Terms and Conditions - Net Enterprises Limited
1. About the Terms and Conditions
1.1 The following Terms and Conditions of Sale shall be deemed incorporated in and shall form part of all contracts involving products and services (herein after referred to as "goods" or "services") supplied by us. Please read them carefully. You use the service or goods under the T&Cs and our bound by them when you agree to be our customer.
1.2 Receipt of any order will be deemed to be acceptance by the buyer of these terms, notwithstanding anything that May be stated to the contrary in the buyer's orders.
1.3 If something in the T&Cs differs from what you were told by a staff member, the T&Cs in this document will apply unless we receive written confirmation from the staff member you spoke to that you were offered different terms.
1.4 If we don’t enforce our contract rights at any time, it doesn’t mean we have waived those rights, no matter how long we wait.
1.5 We might change the T&Cs from time to time. We’ll always try and let you know if the T&Cs are changed.
1.6 The most up to date version of the T&Cs (as loaded on our website) will always be the T&Cs that apply to your contract with us.
2.1 Unless otherwise stated all prices quoted are exclusive of Goods & Services Tax (GST), insurance, freight and handling charges in addition to the quoted prices. We reserve the right to revise its prices at any time prior to accepting on order. Receipt of order by us from you does not constitute acceptance by the us.
2.1 The prices quoted may be revised by us subsequent to accepting an order in the event of any occurrence affecting delivery caused by War, Government action, variation in Customs duties, increased shipping charges, higher foreign exchange costs and any other matter beyond the control of us. In that event you shall have the right to withdraw your order.
3. Paying for Goods and Services
3.1 Unless otherwise agreed in writing by us. Payment for goods and services supplied is to be made in accordance with the terms of trade agreed with you at the time of application for credit and in accordance with any subsequent arrangements entered into and confirmed in writing by the us.
3.2 Payment for goods or services supplied on a 'cash' basis is to be made before or at the time the goods or services are uplifted or dispatched.
3.3 If your account has a 60 day balance after the 20th of the month following due date will be placed on CASH ONLY terms until the account is bought within the approved trading terms, and at which time normal credit arrangements restored.
3.4 If your account has a 90 day balance after the 20th of the second month following the due date will be placed on NO FURTHER SUPPLY and all technical support for unpaid goods and services will be withdrawn until the account is cleared in full and normal trading conditions are restored.
3.5 You shall not be entitled to withhold payment or to make any deduction from the contract price without the prior written consent from us.
3.6 Receipt of cheque, bill of exchange or other negotiable instrument by us shall not constitute payment and you will remain liable for the full contract price until such cheque, bill of exchange or negotiable instrument is paid in full.
4. Default on paying for Goods and Services
4.1 All invoices not paid in full shall bear late payment fee of $15.00 inc GST if not paid within 20 days of the invoice date, and a re-occurring late fee of $15.00 inc GST each month that the invoice remains unpaid in full but without prejudice to our other rights and remedies in respect of your default in failing to make full payment on the due date.
4.2 You will upon demand pay to us all moneys (including but not limited to solicitor costs, Court costs and disbursements) incurred by us in recovering payment of any overdue amount.
4.3 Payments by you shall be applied first in the reduction of interest, liquidated damages and costs due pursuant to 4.1 and 4.2, the balance then being in reduction of any amounts due under 3.1 (other than any amount witheld as a result of a dispute).
5. Delivery of Goods
5.1 Goods are offered subject to availability and we shall not be responsible or liable in any way to you for delays or defaults or consequential loss or damage arising therefrom.
5.2 Delivery of goods shall be made to the place indicated in the order or if no place is indicated then delivery shall be made to your place of business as per current details of this location held by us. We will take all reasonable steps to make delivery at the time requested by you but shall not be responsible for delays or defaults or consequential loss or damage arising therefrom.
5.3 We reserve the right to deliver the goods by installments and each installment shall be deemed to be a separate order under the same provisions as the main order. Should we fail to deliver or make effective delivery of one or more installments this shall not entitle you to repudiate the main contract.
