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Mobile Terms & Conditions

OurCloud Terms and Conditions updated 1st July 2020

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THESE TERMS

1.1 These terms and conditions set out the basis on which OurCloud provides products and services to their customers.

1.2 Additional terms may apply to the customer’s use of some of OurCloud’s services. If so, OurCloud will tell the customer what those terms are – these additional terms will generally be incorporated into the Final Proposal. If there is any conflict between these terms and any additional terms, the additional terms will prevail.

INTERPRETATION

2.1 “agreement” means the Final Proposal and these terms and conditions.
“customer” means the OurCloud customer who is liable for the costs under this agreement.

“OurCloud” means Naki Host Limited, 256 Devon Street East, New Plymouth.

“Equipment” means any equipment supplied by OurCloud or a third party to the customer for the provision of Services from time to time.

“Final Proposal” means the document signed by the customer that sets out the services to be provided by OurCloud, the length of the contract and the cost of the services.

“Mobile Device” means any mobile hardware other than SIM cards (including but not limited to handsets and accessories) that the customer orders from OurCloud from time to time.

“Services” means any or all of the services that OurCloud have agreed to provide the customer as set out in the Final Proposal and as varied from time to time.

“Website” means www.ourcloud.nz.

COMMENCEMENT OF AGREEMENT

3.1 This agreement commences from the date the services are commenced/installed and continues until it is terminated pursuant to this agreement.

OURCLOUD’S SERVICES

4.1 If required and at the discretion of OurCloud, OurCloud may sub-contract other carriers to provide part of any Service.

4.2 OurCloud will use all reasonable endeavours to make the Services available to the customer at all times. However, due to the nature of telecommunications and the reliance placed on networks and services owned by other people, OurCloud cannot guarantee that the Services will always be available or fully functioning. If the Services are unavailable for any reason OurCloud will endeavour to restore the Services as soon as possible. If the customer needs assistance in using the Services they should call the support centre on 06 927 3044.

4.3 While OurCloud takes all reasonable security precautions, due to the nature of telecommunications services OurCloud cannot guarantee the confidentiality of any calls or transmissions the customer makes using the Services.

4.4 OurCloud may suspend or restrict any of the Services at any time if:

(a) OurCloud considers it necessary to protect or maintain their network or anyone else’s network; or

(b) OurCloud believes that the customer has breached any of their terms and conditions. Network charges will still apply during the period of any suspension, and if the Services are suspended because of a breach by the customer, OurCloud may charge the customer a reconnection fee if the Services are recommenced.

CHARGES

5.1 OurCloud will invoice the customer monthly for the Services. The customer must pay the total amount on the invoice on or before the 20th day of the month following the month the invoice is dated, regardless of whether the customer or someone else used the Services.

5.2 If customer chooses to make payment by credit card (VISA or Mastercard) there will be a 1.5% surcharge added to the transaction amount. We do not surcharge debit cards.

5.3 If the customer does not pay any invoice on the due date, OurCloud may:

(a) charge the customer interest on the overdue amount from the due date until the date the customer pays, at the rate of 2% per month; and

(b) withhold any rebate, discount or similar incentive which would otherwise be available to the customer; and

(d) recover from the customer any debt recovery and/or litigation costs; and

(e) require the customer to put in place a direct debit or credit card payment arrangement for payment of the invoices

5.4 Usage-based charges (such as toll calls) are payable in arrears.

5.5 If at any time, or in respect of any period, the customer uses more than the allocated Services that they have contracted to purchase/use for that time or period, the customer will be charged and must pay for any excess Services used.

5.6 OurCloud may vary the charges from time to time. If any charge increases, OurCloud will give the customer reasonable notice of the increase.

5.7 If the customer believes the invoice contains a mistake, the customer must advise OurCloud in writing within 21 days of the date of the invoice. The customer may only withhold payment of the disputed part of the invoice. If OurCloud agrees there has been a mistake on the invoice, OurCloud will apply the appropriate correction to the customers account, which will be displayed on the customers next monthly OurCloud invoice. If OurCloud finds that no mistake has been made, the customer must immediately pay the invoice without set-off or deduction and if payment is made past the due date the customer must also pay penalty fees for late payment be. OurCloud is not required to correct mistakes if notified after 21 days of the date of invoice.

5.8 OurCloud may at its discretion impose a credit limit on the customers account.

5.9 If the customer breaches any term of this agreement, and OurCloud incurs costs as a result, the customer will be liable for those costs and must reimburse OurCloud on demand.

5.10 Shipping + Handling charges for all items requiring delivery will be charged back to clients, with the exceptions where the relevant Letter of Agreement; Scope of Works; Proposal Document or Customer Contract expressly excludes the cost of delivery of hardware.

