Choice Broadband Standard Terms and Conditions for Satellite and Rural Broadband Internet Services

Version [ 2.0 ] – 9 October 2019

 

Introduction

IPSTAR New Zealand Limited [NZCN 1467711] trading as ‘Choice Broadband’ (“CHOICE”, “our”, “we”, “us”) has prepared a Standard Form of Agreement for the provision of its satellite and rural broadband internet services (“Agreement”). The Agreement includes the terms and conditions contained in this document, together with any specific terms and conditions contained or referred to in a Schedule to this document, an approved Application Form, the Service Summary, the CHOICE Acceptable Use Policy and the CHOICE Privacy Policy. Please read this Agreement carefully before submitting any Application Form to us for any Service. Please note meanings given to capitalised terms in this Agreement, as well as interpretation provisions of this Agreement,  can be found in clause 24 of this document. A copy of the Agreement is available online to approved Customers via the MyCHOICE Portal, and it is also available at http://www.choicebroadband.co.nz.

 

Important Notes

Ownership and Use of CPE: Certain equipment will need to be installed at Your premises to provide access to the Service.  Typically this will be a modem and outdoor antenna equipment (the “Customer Premises Equipment” or “CPE”).  Any existing CPE you own may not be suitable for use with the Service.  You will either need to purchase required CPE from Us or sometimes, We may agree to lease the CPE to you as part of the Services.  Where We lease the CPE to You, the CPE remains Our sole property, is provided solely for use with the Service and cannot be used for any other internet broadband services.

No guarantee of availability or quality: The Services are only available to customers who have adequate signal levels.  Interference from hills, trees or buildings may mean the Services are not available at your address.  Although our installers will make an assessment prior to installation, CHOICE cannot guarantee what the actual service quality will be until the Service is connected.  If our installer determines that the Services cannot be provided at your address, We will refund the cost of any CPE you have purchased from Us and that is returned to Us in good condition.  You will still need to pay Our installer’s reasonable time and travel costs however, in relation to the cancelled installation.

The provision of the Service is also subject to CHOICE obtaining a consumer credit report about You which is satisfactory to CHOICE.

Term Plans and Early Termination Costs:  You may agree to purchase Services for an agreed term (such as 24 months) or on a month by month basis.  Services that have an agreed term may have Charges that are lower than those for Services with a monthly term or We may supply required CPE as part of the Services.  This is in recognition of Your commitment to purchase the Services for the agreed minimum term.  If You end a Service, or if CHOICE terminates the Agreement because of your default, before the end of an agreed term, early termination charges will apply.  These costs are further described in clause 13 of this Agreement and the Service Summary.

Variation to Agreement: CHOICE may vary this Agreement, at any time, subject to our obligations at law and as set out in this Agreement. Where we do so during an agreed term, you may have the rights to end the Agreement early (and without paying early termination charges).  This is detailed in clause 15.1

 

Terms and Conditions

1. Applications for the Service

1.1 Without limiting any other provision of this Agreement, this Agreement, and the supply by CHOICE of the Services to You shall be subject to:

(a) CHOICE’s approval of Your Application Form;
(b) you having adequate signal levels at Your address; and
(c) successful installation and configuration of the CPE at the premises nominated by You in the Application Form.

1.2 By submitting an Application Form to CHOICE for a Service, You agree and acknowledge, that without limiting CHOICE’s rights of termination otherwise specified in this Agreement or at law, CHOICE reserves the right to immediately, and without advance notice to You, withdraw Your access to the Service if:

(a) CHOICE discovers that You have provided false or inaccurate information on an Application Form;
(b) CHOICE reasonably suspects illegal conduct in relation to the use of the Service by You or any person using the Service at Your premises;
(c) there is a threat or risk to the security of a Service or integrity of the CHOICE network or the Satellite Network;
(d) any Supplier discontinues or suspends the supply of any goods or services necessary for CHOICE to provide the Service to You; or
(e) it is necessary in order to comply with any law.

1.3 You agree that as part of assessing Your Application, CHOICE can check Your identity, including by checking Your driver’s license or passport details with the relevant government department or authority and check Your credit status with any credit reference agency. CHOICE may also conduct further credit checks during the term of this Agreement. CHOICE may pass on credit information about You to any credit reference agency at any time.

1.4 If CHOICE is not satisfied with the information provided by the credit reference agency, it may:

(a) decline your application for the Services;
(b) provide restricted Services; or
(c) ask for a security deposit and/or impose other conditions on your Service (including a mandatory payment method or credit limit).
Subject to any legal requirement under the Privacy Act 1988 to disclose personal information to You, CHOICE does not have to disclose its credit criteria or the reasons for its decision to You. If You are not satisfied with the information provided by the credit reference agency, You may contact the credit reference agency directly.

1.5 By submitting an Application Form to CHOICE, You acknowledge and agree that:

(a) the acceptance or rejection of an Application Form that You submit to CHOICE in respect of goods or services described in this Agreement is subject to any criteria set out in this Agreement; and
(b) if CHOICE approves your application, in order to access the Services, You will be required to accommodate equipment on Your premises necessary to access the Service, including the CPE.
(c) Any CPE owned by CHOICE of a Supplier is solely for use with the Service and cannot be used for any other satellite or broadband Internet services.

1.6 If You transition from services provided by another telecommunications supplier to Our Service, You agree and acknowledge that You remain liable for all amounts (if any) owing to the other telecommunications supplier or otherwise payable by You (including any disconnection or early termination fees) as a result of Your transition from any services and/or termination of any agreement with Your other supplier.