5.4 Delivery of 10% more or less in the quantity of the goods ordered by you shall constitute performance of any order, the amount under or over supplied to be deducted or charged for on a pro-rata basis.
5.5 No claim for any discrepancy of shortage in the goods delivered will be admitted unless it is made in writing to us within 48 hours of delivery.
6. Cancellation of Goods orders
In the event that you cancel any order subsequent to despatch by us to you (regardless of whether or not the order(s) has/have been delivered to you) we will credit you for the order value less the restock fee (as per clause 8) on return in saleable condition of the items ordered provided such returns are within 7 days of despatch. Freight charges will not be credited.
7. Goods returned for credit
7.1 Unless agreed in writing by the issuance of a Return Materials Authorisation (RMA) form by us. No goods will be accepted for credit after despatch, If we agree to accept the goods for credit, we will credit you the invoice value less the restock fee, less freight charges, on return of the goods ordered in saleable condition.
7.2 No goods will be accepted for credit after 30 days from date of the invoice on which such goods are described.
7.3 Goods returned must be in as new condition in the manufacturers (or supplier�s) original containers, unsoiled and undamaged.
7.4 Goods returned must be accompanied by number and date of supplying invoice and a valid RMA number which must be clearly displayed on the packages(s).
7.5 No goods will be accepted for credit where original packaging is not provided or any shrinkwrap packaging is broken or seals on disk packaging is broken or any part of goods originally supplied are missing.
7.6 Must not be a procured item.
8. Restocking of Goods fee
All goods ordered in error by you or goods you wish to return are subject to a restock fee. The restock fee is $20.00 or 3% of the original invoice value of the goods, whichever is the greater.
9. Risk and title to Goods
9.1 The goods shall remain our property so long as we are owed any money by you for those particular goods.
9.2 Risk in any goods supplied shall pass to you at the point of delivery.
9.3 Until payment in full is made in terms of clauses 3.1 and 3.2;
9.3.1 All goods supplied shall remain the our sole and absolute property.
9.3.2 You acknowledge that you retain possession of the goods in trust for us as the beneficial owner.
9.3.3 You shall store the goods on your premises in such a manner as to make them readily identifiable as belonging to us and shall display such identification as may from time to time be requested by us.
9.3.4 You will upon demand being made by notice in writing signed by us of some person appointed by it for such purpose and served or posted too you at your place may of business registered office or residential address, assign all proceeds of the sale to us.
9.3.5 Where we have reasonable cause to believe you have not strictly complied with the Terms and Conditions or that you have or will commit an act of Bankruptcy or (being a Company) has had a receiver appointed or is about to be appointed or is declared or becomes insolvent, the we may repossess any or all of the goods supplied and may at any time of the day or night enter by force if necessary upon any premises where such goods are reasonably thought to be stored. You shall indemnify us against any claims, costs and liabilities arising from the exercise of this right of entry.
10. Purchase of Goods and the Consumers Guarantees Act
10.1 Where we supply goods to you for the your use in a business you agrees that the Act does not apply.
10.2 Where we supply goods to you as a 'consumer' as defined in the Act for a non-business purpose the Act will apply and prevail over any contrary provision in these Terms and Conditions.
10.3 Where in any case you are a 'supplier' (as that term is defined in Section 2 of the Act) then;
10.3.1 you shall notify any 'consumer' prior to any sale of any defects or limitations in the goods and/or any common purpose for which the goods are not suitable.
10.3.2 you shall, to the extent that the consumer is acquiring goods for the purposes of a business contract out of the provisions of the Act to the extent permitted by law and shall not give or make any undertaking, assertion or representation to such customers in relation to the goods without the our prior approval in writing.
10.4 You acknowledge that we do not provide any Express Guarantees (as defined in the Act) other than those expressly confirmed by us in writing.
10.5 You agree to indemnify us against any liability of cost incurred by us under the Act as a result of any breach by you of your obligations contained in these Terms and conditions of sales. You agrees to notify us in writing as soon as is reasonable of any defects in the goods and the nature of such defects.