5.11 All pricing shown in quotations and on the Final Proposal are exclusive of GST.

5.12 All charges are shown in New Zealand Dollars (NZD) unless otherwise stated.

USING OURCLOUD’S SERVICES

6.1 The customer agrees that they will not use the Services or permit the Services to be used in any way which:

(a) breaks any laws or infringes anyone’s legal rights;

(b) could interfere with or damage OurCloud’s network, any other operator’s network, or another customer’s enjoyment of OurCloud’s services;

(d) could introduce anything (including any virus) that may harm OurCloud’s or any third party equipment or software.

6.2 The customer agrees that it will:

(a) comply with any reasonable restrictions imposed or instructions or directions given by OurCloud regarding the use of the Services;

(b) ensure that all information the customer gives OurCloud is correct. Where any information the customer has previously supplied to OurCloud changes (such as contact details) the customer must provide OurCloud with updated information as soon as possible;

(d) indemnify OurCloud against any legal action taken against it in connection with the customer’s use of the Services;

(e) not use the Services to spam, mail bomb, upload or publish any offensive or unlawful material, harvest information about others, create a false identity, transmit or upload material which breaches any third party right (including any intellectual property right), discriminates against any person or group, is false, inaccurate, misleading or deceptive or similar activity;

(f) keep confidential any password or PIN number which is used by the customer to access the Services. OurCloud recommends that the customer change these on a regular basis for security reasons. The customer must change their password or PIN number if asked to do so;

(g) authorise OurCloud to act on any verbal instructions the customer gives it in relation to the Services. The customer should notify OurCloud which of their staff are authorised to make changes to their account;

(h) allow OurCloud employees and contractors access as and when they reasonably require (and the customer must obtain any necessary consents to provide such access) if OurCloud needs to install equipment and carry out work at the customers premises. If the customer does not allow OurCloud employees and contractors to access their premises, the customer’s ability to use the Services may be adversely affected; and

(i) make sure nothing is connected to OurCloud’s network unless it has a Telepermit or is otherwise approved by OurCloud. This helps to ensure that the customer’s Mobile Device does not damage the network, although this does not mean that the network will always remain compatible with the customer’s Mobile Device.

MOBILE SERVICES

7.1 This clause applies if OurCloud provides mobile services to the customer.

7.2 If the customer downgrades or cancels the mobile pricing plan on any of their mobile Services, then the customer may be liable to pay administration and/or early termination charges as described in clause 15.2 below in respect of those mobile Services. If the customer upgrades their plan there will be no administration charge and the new plan will take effect from the 1st of the following month.

7.3 Mobile connections on a term commitment will automatically revert to the advertised open term pricing after the initial term has expired. At this time there will be the opportunity to revisit the pricing and term.

7.4 Mobile Voice Plans:

(a) If the customer’s mobile voice plan includes any bundled minutes and the customer does not use all of their bundle of minutes in any month the unused portion at the end of the month cannot be carried forward or redeemed. Bundled minutes do not include calls to international numbers, 0900 calls, operator assisted and directory related services and calls to special numbers.

(b) All mobile to land (national and international) and mobile to mobile calls made within New Zealand are calculated to the nearest second at 1/60th the appropriate per minute rate, then rounded up to the nearest cent. There is a one minute minimum charge for all calls.

(c) All international roaming calls, operator assisted calls and calls to 0900 numbers are charged on a minute plus minute basis.

7.5 Mobile Data and Mobile Group Data:

(a) Data used in each data session will be charged against the customer’s data plan allowance in whole 10KB packets, with part packets rounded up. Megabyte usage is based on the amount of data transferred (both uploading and downloading).

(b) If the customer’s mobile data or group data plan includes any bundled megabytes, and the customer does not use all of their bundle of megabytes in any month the unused megabytes at the end of the month cannot be carried forward or redeemed.

(c) All mobile to land (national and international) and mobile to mobile calls made within New Zealand are calculated to the nearest second at 1/60th the appropriate per minute rate, then rounded up to the nearest cent. There is a one minute minimum charge for all calls.

(d) All international roaming calls, operator assisted calls and calls to 0900 numbers are charged on a minute plus minute basis.

7.6 BlackBerry Data:

(a) Data used in each data session will be charged against the customer’s data plan allowance in whole 5KB packets, with part packets rounded up. Megabyte usage is based on the amount of data transferred (both uploading and downloading).

(b) If the customer’s BlackBerry plan includes any bundled megabytes, and the customer does not use all of their bundle of megabytes in any month the unused megabytes at the end of the month cannot be carried forward or redeemed.

7.7 OurCloud Share Mobile Plans:

(a) The OurCloud Share Mobile Plan is available to businesses with 5 to 300 mobile phones and data connections.