2. Service connection and premises access requirements

2.1 CHOICE will endeavour to connect the Service at the premises You designate in an approved Application Form within thirty (30) days of CHOICE approving Your Application Form.

2.2 You agree to cooperate with CHOICE so as to enable such connection and installation including:

(a) granting CHOICE and any Supplier access to Your premises for installation, and for maintenance or as reasonably required by CHOICE in order to facilitate the supply of the Services;
(b) providing true and complete answers to any reasonable questions asked by any CHOICE personnel and informing them of any issue which may affect or prevent the successful installation, positioning and testing of any CPE in connection with the goods and services supplied under this Agreement on their first visit to Your premises (and this includes an obligation on You to tell them anything which may prevent any access to any part of the relevant site or premises); and
(c) ensuring that You are available at the site or premises where the CPE is to be delivered (and give any access required) on the dates and at the times agreed with the relevant CHOICE personnel or Supplier.

2.3 You agree to provide reasonable access to the CPE and Your premises and a suitable and safe working environment for CHOICE, Our Suppliers and any of Our or their representatives, agents, and installers. Without limiting the foregoing provisions, You must provide, or procure the provision of, all necessary consents and rights of access (including from any owner of premises you lease) necessary for CHOICE, any Supplier or any of their personnel to safely and in a timely manner enter and do anything necessary in respect of that site or premises in order to facilitate the supply of the Services, including:

(a) supplying any goods or services specified in this Agreement or which are ancillary to those goods and services;
(b) delivering, installing, connecting, inspecting, repositioning, modifying, maintaining, replacing, repairing, servicing, disconnecting, or removing all or part of the CPE, any goods, services, network or equipment or any other items owned by CHOICE or any Supplier; and/or
(c) exercising any of Our rights or performing any of Our obligations under and in accordance with this Agreement,
during the term of this Agreement and for so long after the period of the expiry or termination of this Agreement as is necessary for Us to exercise Our rights and perform Our obligations under this Agreement. At the request of CHOICE, you must provide to CHOICE documentary evidence of the approvals and rights of access referred to in this clause.

2.4 You will be contacted in advance in order to arrange a time for Our installers to install the CPE at Your premises. If You are not available to grant access to the premises to Our installers at the pre-arranged time, You may notify us of someone else (at least 18 years of age) who You authorise to make decisions about the installation on your behalf. If You and any such nominee are not available to provide access to Your premises at the pre-arranged time, You agree to pay a ‘missed appointment’ fee of $460 to cover the installer’s reasonable time and travel costs.

2.5 The installation costs provided to you are estimates based on your description of the premises and our assessment of the required work. Actual charges may differ. If due to your specific requirements (for example, environmental factors, materials used in the construction of your premises, required location of the CPE), the quote provided to you on-site by the installer exceeds the estimate provided to You, You have the right to refuse installation. In such case however, a one-off fee of $460 will apply to cover the installer’s reasonable costs of time and travel.

2.6 In order to provide the Service to You and install the CPE, We may need to disconnect or disable any equipment that may have been connected or installed by other internet service providers.

2.7 CHOICE may choose not to connect the Service to Your premises for any reason, including where CHOICE or any Supplier reasonably considers it uneconomic or unsafe to do so. CHOICE may exercise this right at any time, even after CHOICE has approved Your Application Form for the Service.

3. Service quality, availability and technical support

3.1 CHOICE will supply the Service to You on the terms of this Agreement and from the date Your connection to the Service is completed. CHOICE will provide the Services with reasonable care and skill and use reasonable efforts to supply You with the Services that meet agreed specifications 24 hours per day, 7 days per week but:

(a) broadband speeds are provided on a ‘best endeavours’ basis and may be affected by factors such as the number of users online at Your premises, Network loading, the applications and websites you access, interference from electrical devices or other environmental conditions; and
(b) does not warrant the Services will be supplied on a fault-free or uninterrupted basis.

3.2 Except in respect of any warranties, guarantees or other conditions which are implied pursuant to legislation which cannot be excluded, CHOICE does not:

(a) make any representations or warranties as to the quality, suitability or fitness for purpose of the Services; and
(b) warrant or represent that the Service will be suitable for any particular use or application and You are responsible for satisfying Yourself as to whether Your intended applications will be suitable for use with the Service.

3.3 If a Service is unavailable for access by You due to maintenance or malfunction, CHOICE shall use its best endeavours to notify You via any of the contact details specified by You in the Application Form or via the MyCHOICE Portal.

3.4 CHOICE shall not be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.

3.5 If a delay or failure of CHOICE to perform its obligations is caused or anticipated due to Force Majeure, the performance of CHOICE’s obligations hereunder will be suspended.

3.6 If a delay or failure by CHOICE to perform its obligations due to Force Majeure exceeds thirty (30) days, either You or CHOICE may immediately terminate the Agreement by providing notice in writing to the other.

3.7 Technical support is available. Please refer to clause 7. However, CHOICE has no responsibility to provide any computer equipment, electricity connection or training in the use of the Services or CPE either pursuant to this Agreement or otherwise.

3.8 CHOICE is not responsible for any event that is caused or contributed by:

(a) any incompatibility between any networks, systems, or facilities of CHOICE or a Supplier or of any third party or which You own or which You use in connection with the Services; or
(b) any wilful, negligent or wrongful act or omission made by You or any other end user of CHOICE, including any breach by You of any of Your obligations under this Agreement and any non-compliance by You or any other end user with any information or requirements provided by CHOICE or a Supplier in relation to the Services or the CPE.

