TelstraClear - Now's Good

Effective 26 February 2008.

1. Our agreement with you

Set out below are TelstraClear's standard terms for internet services customers. These are the main terms of our agreement with you. Additional terms apply to some of our internet services. These additional terms will also form part of our agreement with you. If these standard terms conflict with any additional terms, then the additional terms will take precedence.

These terms apply from 26 February 2008 and replace any agreement you already have with us. By using our internet services or continuing to use our internet services after 26 February 2008 (if you are already a customer), such use means you accept these terms.

2. Definitions

In these terms, "we", "us" and "our" means TelstraClear Limited, "you" means you, our customer.
"internet services" means the internet services that we offer.

3. Our commitment to you

If you are not already receiving internet services from us we will begin providing the internet services to you within a reasonable time after you order them.
We will always do our best to make sure that you receive reliable and high-quality internet services. We cannot however guarantee that our internet services will always:

operate free of faults;
be free from viruses, other harmful programmes or disabling features; and
be secure or private.

If you do encounter a fault in our internet services you should contact Customer Care and we will work to restore the service as soon as possible. We will not be responsible for fixing any fault with the internet services that occurs because of a fault in your equipment or because you have used the internet services incorrectly or because of any other event beyond our reasonable control, such as problems with the internet or viruses.

From time to time we may temporarily suspend or restrict the internet services so that we can carry out maintenance and development work on our network. We will always try to give you as much advance notice as possible.

4. Your responsibilities

Except where we tell you otherwise, you are responsible for providing the telephone line, modem, computer, hardware, software and all other equipment required to use the internet services. It is your responsibility to keep your systems secure and free of viruses.
In return for us providing the internet services to you, you agree to:

pay for all the internet services that we provide to you (including any additional usage charges) by the due date for payment;
follow our reasonable instructions about using the internet services that we may notify you of from time to time;
use the internet services in a reasonable and responsible manner and in accordance with our Acceptable Use Policy (which is available at www.telstraclear.co.nz/go/acceptableuse);
only use the internet services for the purposes that they are provided for;
not use the internet services in any way that is unlawful (including under any law passed after the date of this agreement) or offensive or could interfere with our network, any other operator's network or with another customer's enjoyment of our services;
not use the internet services to publish or distribute any information, software or other material which is unlawful or which a reasonable person would consider offensive, abusive or defamatory (flaming);
not use the internet services to send unsolicited electronic mail to any person for the purposes of advertising or promoting any organisation (spamming);
not use the internet services to gain or attempt to gain unauthorised access to any computer systems or in a manner which infringes our rights or the rights of any other person;
not use the internet services to knowingly transmit any virus or other disabling feature;
take all reasonable care to prevent the spread of viruses, or contamination by virus, of any software or hardware operated by any other person;
ensure that all personal information that you give us is correct, current and complete and provided in a timely fashion;
notify us immediately if any of the personal information that you have provided us changes; and
make sure that anyone else who uses the internet services that we provide to you also abides by the terms of this agreement.

You will be responsible for protecting your computer against any virus, unauthorised access or spam. We recommend that you install appropriate firewalls, spam filters and anti-virus software as we do not provide any spam or virus protection with the internet services (except for the email filtering services described below) and you will be responsible for any additional traffic that may result from any virus, spam or unathorised access. Therefore, to the extent permitted by law, we accept no liability in relation to any virus, unauthorised access or spam experienced by you. However you are responsible for ensuring the compatibility with the internet services of, and the support and maintenance of:

firewalls, spam filters, anti-virus and other software; and
modems and other hardware and software.

You will indemnify us against all liability, losses and costs that we incur:

through your failure to do any of the above;
through your failure to perform any other obligation that you have under this agreement; or
as a result of any claim made against us by a third party as a result of your use of the internet services, including as a result of material that you generate or disseminate by using the internet services.

5. Provision of email services

We will always do our best to deliver your email to the destination to which it is addressed whenever this is reasonably possible.

You agree to promptly remove your email from our mail server. We may remove your email data that is in excess of 10 megabytes from our mail server unless you have made alternative arrangements with us. We will not be liable to you for the loss of any such data.