(b) Voice connections include unlimited NZ/AU minutes and texts together with a share of a selected (5GB to 300GB) shared data bucket.

(c) The size of the shared data bucket can be increased or decreased effective on and from the first day of the month following a change request.

(d) Data buckets can only be purchased in pre-defined sizes (e.g., 5GB, 10GB, 15GB) and the data bucket size in GB must be greater than or equal to the number of devices connected to the data bucket (e.g., where there are 8 connections the data bucket size must be at least 10GB).

(e) Voice and/or data connections can be added or removed effective on and from the day of the month the change was requested.

(f) Changes in pricing during a month will be reflected in the following month’s invoice.

(g) Pricing reflects a per voice and data connection and an amount per GB in respect of each shared data bucket (determined in each case on a monthly basis).

(h) There are no additional set up or change or cancellation fees or device subsidies provided as part of the OurCloud Share Mobile Plan.

(i) OurCloud roaming rates and subscriptions apply.

7.8 The customer acknowledges that the mobile Services use radio signals and that the mobile Services may be interrupted due to interference to those radio signals. Mobile Service quality will vary with geography and other factors.

7.9 The customer acknowledges that access to the mobile Services is dependant upon their equipment and hardware. If the products used by the customer do not support all of the mobile Services, OurCloud are under no obligation to ensure the customer’s access to those Mobile Services.

7.10 If at any time, or in respect of any period, the customer uses more than the allocated mobile Services that they have contracted to purchase/use for that time or period, the customer will be charged and must pay for any excess mobile Services used. Current excess rates as per table below:

Standard shared bucket excess data rate:		$200 per 10GB
Standard individual plan excess data rate:		25c per MB, or $75 per 2.5GB (whichever works out lower)
M2M / Jasper shared data excess rate:		10c per MB
M2M / Jasper individual data excess rate:		10c per MB

7.11 All mobile Services are subject to the fair use policy set out in this clause:

(a) The customer agrees that their use of the mobile Services must be fair, reasonable, and not excessive, as reasonably determined by OurCloud from time to time by reference to the average customer profiles and estimated customer usage of the OurCloud mobile Services.

(b) If the customer’s usage of the mobile Services materially exceeds estimated use patterns over any day, week or month (or other period of time as determined by OurCloud) or is inconsistent with normal usage patterns, then, in addition to potentially being liable for excess usage charges, the customer’s usage may be excessive or unreasonable.

(c) OurCloud’s mobile Services and mobile voice plans are offered for individual and private and personal use by the customer only.

(d) No mobile Service allows for activities aimed at making profit or reselling the mobile Service or using the mobile Services in an unfair or excessive way and any such use of the mobile Services is a breach of this agreement.

(e) For the avoidance of doubt, fair use of the OurCloud mobile Services excludes activities such as auto-dialling, continuously call forwarding, tele-marketing, call centres and use of Cellular Trunking Units (including SIM boxes and GSM gateways).

(f) If OurCloud is of the view that the customer’s use of the mobile Services is excessive or unreasonable, it may contact the customer to advise them. If the customer does not alter their usage of the mobile Services after a request to stop, OurCloud may, without further notice, charge the customer for the excessive and/or unreasonable element of the customer’s usage or suspend, modify or restrict use of the customer’s mobile Services or withdraw access to the mobile Services.

7.12 Unlimited mobile data plans are subject to the following;

(a) if the customers data usage goes above 40GB within the monthly billing period, throttling of the data speed may be implemented.

(b) if customer exceeds 40GB 2 months in a row, they may be moved off the unlimited plan, and onto a plan with a 40GB data limit.

(c) customers are prohibited from tethering or using mobile host spot capability. If customers do tether or hot spot, OurCloud reserves the right to block data use on the connection.

PROVISION OF MOBILE DEVICE

8.1 This clause applies if OurCloud provides the customer with a Mobile Device.

8.2 Upon delivery of the Mobile Device, risk in the Mobile Device will pass to the customer.

8.3 Upon payment of the charges for that Mobile Device or, in the case of a Mobile Device that OurCloud has agreed to provide the customer free of charge, upon delivery of the Mobile Device to the customer, title in the Mobile Device will pass to the customer.

8.4 If all or any part of the Mobile Device is under a manufacturers’ warranty, OurCloud will endeavour to give the customer the benefit of the warranty. Where this is not possible, OurCloud will hold the warranty on behalf of the customer. OurCloud will have no obligation to negotiate any warranty or indemnity on behalf of the customer with respect to any Mobile Device (or any associated software).

8.5 If the customer makes a claim on any warranty that is held by OurCloud on behalf of the customer, the customer must promptly return the defective Mobile Device to OurCloud with any accessories and all original packaging, together with a copy of the invoice and a written claim specifically identifying the defect(s) to the OurCloud offices at 256 Devon St East, New Plymouth, 4310.