3.9 CHOICE will not be liable for the adjustment of, or tampering or interference with, any CPE carried out by You, or on Your behalf that is not authorised by CHOICE, and You shall indemnify and hold CHOICE and its personnel from and against any and all loss or damage that may be suffered by any of them arising from or arising in connection with Your failure to comply with this clause.

4. Supply and Use of the CPE

4.1 Where We agree that You may supply any CPE for use with the Service, You warrant that You own that CPE and are entitled to deal with it. You authorise CHOICE and its Suppliers to re-configure that CPE to access the Service.

4.2 CPE supplied by CHOICE remains the property of CHOICE or its Suppliers unless agreed otherwise in writing. Where CHOICE or a supplier owns CPE, You grant CHOICE a security interest in that CPE and agree that CHOICE may register a security interest in that CPE on the personal property securities register. On request, You will promptly provide all information necessary to enable CHOICE to perfect its security interest. You waive all rights under and agree that nothing in sections 114(1)(a), 116, 117, 119, 120(2), 121, 125, 127, 129, 131, 133 and 148 of the Personal Property Securities Act 1999 shall apply to the security granted under this clause.

4.3 In addition to any rights You may have under the Consumer Guarantees Act 1993, CHOICE:

(a) warrants that CPE supplied by CHOICE or a Supplier as part of the Agreement will operate in accordance with any published specifications for two years from the date of supply or, where CHOICE leases the CPE to You, for the term of this Agreement;
(b) will, at its election, repair or replace or arrange for the repair of replacement of CPE that does not comply with the warranty in sub-clause (a) within a reasonable time of being notified of the same. CHOICE shall have no obligation to repair or replace CPE however, to the extent any fault or damage is caused by:

(i) any breach of this Agreement by You;
(ii) other equipment not supplied by CHOICE; or
(iii) accidental damage to or wilful or negligent misuse or operation of the CPE by You or persons other than CHOICE and its Suppliers.

4.4 You must provide a suitable operating environment for the CPE and take reasonable precautions to:

(a) ensure that it remains free from radio, magnetic or electrical interference or power fluctuations and, where applicable that any line of sight for satellite or wireless CPE does not become obstructed (for example, by new structures or tree growth); and
(b) protect the CPE from theft or other loss or damage.

4.5 You agree to comply with all guides, manuals, recommendations and directions pertaining to the access and use of the Services and CPE given to You by CHOICE from time to time including, but not limited to, those directions specified in the Acceptable Use Policy. If You connect any CPE or other equipment to the Service that is not supplied by Us, You must ensure that all such equipment:

(a) has all necessary regulatory approvals;
(b) complies with all applicable regulatory standards;
(c) is capable of operating with the relevant Service;
(d) does not damage, interfere with or cause any deterioration in the operation of the Service or any other part of Our Network and associated facilities or other services a Supplier may be supplying to any other third party, and should any of the requirements above not be met then, without limiting any other provision of this Agreement, CHOICE may require You to stop using and disconnect the offending equipment until these requirements are met.

4.6 Where We or Our Suppliers need to visit Your premises to undertake any repair or other work to remedy a fault with the Service or CPE supplied by CHOICE and the fault is caused by any breach of this Agreement by You, any act or omission by You or other persons outside of Our control, or by CPE or other equipment CHOICE has not supplied, We may charge You for the cost of remedying the fault (including time and travel costs for Our technician).

5. Your access to and use of the Services

5.1 The Services include plans with different monthly data allowances. You should select the monthly data allowance most appropriate for your expected use of the Services. Any unused portion of Your monthly data allowance expires at the end of the month. The MyCHOICE Portal gives You access to useage information. If You exceed Your monthly data allowance, no extra useage fees will be charged but CHOICE will reduce the speed of the Services for the rest of that month. If You do not wish to have the speed reduced once your monthly data allowance is reached, You can purchase additional data packs for the rest of that month using the MyCHOICE Portal.

5.2 You may upgrade to another plan with a higher monthly data allowance at any time. If Your Service plan is subject to a minimum term, You may downgrade to another plan with a lower monthly data allowance once during the minimum term. If no minimum term applies, You may downgrade your monthly data allowance at any time. Any permitted upgrade or downgrade to a plan will take effect from the beginning of the next billing month.

5.3 You warrant, represent and agree that in accessing and using the Services You will only use software that You are legally entitled to in a way that will not be a breach of copyright or any other law.

5.4 You acknowledge and agree that CHOICE does not and cannot in any way supervise, edit or control the content and form of any information or data accessed through the Services and CHOICE shall not be held responsible in any way for any content or information accessed via the Services other than information on the MyCHOICE Portal and the CHOICE website.

5.5 CHOICE disclaims all or any liability for any material on the Internet or otherwise that You or any person using the Services at or from Your premises finds offensive, upsetting or defamatory. You must provide appropriate adult supervision of the use of the Services if used by persons under the age of eighteen (18).

5.6 Without limiting the Acceptable Use Policy, You must not act on or through the Services so as to interfere with or disrupt Internet users, service providers, their computers, software or hardware. Such actions include, but are not limited to, the circulation of any unsolicited publicity or advertising material, propagation of computer worms and viruses, using the Services to make an unauthorised access of any other computer accessible via the Internet, sending harassing, obscene, indecent, offensive or threatening electronic mail, forgery (or attempted forgery) of electronic mail messages and the placement, transmission or storage of any defamatory material.

5.7 Without limiting the Acceptable Use Policy, You agree to refrain from the bulk transmission of messages to unsuitable Internet users, service providers or newsgroups. You agree to refrain from the bulk transmission of unsolicited electronic mail.

