Terms and Conditions

Terms and Conditions and Applicable Parties

These Terms and Conditions are made between The Digital Lab 2007 Limited trading as Kiwi Internet, The Computer Professors, Kiwi IT (“Kiwi Internet” “The Computer Professors” or “Kiwi IT” or “we” or “our”, “us”) and the user of our services (the “customer “or “you” or “your”). We reserve the right to amend these conditions from time to time and will normally post, on our website, any amended terms at least 15 days prior to their taking effect.

These Terms and Conditions replace all previous Terms and Conditions, including those contained in any document used by you and purporting to have contractual effect, and apply for services to both existing customers and new customers. By using our services you are deemed to have accepted these terms and conditions and they apply as of the date of your application for Services. Further Terms and Conditions that apply specifically to services such as VoIP, web hosting, domain registration, domain hosting, broadband, email, and server hosting can be found under each of those headings.

If you are using our services for business purposes you agree that provisions of the Consumers Guarantees Act 1993 do not apply to the full extent permitted by law.

This agreement and the relationships between the parties shall be governed by the laws of New Zealand.

Applicable Parties

You may not transfer this agreement without our prior written consent. We have the right to transfer our rights and obligations under this agreement without your consent.

Our Services

We are not obliged to provide services unless we accept your application. We can decide whether or not to accept any application.

Kiwi Internet & IT aims to provide you with the highest quality of services. Due to the nature of IT, these services may be interrupted from time to time due to planned or unplanned maintenance, equipment failures and other factors which may or may not be within our control. We will endeavour to notify you of any planned maintenance on our website (www.kiwiinternet.co.nz) but this may not always be possible where critical issues arise. We also use some external services e.g. Chorus broadband networks, and have no control over their equipment and services. In the event of service failure, we will endeavour to restore services as quickly as possible and to minimise disruption to customers.

We reserve the right to change our rates from time to time and if we increase any rates, we will give you as much notice as reasonably possible.

Customer Responsibilities 

Customers agree to comply with all applicable laws and regulations of New Zealand. It is your responsibility to ensure such compliance. Your use of our services must be for lawful purposes only.

Services must not be used for activities that are unlawful, antisocial, pornographic or similarly distasteful in nature or for spamming or sending of unsolicited email including sending to email addresses maintained by Kiwi Internet & IT; or breach of copyright owned by another. Breach of these provisions may result in suspension and/ or termination of services. Kiwi Internet & IT will be the sole arbiter of what constitutes a violation of these provisions.

Customers must ensure that contact information provided to us is correct and up-to-date and maintain confidentiality of any username and passwords provided.

They shall remain in force until either Kiwi Internet & IT or the customer notifies the other in writing (including by e-mail) of intent to terminate agreement.

Prices

Prices do not include software. Any software that is provided by Kiwi Internet & IT to give access remains the property of the software’s owners and the customer is responsible for any fees or donations asked for by the software’s owner. Payment to Kiwi Internet & IT for your account must be paid in advance.

Payment

The customer agrees to pay for services set up with Kiwi Internet & IT, whether directly or through a third party, regardless of whether these services are used or not. Details of account charges and contract periods are as displayed on the website or agreed expressly with Kiwi Internet & IT, and may be subject to change by Kiwi Internet & IT.

All accounts must be setup with direct debit or credit card. If a credit card is provided to pay for the initial invoice, this will be used for payment until a direct debit is setup. Credit card payments will include a $2 or 2.33% bank fee.

Payment is due according to the terms stated on the invoice, paid in New Zealand Dollars. Accounts unpaid within the payment terms may be suspended and/or terminated by Kiwi Internet & IT immediately at Kiwi Internet & IT’s discretion.

Overdue accounts may be subject to a late payment fee of $25+GST and interest charge of 1.5% /month on the outstanding balance. Special arrangements for business customers to pay by the 20th of the following month may be available.

Costs incurred on collection of any overdue debts, including legal and debt recovery costs on a solicitor and client basis, are fully payable by the customer.