8.6 If any part of the Mobile Device requires repair or replacement because it is lost or damaged and that repair or replacement is not covered by any warranty referred to in clause 8.4 above, or the customer places an order for an additional Mobile Device, then the charges for the repair or replacement and/or additional Mobile Device will be in accordance with OurCloud’s then current standard charges and the customer agrees to pay all such applicable charges.

8.7 The customer acknowledges that OurCloud is not responsible for any loss of data or other information that may occur in the course of or in connection with the repair of any Mobile Device. OurCloud recommends that the customer backs up all data on all item(s) of Mobile Device before those items are sent to OurCloud for repair or replacement.

8.8 The customer acknowledges that OurCloud is not under any obligation to ensure the continued availability of the make and model of any Mobile Device provided to the customer by OurCloud.

8.9 The customer agrees not to resell, lease or rent any Mobile Device to any other person.

8.10 The customer acknowledges that access to the mobile Services is dependant upon their equipment and hardware. If the products used by the customer do not support all of the mobile Services, OurCloud are under no obligation to ensure the customer’s access to those Mobile Services.

8.11 The customer must not remove any trademarks or logos from any part of the Mobile Device.

8.12 All SIMcards belong to OurCloud or its service providers and the customer may not sell, assign, transfer, encumber or otherwise deal in any SIMcard. If the customer fails to return the SIMcard within 30 days after disconnection, OurCloud may charge you for the SIMcard.

8.13 MobiPay:

(a) Where the customer elects to purchase a Mobile Device using OurCloud’s MobiPay scheme, the following provisions will apply.

(b) The purchase price for the Mobile Device will be payable in equal consecutive monthly instalments over 24 months.

(c) An administration fee equal to 10% of the purchase price will be payable where the purchase price is paid early provided that this administration fee will not be payable where the customer wishes to update its Mobile Device as contemplated in paragraph (g) below.

(d) In order to qualify for MobiPay, each Mobile Device purchased must have a corresponding mobile connection.

(e) Mobile Devices can be transferred to another connection but the customer must pay OurCloud an administration fee of $50.00 plus GST per transfer.

(f) If a customer wishes to cancel a connection, they must first pay the outstanding balance of the purchase price owing on the Mobile Device, together with an administration fee equal to 10% of the purchase price for the associated Mobile Device.

(g) Customers can update/purchase new Mobile Devices from time to time provided that any outstanding purchase price owing on earlier devices is first paid in full.

INTERNET SERVICES

9.1 This clause applies if OurCloud provides internet services to the customer.

9.2 If the customer downgrades or cancels the plan on any of their internet Services, then the customer may be liable to pay administration and/or early termination charges as described in clause 15.2 below in respect of those internet Services. If the customer upgrades their plan there will be no administration charge and the new plan will take effect from the 1st of the following month.

9.3 OurCloud may without notice to the customer remove any emails that remain on their servers for more than 90 days. The customer is responsible for downloading from OurCloud’s email server to the customer’s computer any email that they wish to keep.

9.4 The customer must not knowingly transmit any virus or other disabling feature or use the Services in a manner which is likely to or is intended to damage or compromise the security of OurCloud’s network or anyone else’s network.

9.5 The customer must use the internet services in a reasonable and responsible manner and only use the internet services for the purposes that they are provided for.

9.6 The customer must not have more than one connection to the Service using the customer’s user ID at any time. If for any reason the customer does have simultaneous connections OurCloud reserves the right to charge the customer $5.00 per hour (or part hour) for each additional connection.

9.7 If at any time, or in respect of any period, the customer uses more than the allocated internet services that they have contracted to purchase/use for that time or period, the customer will be charged and must pay for any excess internet services used.

9.8 OurCloud is not liable for any inaccurate, illegal or offensive information which may be obtained from the internet from the customer’s use of the Services.

9.9 OurCloud is not liable for any viruses or other harmful code that the customer may download via the internet using the Services.

9.10 The customer will be responsible for protecting the customer’s computer against any virus, unauthorised access or spam and to the extent permitted by law, OurCloud accepts no liability in relation to any virus, unauthorised access or spam experienced by the customer.

9.11 The customer will indemnify OurCloud against all liability, losses and costs that OurCloud incurs:

(a) through the customer’s failure to do any of the above;

(b) through the customer’s failure to perform any other obligation that it may have under this agreement; or

are subject to the fair use policy set out in this clause:

(a) The customer agrees that their use of their internet service must be fair, reasonable, and not excessive, as reasonably determined by OurCloud from time to time by reference to the average of any claim made against OurCloud by a third party as a result of the customer’s use of the internet services, including as a result of material that the customer generates or disseminates by using the internet services.