5.8 Without limiting the Acceptable Use Policy, You will not access, nor permit any other party to access or use, any Service:

(a) to commit any unlawful act;
(b) for any purpose or activity of an illegal, unlawful, fraudulent or defamatory nature; or
(c) to do or instruct others to do any act that may damage the Network or systems of CHOICE or any Supplier or cause the quality of any Services to be impaired in any way.

5.9 Without limiting the Acceptable Use Policy, You will not reproduce, distribute, transmit, publish, copy, transfer or commercially exploit any information accessed through or received from a Service that would be an infringement of any copyright, patent, trademark, design or other intellectual property right

5.10 You will prepare and maintain sufficient and frequent back-up files and data storage capacity for Your data including electronic messages and You understand that CHOICE shall not be responsible for the back-up or retention of any electronic messages or other of Your files which may be stored on CHOICE’s computer servers.

5.11 You may not resell or resupply any Service to any third party.

5.12 You may only access the Services using the CPE configured for connection to the Services as approved by CHOICE and only at the premises specified on the approved Application Form.

5.13 You warrant, represent and undertake that any use by You of:

(a) the Services supplied to You;
(b) any other network, system, equipment, and facilities, and any goods and services that You order from CHOICE; and
(c) any other equipment You use in connection with the Services,
is at all relevant times lawful and complies with any lawful directions, does not contravene any law or court order, is not fraudulent or contrary to any provision to this Agreement, and will not expose CHOICE or any Supplier, to any liability to any third party.

5.14 Without limiting the Acceptable Use Policy, You warrant, represent and undertake that You will not use the Service, and You will not permit any third party to use the Service, to provide, use, transmit, receive or possess any information, documentation, text, data, graphics, images, software, audio or visual material, and any other material in whatever form, using the Services, or using any CPE or other goods or services supplied under this Agreement, in any way which infringes any person’s intellectual property rights (including but not limited to CHOICE’s or any third parties’ intellectual property rights), or which is unlawful, is defamatory, abusive, offensive, indecent, menacing, or which infringes any duty or obligation in contract, tort or otherwise which You have to any third party (“Unsuitable Content”).

5.15 You indemnify and hold harmless CHOICE and any Supplier to CHOICE and their personnel, from and against all claims and losses suffered or incurred by any of them regarding the provision, use, transmission, receipt or possession of any Unsuitable Content transmitted using any goods or services supplied under this Agreement or over the Network.

5.16 You must not damage, interfere with, repair, service, move, disconnect, or threaten:

(a) the Network;
(b) any other CHOICE customer’s network, systems, equipment or facilities used in connection with the Network; or
(c) any network, systems, equipment or facilities of any Supplier which are used in connection with a supply or the Services to You,
including through the use of any network, system and facilities used by CHOICE in relation to the carrying of communications by means of guided or unguided electromagnetic or optical energy, or through the use of any CPE or other equipment used by You in connection with the Service.

5.17 You must not deal with, alter or deface any labelling, identification or trademark affixed to any equipment, including any CPE, that is owned, operated, or controlled by CHOICE or any Supplier.

5.18 You must at any time and on request from CHOICE provide the location of any CPE or other equipment of CHOICE or any Supplier which is in Your possession or control.

5.19 You acknowledge and agree that where CPE is owned by CHOICE or a Supplier. You must:

(a) not create, or suffer to be created, any security interest (including, on the Personal Property Securities Register), encumbrance, lien, charge or mortgage of any part of that CPE or any other goods supplied to You in this Agreement or over any part of the Network;
(b) take all reasonable care of the CPE, and the services supplied to You in this Agreement and any part of the Network which you access and not damage or interfere with or permit any other person to damage or interfere with the CPE; and
(c) insure the CPE against with a reputable insurer for its replacement value of $1,500.

5.20 If You fail to comply with clause 5.19:

(a) Neither CHOICE or any Supplier will be liable for any losses that may be incurred by You arising from or in connection with CHOICE’s or any Supplier’s failure to comply with its obligations as a result of Your failure to comply with any of the above requirements including the costs set out in clause 2.4; and
(b) You will indemnify and hold harmless CHOICE and its Suppliers and personnel from and against any and all reasonable losses or claims that may be incurred or suffered by any of them arising from or in relation to Your failure to comply with clause 5.19.

6. Charges

6.1 You shall pay the Charges according to the price payable for the Services selected by You on the Application Form. Where a Service plan specifies a maximum monthly transmission or data limit (specified in gigabytes or otherwise), You must still pay the applicable monthly charge if the maximum monthly data limit is not reached.

6.2 Unless otherwise specified in the Application Form, the standard Charges for each Service must be paid monthly in advance from the Commencement Date with any additional Charges for Services You have purchased during the month (for example, where You have purchased an extra data pack) being paid monthly in arrears, in each case via credit card through the MyCHOICE Portal, via electronic banking or by Direct Debit.

6.3 CHOICE shall notify You of the Charges due each month in the form of a tax invoice issued via email or via the MyCHOICE Portal. You must pay the Charges by the due date specified and in accordance with any instructions on the invoice. If You fail to do so or, if payment is to be made by credit card through the MyCHOICE Portal and the credit card number expires or CHOICE is otherwise not able to debit valid Charges to the credit card provided by You, CHOICE may charge You:

(a) a late payment fee not exceeding $23 for each such occurrence to cover CHOICE’s reasonable administrative costs;
(b) default interest at the rate of 18% per annum on all sums owing from the due date for payment to and including the date the Charges are actually paid; and
(c) reasonable costs incurred by CHOICE in collecting any overdue Charges from You, including costs on a solicitor own client basis.