10.6 Whenever the Act does not apply to this contract we accept no liability for any claim in respect of the goods by you or any other person, including without limitation any claim relation to or arising from any conditions, warranties, descriptions, representations, conditions as to fitness or suitability for any purpose, tolerance to any conditions, merchantability or otherwise, whether express or implied by law. Trade custom or otherwise or any representations, warranties, conditions or agreement made by you which are not expressly confirmed by us in writing and you agree to indemnify us against any such claim.
11. Exclusion of Liability on Goods
11.1 We shall not be responsible for any damages whatsoever caused either to the products supplied or as a result of the malfunction of such products in the event that such products are fitted by unqualified tradesman of if such products be fitted in any untradesman like manner and or/if such products are in any way adapted to a use to which they are not specifically intended and/or if such products be added to or repaired using components not recommended or approved by the manufacturer of such products.
10.2 We will not accept responsibility for damage resulting from your misuse, tampering, unauthorised modification, improper transportation or storage, or accident. We shall not be liable for incidental or consequential damages arising from the sale or use of goods supplied by us. Such damages include, but are not limited to, costs of removal and reinstallation of goods costs of testing, loss of goodwill, loss of profits, or loss of use.
12. Guarantees and Conditions of Goods
12.1 Except as provided under the Consumer Guarantees Act or in sub-clause 12.2, no warranty or condition shall be implied herein against us by Statue, Common Law, Law Merchant or otherwise howsoever and no representation or express condition or warranty shall be binding on us, unless it be in writing and signed for on our behalf.
12.2 Where the goods or any of them are subject to an express warranty given by the manufacturer or the parties supplying the same to us in either case being a warranty upon which we may rely, then the terms of such express warranty shall be deemed to be incorporated herein but without creating any privity if contract between you and such manufacturers or suppliers to us and in such cases where a claim is made by you under such warranty, the judgement of the manufacturer or supplier as the case may be as to whether or not there has been a breach of the said warranty shall be final and binding upon us and you.
13. The Service
13.1 What we do
We will provide you with the service subject to the T&Cs and you complying with your responsibilities. We will use our best endeavours to provide you with an uninterrupted service. However, there are things that are not within our control that can interrupt the service. These include:
(a) Power Supply: Our service(s) require an uninterrupted power supply to operate. If the power supply at the address where you use the service(s) is interrupted, you will be unable to access the service(s).
(b) Problems with your equipment: If your personal equipment breaks down or is infected by an electronic risk such as a virus or a worm you will not be able to utilise the service.
(c) External Factors: Because our service(s) relies on many external factors, such as equipment that has been installed in third parties’ properties, atmospheric conditions and third party supplies to us, there may be times when one of those external factors lets us down. In these instances, there may be an interruption to our service(s) to you.
(d) You’re in breach: If you breach any of your responsibilities under the T&Cs, we may be entitled to suspend or cancel your ability to access the service(s). You should make sure you’re aware of what your responsibilities are under the T&Cs.
14. The Service Contract
14.1 How old do you have to be?
You must be at least 18 years old to enter into a contract with us unless your parent or guardian authorises the contract in writing.
14.2 When does your contract start?
You have a contract with us when you log on to the service for the first time or we have started provisioning your connection.
14.3 Can we transfer your contract?
Provided the service is still provided to you, we are allowed to transfer your contract to another person, firm or company at any time with your written consent. We can also sub-contract our obligations to someone else without notice. We will remain responsible to you for our obligations if we sub-contract.
15. Paying for the Service
15.1 When do you pay fees?
(a) Fees: Your fees may be paid by credit card, internet banking (and if you are a post-pay customer), automatic payment.
(b) Pre-pay: If you are a pre-pay customer, we will provide you the agreed amount of the service until the amount you have prepaid has been spent or has expired which ever happens first. It will then be up to you to recharge your account. You can recharge your account whenever you wish provided that if your log-in details have not been used for 12 months, they will be deleted.
(c) Post-pay: If you are a post-pay customer, we will provide you with the service so long as you continue to pay. You will pay on the day and in the amount we have agreed with you in your application but subject to the T&Cs.