Email identified as being from recognised senders of spam will be automatically blocked from delivery to your mailbox. Other email likely to be spam will be filed in a separate folder in your mailbox which can be viewed via WebMail ("Spam Folder"). We will delete all emails that have been in your Spam Folder for longer than 3 days and we will not be liable for any loss or damage that you may suffer as a result of such deletion. Accordingly we strongly recommend that you regularly check your Spam Folder.

We do not guarantee our email service will:

detect all unsolicited "spam" email received by your mailbox;
not classify valid email that you receive as spam; or
be real time i.e. there may be a delay between sending and receiving email.

We will retain ownership of any email address that is allocated to you as part of our provision of the internet services. If this agreement is cancelled, we may allocate that email address to another customer.

6. Our charges and services

You can obtain a free copy of information about our current internet services and charges by calling Customer Care or by visiting our website www.telstraclear.co.nz.

From time to time we may decide to change some of our charges. We will give you 10 working days notice before changing our charges.

From time to time we may amend or discontinue our internet services and/or our packages of internet services (even if a minimum term applies to those internet services). Where we do this we will endeavour to give you advance notice of this. If we discontinue an internet service or a package of internet services we will endeavour to move you onto the internet service or package of internet services that we consider is most similar to the internet service or package of internet services that we are currently providing to you.

We reserve the right to charge a monthly maintenance fee if you do not connect to the internet using the internet services for 6 months or more.

Where the provision of an internet service is dependant on a third party providing internet services to us, we may not be able to provide that internet service or we may need to terminate that internet service if the third party is unable or unwilling to provide the internet services to us. Where this occurs we will provide as much notice as we are reasonably able and will endeavour to provide alternative internet services to you.

Where you do not agree to the changed internet service or package, or us moving you onto another internet service or package, then except in the circumstances set out in the next paragraph but notwithstanding anything else in these terms you may cancel that internet service or package within 5 working days of receiving our notice.

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

While we will endeavour to make internet services available to you where we can, not all internet services will be available to all customers and not all internet services will be available in all areas.

7. Paying your bill

Fixed charges will be payable one month in advance. Any additional usage based charges will be payable in arrears.

Please contact Customer Care if you have any questions about your bill. If we agree that we have made a mistake then we will correct the bill. If we find that there is no mistake and the due date for payment has already passed, you agree to pay your bill straight away. If you have not contacted us before the due date shown on your bill then you agree to pay the full amount.
If your account is overdue, we may:

suspend any of the internet services that you have asked us to provide;
charge you any temporary disconnection charge; and
continue to charge you any fixed monthly charge applicable for those services during the period of suspension.

If you do not pay your bill on time and we have to spend money on collecting overdue amounts from you then you will reimburse us for those costs.

Part payment of your bill will not amount to a full and final settlement unless we have agreed to this in writing.

Sometimes charges will not show on your bill until some time after the month in which they were incurred. You will still be liable for such charges.

8. Changing service provider

You acknowledge that where you are changing service provider:

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

9. Credit arrangements

You may have to pay us a deposit before you can use, or continue to use, our internet services. We will tell you when this is required.

10. Ending your agreement with us

A minimum term may apply for some or all of the internet services that you subscribe to from us. We will tell you when this applies.

Unless a minimum term applies to an internet service, you may ask us to stop a particular internet service or cancel this whole agreement at any time and for any reason by giving us 5 working days notice. If a minimum term applies to a service you may stop that service at the end of the minimum term or at any time after the minimum term, in the same way as you are entitled to stop any other internet service. (Any cancellation by you before the end of a minimum term will not be effective until the end of the minimum term unless we have agreed with you otherwise.) You can do this by contacting Customer Care.

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

you do not pay for any of our internet services by the due date shown on your bill;
you give us incorrect information;
you have not given us a deposit we have asked for; or
we consider that you have not complied with these terms and conditions, including your obligations under paragraph 4.