Further, if an invoice is not paid on time:

(a) for invoices more than seven (7) days overdue, Your connection to the Service will be suspended (and a reconnection fee of $20 will apply to restart a Service); and
(b) for invoices more than fourteen (14) days overdue, Your connection to the Satellite Service and this Agreement will be terminated.

6.4 Unless otherwise specified, the Charges are inclusive of Goods and Services Tax and all other taxes, duties and charges imposed or levied in connection with the supply of the goods and services supplied under this Agreement, unless specified otherwise. However, You shall be liable for any new or increased taxes, duties or charges imposed subsequent to the date of this Agreement in respect of the goods and services supplied under this Agreement.

6.5 If CHOICE omits or miscalculate any Charges or other amounts payable by You under this Agreement in an invoice, CHOICE may issue an additional invoice to You at a later date, or adjust a later invoice submitted to You to recover the omitted or miscalculated Charges or other amounts, or issue an adjustment note.

6.6 CHOICE may review and adjust any Charges by giving You not less than one month’s notice of the new Charges provided that, unless the circumstances in clause 5.4 apply, CHOICE will not increase the Charges for Services during any minimum term for those Services.

6.7 If You have an outstanding debt with CHOICE, CHOICE has the right to transfer that debt to another party who will then have the right to collect that debt from You.

7. Technical Support and Customer’s Rights

7.1 Customers can lodge faults and complaints and seek customer support by:

(a) e-mailing support requests to: support@choicebroadband.co.nz; or
(b) phoning Customer Support on 0508 GET CHOICE (0508 438 246) during normal support hours.

7.2 You may appoint an Authorised Representative to act on Your behalf in any dealings with CHOICE, if You so require, by providing a written authority to CHOICE which is approved by CHOICE. An Authorised Representative will have the power to act on Your behalf as if they are You or, if the Authorised Representative has more limited rights, the level of access that the Authorised Representative has been given to Your information.

7.3 You acknowledge that You have no right, title or interest in any number or address allocated to You by CHOICE as part of any Service including any internet protocol (“IP”) address. We reserve to right to alter or replace any number or IP address at our discretion.

8. Privacy and Security

8.1 You acknowledge and agree that any personal information you provide to CHOICE or submit over CHOICE’s network is subject to our Privacy Policy and you consent to CHOICE’s use of Your personal information in accordance with that Privacy Policy. You authorise CHOICE to disclose that personal information to our third party suppliers, credit reporting agencies, contractors and agents, to the extent reasonably required for us to exercise our rights or perform our obligations under this Agreement.

8.2 You are responsible for maintaining the secrecy and confidentiality of all identification and log-in information required by You to access any Service.

8.3 You agree not to disclose to any other person, corporation, entity or organisation any identification or log-in information, whether in use or not, nor any other confidential information relating to any Service or of CHOICE.

8.4 You are responsible for maintaining the security of identification and log-in information used to access the Service or Your account information. If you believe Your identification or log-in information for use of the Services has been compromised or that someone is accessing the Service provided to You without your authorisation, you must notify CHOICE as soon as possible so CHOICE can act to prevent the Service from being misused.

8.5 You are responsible for all fees and Charges resulting from use of any Service accessed through Your identification or log-in information, including use by third parties whether authorised by You or not and whether or not relating to a security breach except only for Charges:

(a) Incurred because of CHOICE’s error or negligence; or
(b) For unauthorised use unless such use is by a third party within Your reasonable control or is the result of Your negligence, carelessness, breach of the Agreement or failure to comply with CHOICE’s reasonable requirements.

9. Indemnity

9.1 The Customer releases and indemnifies CHOICE, its servants and agents against all actions, claims and demands (including the cost of defending or settling any action, claim or demand) which may be instituted against CHOICE arising out of a breach of this Agreement by the Customer or anyone using the Services at the premises nominated by the Customer on the Application Form, or the negligence of the Customer, its agents, employees or sub-contractors or of any other person for whose acts or omissions the Customer is vicariously liable.

10. Consumer Guarantees Act and Fair Trading Act

10.1 If You use any goods or services supplied pursuant to this Agreement for the purposes of a business, or if you indicate to us that You are doing so, the guarantees under the Consumer Guarantees Act 1993 and sections 9, 12A and 13 of the Fair Trading Act 1986 will not apply.

10.2 If you are acquiring the goods or services supplied pursuant to this Agreement other than for the purposes of a business then you will have the benefit of statutory guarantees under the Consumer Guarantees Act 1993. If the Consumer Guarantees Act applies, all the rights You have under that Act will apply in addition to the rights set out in this Agreement. Nothing in this Agreement limits or excludes any rights you have under the Consumer Guarantees Act, the Fair Trading Act 1986 or any other legislation or law which cannot be lawfully excluded.

11. Exclusions and limitations of liability

11.1 Except only where CHOICE is liable to You under the Consumer Guarantees Act 1993 or the Fair Trading Act 1986, CHOICE will not be liable to You or anyone claiming through You for any Consequential Loss You might have had arising from or in connection with Your use of the CPE or the Services or otherwise in connection with this Agreement.

11.2 CHOICE shall not be liable to You in respect of:

(a) Faults or problems unrelated to CHOICE’s conduct or the CPE or other goods and services it supplies;
(b) losses to the extent such loss is caused by Your negligence or breach of contract or are caused by something else completely independent of CHOICE; and
(c) any other loss or damage, to the extent it is caused by Force Majeure

11.3 Subject to the exclusions above, CHOICE’s total liability to You or anyone claiming through You will be limited to the aggregate Charges paid by You for the six-month period prior to the event that gave rise to liability (or where there is more than one event, the first such event).