15.2 Automatic Payments generally
(a) Payment Date: We will take the fees due on the dates we have agreed on with you in the contract.
(b) What you must do:It is your responsibility to:
(i) tell us if your credit card is expiring and supply the new credit card number and expiry date;
(i) make sure that you have enough money to pay the fees when they are due to be paid from your bank account or credit card;
(iii) not cancel a automatic payment for the payment of fees without our agreement.
15.3 What happens if you pay post-pay fees late?
(a) Automatic Payment: We will continue to attempt to take payments of fees from your account. We will do our best to contact you to let you know that a payment has been dishonoured to avoid you incurring further costs. If we can’t get in contact with you, we will not be responsible for any costs you incur through your bank. If a payment is dishonoured, we will pass any costs or loss that we are charged or incur on to you. These will become a debt owed by you to us.
(b) Dishonoured Payments Generally: If you are late in making a payment of fees (even if we hold a direct debit authority), we will charge you for any cost we incur in obtaining the payment from you. This will be administration costs at our end trying to contact you and sort out the failed payment. If it gets that far, the costs we will charge you include any costs charged to us by a debt collector or lawyer (on a lawyer to client basis) in trying to obtain payment from you. Late payment fees will also accrue on outstanding invoices not paid in full at the rate of $15.00 inc GST per month.
(c) Suspension: In addition to the rights we have in the clauses above this, we will suspend your ability to access the service until all payments (including any costs we’ve charged you) have been brought up to date. This means you will not be able to use the service during that time. You obligations to keep paying your fees will not stop during this period.
(d) Cancellation: We may simply decide to cancel our contract with you if you fail to make a payment when it is due. We don’t have to go through all of the steps above before we cancel – it’s up to use when we cancel for non-payment.
15.4 How does GST apply?
Your fees include GST. If the Government increases the rate of GST, your fees will increase to take into account the extra GST. We will notify you of any increase before it happens.
15.5 Can we increase fees?
We reserve the right to increase your fees. We will do our best to give you a months notice of any fee increase. So long as we’ve made reasonable attempts to give you notice, you agree that we may increase any debits taken from your account under a direct debit agreement. Fee increases will be shown on our website well before they take effect.
16. Your Responsibilities using the Service
16.1 Can you transfer your contract to someone else?
You are not allowed to transfer your contract to anyone else.
16.2 Your log-in details
We will provided you with your log-in details. You are responsible for protecting the security of your log-in details. You are responsible for all use of your log-in details even if it wasn’t actually you that used them. You have full responsibility for the use of your log-in details and the use of the service by someone who has used your log-in details to access the service as if it was you who had logged in and used the service.
16.3 What are your responsibilities?
(a) Pay fees even if you don’t use the service: It is up to you to use the service you are paying for. If you are a post-pay customer, paying your fees does not depend on how often you use the service. If you are a pre-pay customer, it’s up to you to make sure you use the service before any amounts you have pre-paid expire.
(b) Keep us informed: You must tell us about anything that affects your contract, and changes to your postal address, email address, contact numbers and nominated bank details.
(c) Your Promise: On the day your contract starts and each time you use the service, you promise that you will not use the service :
(i) in such a way that breaches the laws, rules or regulations of any New Zealand;
(ii) to transmit, receive, distribute, post, upload, email or store material (intentionally or unintentionally) or that:
A). infringes copyright or a trademark, trade secret or any other intellectual property of a third party;
B). is obscene, threatening, abusive or hateful or in any way harasses a third party;
C). commits a fraud of any kind (including but not limited to the operation of “chain letters”, “pyramid schemes” or “ponzi schemes”);
D). threatens or encourages bodily harm or destruction of property;
E). harms or attempts to harm a child or children in any way;
F). resells the services without our written consent; or
G). breaches a third party’s privacy;
(iii) to infringe a third party’s privacy by (including but not limited to) spying on a third party or attempting to obtain private information from that third party;
(iv) in such a way that (intentionally or unintentionally) adversely impacts on other people’s ability to use the service; or
(v) breach any acceptable use policy that we may publish on our website from time to time,
we will have the final say on whether you have breached our acceptable use policies.