We may stop or suspend a particular internet service or cancel this whole agreement (even where a minimum term applies to any internet service(s)) at any time and for any other reason so long as we have tried to tell you in advance.

We may stop providing you with an internet service without telling you if you do not use the internet service for at least 6 months (even where a minimum term applies for that internet service).
If either of us cancels this agreement for any reason you will:

be liable for any applicable disconnection and early termination fees, unless you are terminating because we have changed an internet services;
still have to pay for all services that we provide to you up until the effective date of cancellation; and
pay any fixed monthly charges until the effective date of cancellation or the end of your current billing period (whichever is later), unless you are terminating because we have changed an internet service.

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

In some circumstances, terminating one internet service may result in us terminating some or all other internet services that we provide to you.

You agree that clauses 4, 10, 11, 15 and 16 will survive cancellation of this agreement.

11. Collecting and using information about you

You agree that we can collect information about you (such as your home address and phone number and evidence that you will be able to pay for the internet services) and the ways in which you are using the internet services. We will ask you for this information or we will obtain it from our records.

You agree to ensure that all information you give to us is correct and complete.

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

Providing you with internet services;
Sending you bills;
Checking your creditworthiness;
Looking at ways in which we can improve our services and develop new services;
Providing aggregated user information to third parties (without at any time disclosing personal information about any identifiable individual); and
keeping you informed about new services and changes to existing services that we offer.

You also agree that we can use information that we have collected about you to keep you informed about services offered by our carefully selected business partners.

In addition to the terms set out here, our Privacy Policy (which is available at www.telstraclear.co.nz/go/privacy) will also apply to the collection of your personal information. We will also comply with our Privacy Policy in dealing with any personal information provided by you via the internet services.

You agree that we may cancel this agreement (even where a minimum term applies to internet service(s) we are supplying) if you request us to stop sending you any information about new services and changes to existing services that we offer or information about services offered by our carefully selected business partners.

You agree that we may monitor and/or record calls made between you and Customer Care for the purpose of maintaining and improving the quality of our service.

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

12. Security and your account

Where we allocate you a password or a security code to use in connection with the internet services or to access your account information, then you will be solely responsible for maintaining security around that password or security code. You must change the password at regular intervals and at any time we request you to. You will notify us as soon as possible if you become aware of any misuse or breach of security in relation to your password.

You will be liable for any use (authorised or unauthorised) of the internet services by any person using the password allocated to you, including any charges associated with that use.

You may nominate a representative (who must be over 18 years) to have access to your account information and to make changes to your account, such as cancelling or adding on internet services. If you do this, you will still be responsible for paying for all the internet services that we provide to you.

13. Personal Properties Securities Act 1999 (PPSA)

You may require us to provide certain equipment to you to enable you to use the internet services provided to you.
If we provide any equipment to you, you agree that:

you will not sell, lease, dispose of, or allow any other person to take a security interest in the equipment; and
where the equipment has a total value in excess of $1,500 we can register a financing statement on the Personal Property Securities Register (PPSR) to reflect our interest in the equipment.

Where we exercise our right to register a financing statement, you also agree to:

provide us with such information as we reasonably request to enable us to register a financing statement on the PPSR;
inform us immediately in writing if you intend to change your name, address or contact details; and
to the extent permitted by law you waive your rights under Part 9 (Enforcement of Security Interests) of the PPSA.

14. Installed services

If we are providing internet services to you that require equipment to be installed or connected in your home or on your business premises (whether installed or connected by us or another service provider), the terms set out below will apply:

(a) Installation
We will arrange a time with you to install the internet services at your home or business premises. If you live or work in rented premises then you agree to ensure that your landlord is happy for us to install our internet services at those premises. Where we attend at your home or business premises at the arranged time and are not able to gain entry we may charge you for that attendance.
We may require you (or your nominated agent) to provide us with proof of identity before commencing work. Once we have finished work we may ask you to confirm that the installation has been completed to your satisfaction. If you are not going to be at your home or business premises on the day scheduled for the install then you may nominate an agent (who must be over 18 years old) to do this on your behalf.