11.4 The exclusion of liability and limitation of liability clauses set out above:

(a) Are for the benefit of CHOICE and its officers, employees and agents and anyone else for whom any of these people are responsible; and
(b) Where you are a consumer, are subject to and do not limit any rights and remedies you may have under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986.

11.5 CHOICE also has obligations to its Suppliers. To the maximum extent permitted by law You agree that the Suppliers (and their officers, employees and agents and those of any of their related companies) will not be liable to you or anyone else for any claims, costs and damages or losses of any kind arising in any way from the CPE or the Services or from Your use of the CPE or the Services. This clause creates an obligation for the benefit of the Suppliers and may be enforced or otherwise relied on by them.

11.6 You are not liable to CHOICE:

(a) For any loss to the extent that loss is caused by CHOICE or a Supplier;
(b) unless this Agreement specifies otherwise, for any Consequential Loss arising from or in connection with your use of the CPE or the Services or otherwise in connection with this Agreement.

11.7 If You are found liable to CHOICE, Your liability will be limited to the aggregate Charges paid or payable by You for the six-month period prior to the event that gave rise to liability (or where there is more than one event, the first such event). This limitation does not apply to:

(a) Your obligation to pay the Charges;
(b) any loss or damage to the CPE owned by CHOICE or a Supplier (to the extent such loss is the result of Your breach of this Agreement); or
(c) any loss or damage caused by fraud, wilful breach or wilful damage.

12. Our Rights of Termination and Suspension

12.1 Without limiting the generality of any other clause in this Agreement, CHOICE may terminate this Agreement immediately by notice in writing if:

(a) You are in breach of any material term of this Agreement (including, in relation to payment for any Service and care of CPE owned by CHOICE or a Supplier) and such breach is not remedied within fourteen (14) days of You being notified of the breach by CHOICE;
(b) CHOICE believes on reasonable grounds that You are using a Service in breach of the Acceptable Use Policy and you have failed to cease or prevent such use within 7 days of Us giving You notice requiring You to stop the unacceptable use;
(c) You become, threaten or resolve to become or are in jeopardy of becoming subject to any form of bankruptcy, winding up, administration, receivership, liquidation or other insolvency administration;
(d) You, being a partnership, dissolve, threaten or resolve to dissolve or are in jeopardy of dissolving;
(e) You, being a natural person, die;
(f) CHOICE is no longer able to provide You with a Service; or
(g) CHOICE is required to do so by an order of a court, tribunal or other statutory authority with jurisdiction.

12.2 Without limiting any other provision of this clause 12, You agree and acknowledge that if a Supplier has an express right under an agreement with CHOICE or at law to remove or disconnect CPE owned by CHOICE or a Supplier, or if CHOICE has an obligation or a right under this Agreement to disconnect You from a Service or otherwise withdraw, suspend or terminate a Service, You must provide all cooperation reasonably requested by CHOICE to facilitate the disconnection, including by providing access to the relevant CPE to allow its disconnection and removal or by following any reasonable directions from CHOICE in relation to the disconnection and return of the CPE to CHOICE.

12.3 Without limiting any other rights of CHOICE, CHOICE, acting reasonably, may suspend all or part of the operation of this Agreement (including by refusing or otherwise limiting or varying the capacity or speed of the CPE or any Services) with immediate effect if:

(a) the performance of this Agreement is or becomes unlawful, endangers the health or safety of any person or poses an actual or imminent threat to any property;
(b) CHOICE, is unable to acquire, in its reasonable opinion, the Service to a standard or quality that is acceptable to CHOICE;
(c) You damage, interfere with the CPE owned by CHOICE of a Supplier or any network, systems, equipment or facilities of CHOICE or a Supplier, or any other customer of CHOICE or any of their suppliers;
(d) You are in material breach, or likely to be in material breach, of any provision of this Agreement; or
(e) CHOICE ceases to be a telecommunications carrier or carriage service provider.

12.4 In the case of a suspension under clause 12.3(a),(b) or (e) the suspension will continue until CHOICE, acting reasonably is satisfied that the event giving rise to the suspension has ceased to apply, or has been remedied and each party is ready to resume performance of this Agreement.

12.5 In a case of a suspension under clause 12.3(c) or (d) the suspension will continue until CHOICE, acting reasonably, is satisfied that You have remedied the event giving rise to the suspension and each party is ready to resume performance of this Agreement.

12.6 In the case of any suspension under clause 12.3 lasting more than 30 days, CHOICE may terminate this Agreement.

13. Minimum Terms and Your Rights to Terminate the Agreement

13.1 Unless otherwise agreed by CHOICE, the minimum term of each Service you purchase under the Agreement is the minimum term (if any) selected by You in an Application Form.

13.2 In the event of termination by You prior to the end of an agreed minimum term, or if CHOICE terminates the relevant Service or the Agreement pursuant to clauses 12.1(a) – (d), in each case before the end of the minimum term, You will be required to pay an early termination fee. The amount of the early termination fee is specified in the Service Summary available at the time You submitted an Application Form for the relevant Services or where not so specified, is $850. You acknowledge that CHOICE may not be able to immediately redeploy the CPE it owns or any upstream bandwidth in another income producing capacity. If you wish to have greater flexibility or do not want any early termination fee to apply, You should select the Service option with no minimum term.