9.12 All internet services customer profiles and estimated customer usage of the OurCloud data Services.

(b) If the customer’s usage of the internet services materially exceeds estimated use patterns over any day, week or month (or other period of time as determined by OurCloud) or is inconsistent with normal usage patterns, then, in addition to potentially being liable for excess usage charges, the customer’s usage may be excessive or unreasonable.

(d) No internet service allows for activities aimed at making profit or reselling the internet service or using the internet service in an unfair or excessive way and any such use of the internet service is a breach of this agreement.

(e) If OurCloud is of the view that the customer’s use of the internet services is excessive or unreasonable, it may contact the customer to advise them. If the customer does not alter their usage of the internet services after a request to stop, OurCloud may, without further notice, charge the customer for the excessive and/or unreasonable element of the customer’s usage or suspend, modify or restrict use of the customer’s internet services or withdraw access to the internet services.

9.13 Internet speed:

(a) Downstream and upstream speeds are based on a theoretical maximum, and actual speeds will be affected by various factors including NZ and overseas networks, the particular modem and computer technology, internal wiring and other environmental factors. Speeds will vary depending on how many people are on the network at the same time both in the customers premises and in general on the Internet. This is also true for overseas networks when accessing content, such as websites or streaming video.

(b) Content such as web pages and videos are stored on ‘content servers’ so the customer can access them via their internet connection. Content servers within New Zealand and overseas can reduce the rate (bandwidth) at which access to their content available (for instance, when they are very busy), this affects the time it takes to download content and thus the users internet speed.

(c) If connecting via Wi-Fi, the connection can be impacted by environmental factors like other wireless devices in the premises (such as mobile or digital phones) and even a neighbours’ Wi-Fi connection.

(d) The speed capacity of the devices the customer is connecting with may be a limitation, for instance the age of the WiFi adapter. Other hardware and software components can also limit the processing of bandwidth and thus the speed.

(e) The most reliable connection and faster speeds will be achieved by connecting devices directly to the modem via high-speed Ethernet wiring instead of using Wi-Fi. For example, a Cat5e is a high-quality copper cable, designed to deliver Ethernet standard services over short distances at speeds of up to 1Gbps.

9.14 OurCloud may intercept any communications of the customer for the purposes of complying with the Department of Internal Affairs’ Digital Child Exploitation Filtering System, or for the purposes of complying with lawful authority and in continuing to use the OurCloud internet services, the customer consents to this.

DATA SERVICES

10.1 This clause applies if OurCloud provides data services to the customer.

10.2 Implementation of a data solution will be project managed through to completion. It is expected the customer’s IT department or IT contractor will provide the necessary resources to work with OurCloud during the project in order to ensure a timely and seamless implementation.

10.3 Although initial feasibility results may indicate the data service is available at a particular speed, it is possible that upon physical installation the speed anticipated or quoted may not be available. If this is the case then OurCloud may need to revisit the product and pricing and renegotiate the proposed solution.

10.4 Some data services installations are reliant on existing cabling from a third party telecommunications company’s demarcation point (often in basement or cabling room of building) through to the desired termination/delivery point. If this building cabling does not exist or is not of sufficient quality, the customer may be required to cover the cost of new building cabling to the desired termination/delivery point.

10.5 Data solutions with routers will include a managed router at each site and initial configuration of each router. Additional router configuration required after initial installation will be charged at $150 + GST per hour.

10.6 All Local Area Network configuration and Internet security, including supply of a suitable firewall appliance, is expressly the customer’s responsibility.

10.7 Managed router(s) will be configured and then sent to the customer’s site. Either the customer or the customer’s nominated IT contractor shall plug the router in to the pre-installed, labelled jack point. If the customer does not wish to do this, an onsite installation can be arranged for an additional $150 + GST per site.

10.8 In the unlikely event of a faulty router, the customer shall inform OurCloud immediately and return the faulty router. OurCloud will arrange for a replacement router to be configured and sent out via courier as quickly as is commercially practicable.

10.9 The OurCloud SIP Trunk product has been tested with most leading PBX products. However OurCloud does not guarantee compatibility to any specific product or future software release. It is the responsibility of the PBX vendor to perform compatibility testing. OurCloud will assist where it considers it appropriate with this testing.

10.10 OurCloud takes all reasonable precautions to ensure that the SIP Trunk solution is secure, but as the security of the PBX is beyond their control, OurCloud takes no responsibility if the PBX is compromised and fraudulent calling is generated.

10.11 OurCloud SIP Trunks are not recommended for services such as Eftpos, faxing and alarm monitoring. OurCloud can arrange a separate analogue phone line for these services.

10A. ULTRA-FAST BROADBAND

10A.1 This clause applies if OurCloud provides ultra-fast broadband services to the customer.