(d) Indemnity: You will indemnify us against any claims that are made against us by a third party because you have misused the service. This indemnity will extend to costs we incur defending a claim of this sort (on a solicitor to client basis).
(e) Hosting Partners and our equipment: Where you are a hosting partner, you acknowledge and agree that:
(i) you will be provided with a free data quota or commission in consideration for you allowing us to place our equipment at your property;
(ii) you will pay our standard rate for data for every gigabyte that you exceed your free data quota as a post pay customer;
(iii) the equipment we place at your property will always be our property. You will not obtain any ownership rights to our equipment at any time;
(iv) you will allow and ensure your power supply to available at all times to be utilised for the purposes of the operation of our equipment. If you become aware that your power supply may be disconnected or compromised in any way, you will notify us immediately and allow us to take whatever action is necessary to ensure continued power supply (including but not limited to making payment to your electricity supplier). You indemnify us against any costs we incur in taking this action;
(v) you will allow us unrestricted access to your property to inspect, maintain and replace our equipment. We will do our best to give you reasonable notice when we intend visiting your property – however, in an emergency we will have no option but to visit your property without notice;
(vi) if you notice that our equipment is damaged or has disappeared, you will let us know as soon as possible;
(vii) if your contract is cancelled for any
reason or your cease to be a hosting partner, you will allow us access to your property to retrieve our equipment and will give us a reasonable period of time to do that. For the avoidance of doubt, you agree that a reasonable period of time is 1 month from the date of cancellation (or hosting partner cancellation) or when we have located another hosting partner, whichever happens later; and
(viii) you will be liable to us for any damage you intentionally cause to our equipment.
16.4 What happens if you break your promise?
(a) If you breach the T&Cs or breach your promise to us, we:
(i) Warning: may give you a warning about your behaviour. The warning will include a statement that you run the risk of having your contract terminated if you continue to behave in the same way;
(ii) Suspend: might suspend your ability to access the service while we consider any final options; or
(iii) Cancel: can terminate your contract immediately.
(b) If we decide that you have broken the law using the service, we reserve the right to pass any and all relevant information on to the relevant authorities. The promise we have made to you regarding your privacy will not apply in this regard.
17. Cancelling Your Service Contract
17.1 By you: If you wish to cancel your contract:
(a) and you are a pre-pay customer, simply stop logging on to the service. Any amounts you have pre-paid to use the service will not be refundable and the
service will expire when the pre-paid amount you purchased has expired. Your log-in details may be deleted if they have not been used for 12 months;
(b) and you are a post-pay customer on no term contract, you must provide us with a minimum of 1 month notice in writing. It is important that you keep a record of your request to cancel your contract.You must also return all of our equipment at your cost within 7 working days of the service termination date. we reserve the right to invoice you for equipment not returned and/or costs we incur to retrieve our equipment;
(c) and you are a customer on a 12,24,36,or 48 month contract, you must provide us with a minimum of 1 month notice in writing and pay the early termination fee immediately which is $399 inc GST. It is important that you keep a record of your request to cancel your contract.You must also return all of our equipment at your cost within 7 working days of the service termination date, we reserve the right to invoice you for equipment not returned and/or costs we incur to retrieve our equipment;
17.2 By us: Unless we cancel your contract under clause 16.4(a)(iii), we can only cancel your contract:
(a) if you are a pre-pay customer, by notice which will expire 1 month after the date of the notice or once your current pre-paid amount has expired or been spent using the service whichever happens first;
(b) if you are a post-pay customer, by giving you 1 month notice.
17.3 No Compensation: We don’t have to state a reason for cancelling your contract and will not have to pay you any compensation if we do cancel (including if we cancel under clause 5.4(a)(iii)).
18. Our Liability to You supplying the Service
18.1 Exclusion of Liability: To the full extent allowed by law, we exclude all liability from us providing the service to you or failing to provide the service to you if that
is the case.
18.2 Unforeseen Issues: We will not be liable to you if we are unable to provide the service to you because of something that is outside our reasonable control.