13.3 The Agreement rolls over on a month-to-month basis after expiry of the minimum term, unless You and CHOICE agree to a further minimum term.

13.4 After the expiry of the minimum term, the Agreement may be terminated by either party on providing one month’s notice in writing.

13.5 Notwithstanding the above provisions of this clause 13, You may terminate this Agreement during the minimum term without having to pay any early termination fee if:

(a) CHOICE ceases to be a telecommunications carrier or a carriage service provider;
(b) CHOICE is in material breach of this Agreement and does not cure that breach within twenty (20) business days after the date You provide CHOICE with written notice to do so; or
(c) the circumstances in clause 3.6 or clause 15.1(c) apply.

14. Consequences of Termination

14.1 This clause 14 applies if this Agreement expires or is terminated, or if a particular Service is cancelled or no longer supplied.

14.2 From the effective date of cancellation and/or expiry, termination or discontinuance of supply of any Service:

(a) You will lose any entitlements for Services paid for but not used;
(b) CHOICE may invoice You for Charges for goods and Services supplied which have not previously been invoiced, including any applicable early termination fee, and such Charges shall be immediately due and payable;
(c) CHOICE will be regarded as discharged from any further obligations under this Agreement;
(d) CHOICE will be entitled to pursue any other remedies provided by law;
(e) CHOICE may stop any access to the Services by You; and
(f) Your right to use the Services and any CPE owned by CHOICE immediately ceases.

14.3 If CHOICE cancels the supply of any goods or Services to You or terminates this Agreement as a result of Your breach, You are liable to pay damages to CHOICE for any loss suffered by CHOICE as a result of the cancellation and/or termination. This may include any applicable early termination fee as provided in 13.1.

14.4 At any time after the cancellation and/or effective date of expiry or termination of this Agreement or any Service, CHOICE may remove, or procure the removal of, all CPE and other equipment and other items owned by CHOICE, or a Supplier, from Your premises. You represent and warrant to CHOICE that you have obtained any necessary consents and rights of access from any necessary person for any works that are necessary for the removal of such CPE, equipment and items.

14.5 You must provide all cooperation reasonably requested by CHOICE to facilitate the disconnection and return of the CPE owned by CHOICE or a Supplier (if any), including by providing access to such CPE to allow its disconnection and removal or by following any reasonable directions from CHOICE in relation to the disconnection and return of that CPE to CHOICE. If within three weeks of CHOICE’s request, You:

(a) do not provide reasonable access for CHOICE or its Suppliers to remove CPE owned by CHOICE or a Supplier, or
(b) where CHOICE has requested that You disconnect and return the CPE owned by CHOICE or a Supplier to CHOICE and:

i. You fail to return that CPE to CHOICE; or
ii. the CPE is lost or is returned to CHOICE in a damaged condition (other than fair wear and tear),
You will pay the reasonable cost as determined by CHOICE of repairing (if capable of being repaired) or replacing the CPE owned by CHOICE or a Supplier.

14.6 Expiry or termination of this Agreement by either Party shall not affect the right of either Party to enforce its accrued rights against the other Party.

15. Variation of Agreement

15.1 CHOICE may vary the Agreement at any time subject to the following provisions:

(a) In relation to variations that CHOICE reasonably believes will benefit You or have no or a neutral impact on You, we may make the change without giving You prior notice;
(b) In relation to variations that may or would cause detriment to You, the minimum period of notice to be given to You before the variations take effect is one month provided that CHOICE reserves the right to urgently change the terms of this Agreement if required by law or where necessary for security reasons, to prevent fraud or for technical reasons. In such instances, CHOICE will give you as much notice as is reasonably practicable.
You will be informed of the variations via email and/or via the MyCHOICE Portal; and
(c) If You are using Services that have a minimum term and CHOICE makes a variation that You acting reasonably and in good faith believe has a material detrimental effect on You, You may terminate this Agreement by two weeks’ notice in writing to CHOICE without incurring early termination fees. You will still be required to pay the usage or network access Charges (including monthly access charges for the Services) to the date the Agreement ends and any outstanding amounts for installation or for CPE supplied with the Services; and
(d) Requests for termination under clause 15.1(c) must be made within three months of the date CHOICE notifies You of the variation. If You continue to use the Services after that date, You are deemed to have accepted the variation.

15.2 An up-to-date copy of the Agreement may be obtained from the MyCHOICE Portal or from the Website.

16. Sub-contracts

16.1 CHOICE may subcontract or delegate the performance of this Agreement or any part of this Agreement but this will not relieve CHOICE from liability for the performance of its obligations. CHOICE’s subcontractors and agents may enforce those rights or obligations expressed to be for their benefit in accordance with Part 2 of the Contract and Commercial Law Act 2017.

16.2 CHOICE may, without the consent of the Customer, engage individuals on a sub-contract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of the Services.

17. Assignment

17.1 The Customer shall not assign or novate the whole or part of this Agreement to another party without the prior written consent of CHOICE.

17.2 CHOICE may assign the whole or part of this Agreement to another party without the prior written consent of the Customer.

18. Waiver

18.1 No term of this Agreement shall be deemed to be waived except by notice in writing signed by each Party.

18.2 A waiver made by CHOICE pursuant by clause 18.1 will not prejudice its rights in respect of any subsequent breach of the Agreement by the Customer.

18.3 Subject to clause 18.1, any failure by CHOICE to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by CHOICE to the Customer, will not be construed as a waiver of CHOICE’s rights under this Agreement.

19. Severability

19.1 If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted.

20. CHOICE’s rights

20.1 Any express statement of the right of CHOICE under this Agreement is without prejudice to any other right of CHOICE expressly stated in this Agreement or existing at law.