10A.2 The customer agrees that in using the ultra-fast broadband service, they will be bound by these terms and the terms of their Local Fibre Company’s End User Terms (which can be found at https://www.crownfibre.govt.nz/crown-partners/). The Local Fibre Company End User Terms relate to, amongst other things, the provision (including installation) and use of that part of the Local Fibre Company’s network which is located on the customer’s premises.

10A.3 The customer must pay for the costs of installation of ultra-fast broadband. On the day that ultra-fast broadband is to be installed, the customer will need to be present to meet with the Local Fibre Company’s technicians who will advise what is required for installation and the costs involved.

10A.4 In order to install the ultra-fast broadband at the customer’s property, land excavation may be required. The extent of restoration will depend on the policy of the Local Fibre Company. Generally, the Local Fibre Company will reinstate like for like, e.g. concrete where concrete has been used, but the Local Fibre Company do not guarantee to match surface finish and reinstatement will be limited to the area where the trench has been dug. The customer will be responsible for any further costs associated with the additional restoration.

10A.5 The following equipment will be installed at the property to allow ultra-fast broadband services to be used:

(a) The External Termination Point, which will remain the property of the Local Fibre Company;

(b) The Optical Network Terminal, which will remain the property of the Local Fibre Company; and

10A.6 If the customer changes to ultra-fast broadband, OurCloud cannot guarantee that the customer will be able to move back to ADSL Broadband. Any change in service may be subject to installation charges and an early termination fee will apply if the customer terminates before completion of the minimum contract period.

10A.7 Initially, the existing copper connection will remain in place for the provision of voice services. The customer agrees that they will migrate to a fibre based service as soon as it is available. At the time it is available, OurCloud will provide the customer with a minimum of 30days’ notice to the commencement of the migration process. A technician will need to visit the customer’s premises to carry out the work, which may require internal access to the customer’s premises. A suitable time will need to be scheduled for the technician to visit the premises. The fibre voice service is reliant on the ONT having power to it and in the event of a power cut, the fibre voice service (and broadband) will no longer work. If the customer is reliant on their phone services for medical or important applications (e.g. emergency services) they should consider whether a fibre based service is appropriate to their needs. OurCloud does not guarantee that the fibre voice service will support all models of low speed analogue device (for example: home alarms, personal medical alarms, low speed modems, sky set top boxes, faxes, low speed modems, eft-pos). It is the customer’s responsibility to contact their relevant service provider to find out whether such services are compatible with fibre. The customer should not sign up for ultra-fast broadband if their provider cannot guarantee compatibility. OurCloud is not liable to the customer in relation to the foregoing.

10A.8 DigiMax UFB Plans are subject to the following;

(a) DigiMax enhanced Restore SLA is based on following: If fault is reported to OurCloud, troubleshooting completed, and fault lodged with fibre supplier by Midday – service restored by 7pm same day, If fault is reported to OurCloud after midday – fault restored by midday the following day.

(b) DigiMax enhanced restore SLA is currently only applicable in Chorus UFB areas: Auckland, Wellington, Rotorua, Taupo, Gisborne, Hastings, Palmerston North, Masterton, Blenheim, Timaru, Dunedin, Invercargill.

10B. MOVING ADDRESS

10B.1 This clause applies if the customer is moves address and OurCloud provides data services and/or ultra-fast broadband services to the customer.

10B.2 The customer shall give OurCloud notice in writing at least 3 months prior to the moving date, advising the new address and the moving date. If OurCloud is able to continue providing the data services and/or ultra-fast broadband services, it will endeavour to ensure that the data services and/or ultra-fast broadband services will be available at the new address on the moving date.

10B.3 If the customer fails to provide OurCloud with sufficient notice of the moving date, OurCloud may be required to implement interim services to ensure the customer can access data services and/or ultra-fast broadband services at the new address on the moving date. The customer shall pay any additional costs incurred by OurCloud for providing the interim services.

10B.4 If a customer moves address within 12 months of installation of the data services and/or ultra-fast broadband services, the customer shall pay an additional ‘early move fee’, being 75% of the remaining charges of the first 12 months of the fixed term contract.

10B.5 If a customer moves address and the data services and/or ultra-fast broadband services during the initial fixed term contract the customer shall be required to pay for any additional costs OurCloud may incur from network operators.

10B.6 If the data services and/or ultra-fast broadband services that the customer is currently receiving are not available at the new address, OurCloud will provide an alternative solution for the customer, which may require that the customer enter into a new contract and minimum term.

10B.7 The customer must pay for any installation costs of data services and/or ultra-fast broadband services at the new address.