18.3 Consumer Guarantees Act: Nothing in the T&Cs cancels our obligations to you under the Consumer Guarantees Act 1993. However, if you use the service for business purposes, you acknowledge that the Consumer Guarantees Act 1993 does not apply.
18.4 Limitation of Liability: Where we are liable to you for any failure on our part that liability will at all times be limited to the fees you have paid us. In no circumstances will we be liable for indirect, consequential or special losses you suffer. This includes, but is not limited to, loss of income or fees paid to another supplier.
19.1 Personal Information: As part of your contract with us, we may have access to personal information about you. This information may include your bank account details. We will only use, disclose or copy your information for the purposes of managing your contract. We will keep your personal information secure. You will be entitled to view the details of all personal information we hold about you at any time.
19.2 Storing of Information: As part of ensuring you comply with your responsibilities, we will also be able to access the full history of your use of the service, including what websites you have visited, what you have downloaded, what you have submitted, blogged or posted and what you have transmitted to third parties. This information may be stored for certain periods of time in our discretion. We will only use, disclose or copy this information if we deem it necessary for the protection of you or a third party due to a law having been broken.
20. ID Check, Credit References and Provision of Related Services
20.1 You authorise us to check your identity (by obtaining a Driver Check from NZTA), and your credit status with any credit reference agency as we see fit from time to time and to pass on credit information about you to any credit reference agency at any time. If you are not satisfied with the information about you which we receive from any credit reference agency, you must deal directly with the credit reference agency.
20.2 If you do not give us the names of any credit referees when we ask for them, or we are dissatisfied with the information regarding your credit status, we can decline your application or terminate your connection to our network.
20.3 We may ask for a security deposit and/or impose other conditions upon approving your application. These may include, but are not limited to, a mandatory payment method or credit limit.
20.4 When you ask for any additional Services (eg. upgrade in your monthly plan), we can ask for further credit referee(s) and/or a security deposit for that service and may also impose a credit limit.
20.5 We may decline your application (and/or any request for additional Services) or provide a restricted Service at our discretion and we do not have to disclose our credit criteria or the reasons for our decision.
If you wish to raise a genuine dispute regarding an Invoice you must do so in writing within 20 days of the date of the Invoice. We will consider any issues raised in good faith and will promptly advise you of any resolution.
22. Applicable Law
The contract and the T&Cs are interpreted in accordance with the laws of New Zealand. If we have a disagreement, New Zealand laws apply to that disagreement and if we get that far, any court proceedings will need to be filed in New Zealand.
23. What the words in the contract and T&Cs mean
Net Enterprises, we, Net Enterprises Limited (New Zealand company number 3307688)
you, your A customer of Net Enterprises
contract This is between Net Enterprises and you, under which you will become a customer of Net Enterprises. The contract includes the T&Cs, the on-line application you filled in and all information you have given to us together with any other terms we have agreed with you
fees The fees that you pay to Net Enterprises during your contract for the supply of the service
hosting partner A customer who also agrees to our network transmitting equipment being installed at the customer’s property. A hosting partner will have special terms added to their contract as agreed with the hosting partner or otherwise set out in the T&Cs
log-in details The account name and password we provide you to enable you to access the service including any changes to the password that you make after the first password has been given to you
notice Written advice that an event is going to happen or has happened. A notice must be delivered to the correct address of the person receiving it, faxed to them or emailed to them. A person giving a notice must ensure that the notice has been received
pre-pay customer A customer who pays in advance for the service either by topping up with a credit card or by purchasing vouchers
post-pay customer A customer who pays in arrears for the service either by credit card, automatic payment, direct debit, customer initiated payment.
our website www.netenterprises.co.nz
service Our services provided to customers subject to the T&Cs including wireless internet service and any other service we offer to customers.
personal equipment The equipment that you use to access the service including but not limited to a computer, note book, smartphone (eg iPhone), tablet (eg iPad) and any ancillary equipment used to enable the personal equipment to access the service.
staff Employees and agents of Net Enterprises or, if the context applies, any other organisation
T&Cs These terms and conditions together with any amendments made to them