Payment for services is normally in advance, unless agreed in writing with Kiwi Internet & IT. Payment terms are displayed on the Kiwi Internet & IT website.

Invoices and statements are normally sent by email. Customer may request post only but an extra postage and handling charge (currently $1.00 / invoice or statement) may apply in this case.

Excess usage charges incurred are fully payable by the customer by the due invoice date. This includes any charges arising through virus or other third-party attack on customer equipment and misuse by customers or their employees. Any query regarding excess time or data charges must be made within 7 days of the receipt of the invoice. Kiwi Internet & IT Services reserves the right to limit their exposure to the user by suspending the account until the full amount is paid. The time in suspension is not deducted from the following months subscribed time.

Broadband new connection and disconnection fees are on charged that we receive from our up-streamer and are fully payable.

Charges are normally exclusive of GST unless otherwise specified.

Fair Use Policy

All Kiwi Internet & IT services are subject to our Fair Use Policy. We may apply our Fair Use Policy where in our reasonable opinion your usage of our Services is excessive and/or unreasonable as detailed in this paragraph.

We have developed our Fair Use Policy by reference to average customer profiles and estimated customer usage of our Services.

If your usage of our Services materially exceeds estimated use patterns over any month, or is inconsistent with normal usage patterns, then your usage will be excessive and/or unreasonable.

Fair Use excludes activities such as auto dialing, continuously call forwarding, tele marketing, call centres, and use of Cellular Trunking Units (CTUs).

If your usage is excessive and/or unreasonable we may contact you to advise you that your usage is in breach of our Fair Use Policy.

We may then request that you stop or alter your usage to come within our Fair Use Policy.

If your excessive or unreasonable usage continues after receipt of a request to stop or alter the nature of such usage, we may without further notice, apply charges to your account for the excessive and/or unreasonable element of your usage; suspend, modify or restrict your use of the Services or withdraw your access to the Services.

Termination of Services

Customers may terminate their account by notice in writing to Kiwi Internet & IT or by email to accounts@kiwiinternet.co.nz. 1 months notice of cancellation is required and accounts may not be terminated during the period of any fixed contract term. (Consider: cancellation during a fixed term does not release you from paying for the balance of the fixed term whether you use the Services or not.) All charges incurred to the date of cancellation (or expiry of the fixed term) are payable by the customer.

Kiwi Internet & IT reserves the right to suspend and/ or terminate an account for breach of these terms and conditions. Kiwi Internet & IT may also terminate services with a customer by normally providing 7 calendar days’ notice of cancellation or is there is a breach of Terms and Conditions Kiwi Internet & IT may suspend or terminate services immediately.

Upon termination all data relating to the customer stored on Kiwi Internet & IT equipment will be deleted at a time of choosing by Kiwi Internet & IT.

Compatibility

Kiwi Internet & IT warrants that its communications software conforms to established telecommunications industry protocols, and should be compatible with most off-the-shelf consumer communications software. Kiwi Internet & IT disclaims any express or implied warranty with respect to the performance, capacity, merchantability, or other compatibility issues of its hardware and software products and services.

Liability

In no event will we be liable (whether in contract, tort (including negligence), equity, breach of statutory duty or otherwise) to you for:
Loss of profits or savings, loss of goodwill or opportunity, loss or corruption of data, or wasted staff time; or
Loss, damage, costs or expense of any kind whatsoever which is indirect, consequential, or of a special nature, arising directly or indirectly from any services or products supplied by us to you, even if we had been advised of the possibility of such loss, damage, cost or expense.
To the extent allowed by law, our total liability under any claim of any nature arising directly or indirectly from any service or product will not exceed the fees paid by you for that service or product.

Indemnity

The client indemnifies we against any and all liability, losses, damages, costs and expenses of any nature whatsoever awarded against, incurred or suffered by we, whether direct or consequential, arising out of or resulting from the Client’s breach of this agreement.