21. Survival of Agreement

21.1 The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.

22. Governing law

22.1 This Agreement will be governed by and construed according to the laws of New Zealand, and the Parties submit to the exclusive jurisdiction of the courts of New Zealand.

23. Notices

23.1 Notices under this Agreement may be delivered by hand, by email, or by mail to either Party. CHOICE may also notify the Customer via the MyCHOICE Portal.

23.2 Notice will be deemed given:

(a) in the case of hand delivery by either Party, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;
(b) in the case of posting by either Party, five days after despatch;
(c) where sent by email by Customer to CHOICE, upon receipt by Customer of written acknowledgement from CHOICE confirming the delivery of the email to CHOICE;
(d) where sent by email by CHOICE to Customer, upon the email being confirmed as sent on CHOICE’s email system;
(e) where sent to the Customer via the MyCHOICE Portal, within 24 hours.

23.3 The physical address for service of notices on CHOICE is:

24 Unity Drive North
Rosedale
Auckland 0632

23.4 The address for service of notices on the Customer is the address specified by the Customer in the Application Form.

23.5 If CHOICE shapes, suspends or disconnects a Service, CHOICE may notify the Customer in accordance with this clause 23 or by automatically redirecting the Customer’s web browser to a webpage containing a shaping, suspension or disconnection notice. Notification via that webpage will be deemed given immediately the redirection is activated by CHOICE.

24. Definitions and Interpretation

24.1 In this Agreement:

Acceptable Use Policy means the conditions of use applicable to the Service as varied from time to time, a copy of which is available online at https://www.choicebroadband.co.nz/legal;

Application Form means an online or paper-based application form for the Services designated by CHOICE for the purposes of this Agreement, completed by the Customer and submitted to CHOICE;

Authorised Representative means a person who has authority from You to deal with CHOICE on Your behalf as Your authorised agent;

Charges means the charges payable by the Customer to CHOICE pursuant to this Agreement including, but not limited to, monthly fees for the Services;

Commencement Date means the date the Service is actually available for use by the Customer;

Consequential Loss means any:

(a) consequential, indirect, special or incidental loss; or
(b) loss of profits, loss of revenue, loss of income, losses from loss of business, losses from loss of production, loss of goodwill, loss of reputation, losses from corruption or loss of data, loss of anticipated savings, losses from loss of management time, loss of opportunity, loss of entitlements to special damages, losses from loss or impairment of being able to use the CPE or any of the Services or the Internet;

Customer or You or Your are all references to a person who obtains a Service from CHOICE under this Agreement following the submission of an Application Form;

Customer Premises Equipment or CPE means any equipment located on or installed at Your premises, whether owned by You or owned, operated or controlled by CHOICE or any

Supplier that is required to access the Service and for the avoidance of doubt, includes any network termination device, router, modem, satellite dish, outdoor unit, antenna and cabling but does not include any end-user device.

Force Majeure means a circumstance beyond the reasonable control of CHOICE which results in CHOICE being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include, but shall not be limited to:

(a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
(c) malfunction of a Satellite, CPE or the Services due to any reason beyond CHOICE’s reasonable control, for example due to weather or space conditions.

Internet means the worldwide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and other communication;

MyCHOICE Portal means the private and secure section of Our website that enables You and Your Authorised Representative convenient access to Your account information, provides an ability to pay invoices, change plans, view usage and similar functionality.

Party means CHOICE or the Customer (as the context dictates) and Parties means both CHOICE and the Customer;

Satellite means the ‘IPSTAR 1’ satellite or any other satellite CHOICE may use for provision of the Services to You;

Network means the telecommunications network (which may include the Satellite and/or terrestrial network elements) that is owned or controlled by, or operated on behalf of CHOICE or a Supplier and may be used for the provision of the Services;

Schedule means a schedule to this Agreement; and

Service or Services means the service(s) requested by the Customer in an Application Form for the use of the Services as more particularly described in the Service Summary.

Service Summary means the overview of each of the Services available on Our Website or otherwise provided to Customers which describes the Services and the key terms applicable to the Services, including: the maximum speeds; monthly data allowance; Charges; required CPE; minimum term (if any); and any applicable early termination fee.

Supplier or Suppliers means any supplier of telecommunications goods or services to CHOICE which CHOICE uses to supply any part of the CPE or Services to You.

24.2 Interpretation:

(a) the introduction and “important notes” on pages 1 and 2 of this document form part of the Agreement;
(b) the clause headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;
(c) a cross-reference to a clause number is a reference to its subclauses;
(d) words in the singular number include the plural and vice versa;
(e) words importing a gender include any other gender;
(f) a reference to a person includes a partnership and a body, whether corporate or otherwise;
(g) a reference to a clause is a reference to a clause or subclause of this Agreement;
(h) a reference to a subclause is a reference to a subclause of the clause in which that reference is made;
(i) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(j) a reference to a Schedule includes a reference to any part of that Schedule which is not physically annexed to this Agreement but which is incorporated by reference;
(k) monetary references are references to New Zealand currency;
(l) the words “includes” and “including” are not words of limitation; and
(m) a provision of this Agreement will not be interpreted against a party merely because a party prepared or is responsible for its preparation.

SCHEDULE 1

Description of Satellite and Wireless Broadband Services

Satellite Services

The description and details of the satellite Services supplied by CHOICE are found on the CHOICE website here.

Wireless Broadband Services

The description and details of the wireless broadband Services supplied by CHOICE are found on the CHOICE website here.