our rights and obligations under the Agreement without seeking your prior consent.

16.2 Severability: If any part of the Agreement is held to be invalid, illegal or unenforceable, that part will be severed and the remainder of the Agreement will remain in full force and effect.

16.3 Notices: All notices under the Agreement will be given in writing and sent by email, registered mail, facsimile transmission or delivered by hand. Notices will be addressed to the addresses set out in the Special Terms, or any other addresses as may be notified by either party to the other from time to time, or if there are no such addresses for a party to their usual business address. It is your responsibility to ensure that you keep us informed of any changes to your address details. An email will be deemed to have been received when the sender of the email receives email confirmation from the intended recipient that the email has been received. All other forms of notice will be deemed to have been received two days after they have been sent.

16.4 Contracts Privity: Third parties may take the benefits of rights expressed to be for their benefit in accordance with the Contracts (Privity) Act 1982.

16.5 No Waiver: A failure or delay on our part to exercise any right or power under the Agreement will not be a waiver of that right or power, and will not prevent us from exercising that right or power in the future.

16.6 Governing Law: The Agreement is governed by New Zealand law and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.