10C. WIRELESS BROADBAND

10C.1 This clause applies if OurCloud provides wireless broadband services to the customer

10C.2 OurCloud Wireless Broadband requires a specific OurCloud Wireless Broadband Modem. This will be supplied with the service.

10C.3 OurCloud does not guarantee that the service can be supplied at a particular location.

10C.4 If you use all your plan data, you will be charged $20 per additional 10GB block or part thereof, up to a maximum of 50GB. At this point the connection will be disabled until the end of the month, with no option to purchase more data.

10C.5 If your OurCloud Wireless Broadband service is disconnected for any reason, we cannot guarantee you will be able to connect back to a fixed line broadband service, particularly if there are capacity issues in your area. If you have an existing broadband connection with another provider, you are responsible for arranging for disconnection of this service.

10C.6 OurCloud Wireless Broadband is only available in certain 4G coverage areas. 4G coverage is not available everywhere.

10C.7 The OurCloud Wireless Broadband Modem contains a SIM card. You may not use this SIM card in any other device. It remains our property and you must return it to OurCloud on reasonable request.

10C.8 You may not use your OurCloud Wireless Broadband Modem to receive the OurCloud Wireless Broadband service at any other location other than the installed location. If you are moving, please contact us. If you are moving to a location within our OurCloud Wireless Broadband coverage area, you may be able to continue to use the service. If you are moving to a location outside our current OurCloud Wireless Broadband coverage area, you will need to end your contract with us. Early termination charges may apply.

10C.9 If we become aware that you are using your OurCloud Wireless Broadband Modem at a location other than the installed location we reserve the right to withhold, suspend, disconnect, or restrict your OurCloud Wireless Broadband service without notice. The reason we retain this right is that we need to be able to manage the network to ensure that all customers using the network receive a reliable and consistent service.

10C.10 If you choose to sign up with OurCloud Wireless Broadband on a term contract, and your service is disconnected before the completion of that minimum contract period, you will be charged an early exit fee of $199.

10C.11 The OurCloud Wireless Broadband Modem requires mains power. In the event of a power failure, service will not be available, including access to emergency services.
10C.12 If you choose to change to another broadband technology (e.g. ADSL), an availability check will need to be done for your address. OurCloud does not guarantee availability of an alternative broadband technology at your address.

10C.13 Any unused data within a monthly data allocation will not be carried forward to the following month.

10C.14 Upstream and downstream speeds are variable, and actual speeds will be affected by various factors including NZ and overseas networks, your modem and computer technology, internal home wiring and other environmental factors.

TELEPO CONTRACT TERMS & CONDITIONS

(a) New 24 Month Bundled (Inclusive) calling and Open Term pricing is valid from 1st September 2018 and applies to re-signs or new contracted clients only.

(b) On expiry of 24 month contract the pricing will automatically be moved to Open Term and Pay As You Go rates.

(d) 75% Early Termination Fees apply.

SUPPLY OF EQUIPMENT

12.1 OurCloud or a third party may from time to time supply Equipment to the customer in connection with the Services. Unless agreed otherwise, the customer will have no ownership rights to any equipment supplied by OurCloud.

12.2 The customer must not damage or interfere with the Equipment.

13.3 If the Equipment is lost or damaged while located on the customer’s premises, the customer shall pay the charges of OurCloud for repairing or replacing it as required.

13.4 Upon termination of this agreement, the customer shall return all Equipment to OurCloud within 30 days or the customer shall pay the cost of the Equipment, as determined by OurCloud.

PHONE NUMBERS

14.1 Unless OurCloud has agreed otherwise, all addresses, phone numbers, electronic addresses and other codes allocated to the customer remain the property of OurCloud.

14.2 OurCloud may be required by law or for operational reasons to change the phone number(s) or electronic addresses allocated to the customer. If this is necessary, OurCloud will give the customer as much notice as reasonably possible of any such change.

TERMINATION AND SUSPENSION

15.1 If there is no fixed term contract in place or the fixed term has expired, OurCloud may cease providing any Service by giving the customer not less than 30 days’ written notice.

15.2 The customer may give up any Service or terminate this agreement at any time by giving OurCloud not less than 30 days’ notice in writing and the customer must pay OurCloud (in each case within 30 days of the termination of the relevant Service):

(a) the charges throughout the 30 day notice period even if the fixed term has expired; and

(b) for any costs that OurCloud has paid (if any) for transferring the customer from one telephone company to another if the customer terminates any Service within a period of three months or less from the commencement of the Services; and

(c) if any promotional incentives were provided as part of the contract, they must be repaid in full. Examples of this could be free month(s), sign-on credits, free installation and other similar incentives.

termination of Services other than mobile, data and cloud services

(d) an early termination fee of 60 day’s normal charges for all terminated services (excluding mobile, data and cloud services, which are dealt with below), including the current month.