You must pay for all costs of installation, including any additional costs resulting from non-routine installations (please see www.telstraclear.co.nz for our current routine installation guidelines). We will try to tell you in advance if any additional costs will be payable.

We reserve the right not to connect internet services to your household or business for any reason including where TelstraClear considers it uneconomic or unsafe to do so. We may exercise this right at any time even if we have accepted your application for internet services.

(b) Use of services
You may only use our installed internet services at the location where we have installed them. If you move house or business premises and your new address is in our connectable area then you can ask us to install our internet services at that address.

(c) Caring for our equipment
We will remain the owner of any equipment that we locate at your home or business premises to enable you to use the internet services, such as cabling and cable modem. We will remain the owner of this equipment at all times, even after cancellation of this agreement. You will not do anything that affects or is likely to affect our ownership rights in the equipment. We can at any time, replace or change any part of the equipment so long as the internet services are not unreasonably interrupted.

We will always do our best to make sure that our equipment remains in good working order. We cannot guarantee that our equipment will never break-down, but if you do encounter a problem then please contact Customer Care and we will repair or replace any defective item as soon as possible. In return for allowing you to use our equipment, you agree to:

follow our reasonable instructions about use of the equipment;
not tamper or interfere with our equipment (including introducing any viruses or disabling mechanisms into our equipment). (Please contact Customer Care before carrying out any home or business premises renovations);
contact Customer Care if the equipment is lost, stolen or damaged;
take responsibility for repairing or replacing any item of equipment that is lost, stolen or damaged while under your control. (We recommend that you cover this risk under your insurance policy);
give our personnel safe access to your home or business premises so that they can install, maintain and/or disconnect our equipment or for any other reasonable purpose; and
return any equipment you rent from us when you terminate or we stop providing the rental service, unless we agree otherwise. If you don't return the equipment, we may continue to charge you rental for it.

We may at any time and for any reason ask you to return some or all of the equipment that we have located at your home or business premises. If you do not exchange or return it to us when we ask, then we may bill you for the standard replacement charge for the item in question.

15. Consumer Guarantees Act 1993

You can exercise your rights under the Consumer Guarantees Act 1993 (CGA) at any time unless you use, or have indicated you will use, our services for business purposes in which case we exclude all warranties implied under the CGA in respect of the internet services.

16. Our liability to you

Except as required by law or specifically stated in these standard terms or any additional terms we:

make no representations about the suitability, reliability, availability, lack of viruses or other harmful features of the internet services which are provided "as is" without warranty of any kind, including implied warranties of merchantability, fitness for purpose and non-infringement of the rights of any third party; and
are not responsible in any way for the content or quality of the material that you obtain from the internet as a result of your use of the internet services.

To the extent allowable by law:

our liability for any claim, damages, loss or expense that you incur as a result of anything we have done or not done is limited to $5,000 for any event or series of related events and $10,000 for all events occurring in any 12 month period of your agreement with us; and
we will not be liable for any loss of data or any loss of profits or any consequential, indirect or special damage, loss or injury of any kind suffered by you or any other person or any loss to the extent that it is caused by you, for example through your negligence or breach of contract.

17. Liability of third parties to you

Except as required by law, the following people will not be liable to you for any reason:

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

18. Sending bills and notices to you

We will send your bills and any other notices to the latest postal address or to the latest email address that we have allocated to you as part of the internet services we provide. It is important you tell us straight away about any change to your postal or email address. You can do this by contacting Customer Care.

19. Changing these terms

We may change these terms or any additional terms. Except where we have specifically stated in these standard terms or any additional terms another basis on which we may change these terms, we will always give you at least 5 working days' warning of any change, either in writing to the same email or postal address to which we can send your bills or by notices in major city newspapers. You can always contact Customer Care to request a copy of the current terms of your agreement with us or view a copy of those terms at www.telstraclear.co.nz/go/clearnet-terms.

20. Transferring this agreement

We can transfer some or all of our rights and obligations under this agreement. If we do this we will try to tell you in advance. You agree not to transfer any of your rights and responsibilities under this agreement to anyone else.