The customer assumes liability for and hereafter agrees to hold us harmless, its employees, agents, officers and directors from all claims for lost profits, punitive or other adjudicated damages, expenses, including reasonable legal fees, incurred from usage of any service provided by with Kiwi Internet & IT. Kiwi Internet & IT does NOT WARRANT that services will be without interruptions or errors. Kiwi Internet & IT will not accept any responsibility for costs, damage, disruption or inconvenience from any services disruption or complete loss of service or data (including loss of email and website data), nor from computer virus (and similar malicious programs, including spam), and is not liable for any associated telecommunications, equipment or software charges. Any data stored on Kiwi Internet & IT equipment is stored at the customers own risk and no responsibility will be taken for loss or damage to the data.

Force Majeure

We will not be liable to you for any breach or failure to perform any of our obligations where such breach or failure is caused by anything beyond our reasonable control, including, but without limitation, inability to obtain supplies, war, civil commotion, terrorism, strike, lockout, an act of God, fire, and natural disaster including floods, earthquakes, tsunamis or other weather phenomena.
If we are unable to perform our duties and obligations under these terms and conditions as a direct result of any such reasons the operations of these terms and conditions will be suspended during the period in which the reason continues.

Fixed Contract Periods and Change of Account Type

Fixed contract accounts provide a discount for a customer’s commitment to Kiwi Internet & IT. In the event of a customer wanting to change the type of account to a higher/ more expensive Kiwi Internet & IT account, any unused time (minimum 7 days remaining) on the old account will be offset against the costs of new account. No credits are available for conversion to a lower level of Service.

Support

Kiwi Internet & IT will normally provide a telephone support service during normal business hours (subject to specific account conditions). On busy and holiday periods, there may be a delay in answering calls or returning voice messages. This telephone support is for queries relating to the services provided by Kiwi Internet & IT, and not to general IT/ PC problems. An after-hours service for urgent technical queries may also be available, but is not guaranteed. Kiwi Internet & IT will endeavour to return customer queries left on voice messages at the earliest opportunity next working day. Queries can also be sent to support@kiwiinternet.co.nz.

On some occasions Kiwi Internet & IT may suggest referring an issue to a third party IT consultant or technician, if the help desk is unable to assist further. Kiwi Internet & IT is not liable for any work carried out by a third party technician and all billing should be agreed directly with the technician and paid directly to them.

Service Terms and Conditions

Broadband Internet

Broadband speed is not greatly determined or influenced by Kiwi Internet & IT equipment. All broadband speeds affected by your geographic location to your local exchange or cabinet, and potentially your home wiring, or modem.

Domain Names

Kiwi Internet & IT acts a reseller for some domain registrars. Kiwi Internet & IT will invoice the customer for the domain or domain renewal in advance. Payment is due before the expiry of the domain. If payment is not received into the bank account of Kiwi Internet & IT by the due date, Kiwi Internet & IT may choose to cancel the domain. Kiwi Internet & IT accepts no responsibility for any loss arising from the cancellation. Any reinstatement of the domain is subject to reinstatement and administration charges, payable in advance. Kiwi Internet & IT reserves the right to refuse to act as a reseller in certain cases.

Email

Kiwi Internet & IT’s mail servers are currently fast, reliable and efficient. We can maintain that level of Service only by effective management of email. The mail servers are configured to allow up to at least 20 megabyte emails to be sent or received at any time. Total mail box space should be kept under 40 megabytes at all times. If your mailbox exceeds 40 megabytes or your unread mail has resided there for more than 60 days, Kiwi Internet & IT reserves the right to remove it in the interests of good mail management.

Kiwi Internet & IT operates a spam and virus filtering service for email intended to remove spam and virus attachments. Whilst we endeavour to make this as efficient and effective as possible, spam and virus emails may still get to the customer and, on rare occasions, valid emails may also be blocked/ deleted by the filters. Kiwi Internet & IT recommends customers use their own anti-virus and firewall systems to help provide further protection.

Web Hosting

Web Hosting is billed as per our website pricing, normally monthly or quarterly in advance unless otherwise arranged in writing with Kiwi Internet & IT. If the account is not paid within the terms of the invoice, Kiwi Internet & IT reserves the right to remove access and disable the web site. Continued non-payment of the account may result in complete termination of web hosting and deletion of all customer data.

The author of each web site is “the publisher”. Kiwi Internet & IT does not moderate and takes no responsibility for the actions of the publishers. Kiwi Internet & IT reserves the right to suspend or delete any site that is not compliant with the applicable laws of New Zealand and may do so at its sole discretion.

Kiwi Internet & IT does not provide backup of customer websites and databases as part of its normal web hosting services and it is the responsibility of website owners to keep copies of all data stored on their sites in the event of data corruption or deletion whether by the customer or Kiwi Internet & IT.

Ecommerce sites operated by customers are operated at the sole risk of the customer and Kiwi Internet & IT does not warrant that services will be free from interruption. Data stored on websites and associated databases is fully at the risk of the customer.

VOIP Services

You understand that the VOIP service is not a traditional phone service and is provided on a best efforts basis. We will use all reasonable endeavours to make our services available to you at all times, however things beyond on control such as power outages or the performance of your internet connection may disrupt the service we provide.

You accept that our services are not required to support emergency calls.

You accept that Kiwi Internet & IT VOIP might not be compatible with non-voice communications equipment such as home alarms, fax machines, Sky Digital and St John Alarms.

Any phone number that we allocate to you does not become your property and does not constitute any transfer of property rights.

If we need to change your number we will send you notification by email and give you as much notice as possible.

We can withdraw or terminate any number at any time without liability, particularly if you do not comply with the instructions for use.

Kiwi Internet & IT retains ownership of all VOIP phone lines until the final bill is settled. Kiwi Internet & IT will then transfer control of the number to you so you can port the number to another service provider.

Once control has been transferred, you may be able to port your Kiwi Internet & IT number to another service provider. If you wish to do so you must contact the other service provider directly and you will be responsible for completing the porting requirements of that service provider. We will comply with our obligations under the Terms for Local and Mobile Number Portability in relation to the porting of your number. You will be responsible for all costs associated with porting the number.

If your account is inactive for more than 6 months or disconnected, and you have not ported the associated phone number(s), we may at our sole discretion reallocate the numbers associated with your account.

We exclude all of our liability to you in connection with us providing services to you or failing to provide services to you. Without limiting this, we are not liable to you (and nor are any of our officers, employees, contractors or agents liable to you):

i) if any communication is intercepted, not properly transmitted or received;
ii) for any disruptions or delays with the use of our services;
iii) for any incompatibility with other services;
iv) if any software we supply does not operate properly; and
v) for any equipment or network failures.

We are not liable to you for any fault in, delay or non-provision of services which is caused by an event beyond our reasonable control.

We are not liable for cost of calls if you login/access details have been used by a 3rd party with or without your control. All call costs in the instance of a 3rd party accessing your login credentials are liable to you, the customer of Kiwi Internet & IT.

We are not liable for cost of calls if you own SIP PABX or other SIP device has been hacked or compromised by a third party with or without your control. All call costs in the instance of a third party accessing your SIP PABX or other SIP device are liable to you, the customer of Kiwi Internet & IT.

If you use another service provider during any period when our service is not fully operational, we are not liable to pay any amount you are charged by that service provider.

You acknowledge that no third party whose network or services we use to supply services to you (nor any officer, employee, contractor or agent of such third party) is in any way liable to you in connection with our services.

If you need access to the 111 service during a power cut, please review if you qualify as a vulnerable customer under the Commerce Commission 111 Contact Code here, and if it applies, please download our application form to fill out and send back to us.

Third Party Software

Kiwi Internet & IT provides access for some customers and their web designers to the webservers for the installation, maintenance or update of software. Kiwi Internet & IT makes no guarantees and takes no responsibility for the performance (or lack of) for this software. Kiwi Internet & IT reserves the right to upgrade, remove or alter any software due to security or performance issues at any time. This could be without consultation with web customers although, where possible, we will attempt to notify known users of the scripts of any change. Usage and maintenance is at the customers own risk.