termination of data services

(e) for an early cancellation of a data connection, OurCloud’s early termination fee of 75% of unpaid charges for the remainder of the term.

termination of cloud services

(f) for an early cancellation of cloud services, OurCloud’s early termination fee of 75% of unpaid charges for the remainder of the term.

termination of mobile services

(g) for an early cancellation of a mobile connection, OurCloud’s early termination charges in accordance with the table below:

	Remaining on contract term
Monthly spend* $0 – $50 $50 – $100 $100 – $200 $200 +	1-6 months $300 $400 $500 $600	7-12 months $600 $800 $1,000 $1,200	13-24 months $900 $1,200 $1,500 $1,800

*Monthly spend is calculated as the greater of either the monthly plan rental or the average spend per mobile connection from up to three months previous billing.

(h) for plan downgrades within the contract term, OurCloud’s plan downgrade charges are calculated as:

Previous monthly spend less new monthly spend, multiplied by months remaining multiplied by 50%

(i) if any additional subsidies/credits were provided as part of the mobile contract, they must be repaid, pro-rata to the months remaining in the minimum term. Additional mobile subsidies are calculated as the subsidy provided less the advertised subsidy at the time of purchase.

(j) for early contract resigns, OurCloud’s resign device subsidy reductions are applied in accordance with the table below:

Remaining on contract term
13 or greater months
7 to 12 months

4 to 6 months

0 to 3 months

Reduction of resign device subsidy
No contract resign permitted
Monthly spend multiplied by months remaining multiplied by 40%
Monthly spend multiplied by months remaining multiplied by 20%
No device subsidy reduction applies

(k) any early termination charges that are payable under the Final Proposal; and

(l) any outstanding charges and other monies payable by the customer for the Services.

15.3 OurCloud may, without liability to the customer, terminate the provision of any Service and shall endeavour to provide the customer with reasonable notice in writing if:

(a) OurCloud determines that the relevant Service is not commercially viable; or

(b) a third party service provider or carrier does anything that prevents OurCloud from supplying that service; or

(d) OurCloud decides to withdraw the relevant Service from general availability.

15.4 OurCloud may terminate this agreement, or the provision of any Service to the customer, immediately if:

(a) the customer breaches any term of this agreement; or

(b) OurCloud reasonably believes that the customer has supplied incorrect or misleading information; or

(c) the customer (or the directors or principals) goes into liquidation, bankruptcy or receivership (or it appears that any of these events are likely to happen); or

(d) the customer has a receiver or statutory manager appointed over any or all of their assets; or the customer is removed from the Companies Register (other than as a result of a solvent amalgamation), dissolved; or

(e) the customer dies.

15.5 If this agreement is terminated for any reason the customer must pay for the Services provided up to the date of termination. If the customer has prepaid for the Service, no refund is payable to the customer on termination unless OurCloud agree otherwise. Any remaining hardware subsidy for mobile services shall be forfeited upon termination (for any reason) of the agreement.

15.6 OurCloud may suspend provision of Services to the customer without liability if:

(a) OurCloud reasonably believes that the Services are being used (or have been or will be used) by the customer in violation of this Agreement;

(b) the customer does not cooperate with OurCloud’s investigation of any suspected violation of this Agreement;

(c) OurCloud believes that Services provided to the customer have been accessed or manipulated by a third party without the customer’s consent or in violation of this Agreement;

(d) OurCloud reasonably believes that suspension of the Services is necessary to protect OurCloud’s network, OurCloud’s other customers, or others in general;

(e) a payment for the Services is overdue by more than thirty (30) days;

(f) the continued use of the Services by the customer may adversely impact the Services or the systems or content of OurCloud or any other OurCloud customer;

(g) OurCloud reasonably believes that the use of the Services by customer may expose OurCloud, its affiliates, or any third party to liability; or

(h) suspension is required by law.

OurCloud will give the customer reasonable advance notice of a suspension under this clause 14.6 and a chance to cure the grounds on which the suspension are based, unless OurCloud determines, in OurCloud’s reasonable commercial judgment, that either suspension on shorter or contemporaneous notice or immediate suspension without notice is necessary to protect OurCloud, its other customers, or any third party from operational, security, or other risk or the suspension is ordered by a court or other judicial body. If the suspension was based on the customer’s breach of the customer’s obligations under this Agreement, then OurCloud may continue to charge the customer the fees for the Services during the suspension, and may charge the customer a reasonable reinstatement fee upon reinstatement of the Services, which shall be at OurCloud’s sole discretion.

CONSUMER GUARANTEES ACT AND LIMITATION OF LIABILITY

16.1 The customer agrees that, if they are using the Services for the purposes of a business, the Consumer Guarantees Act 1993 statutory guarantees do not apply to their connection or the Services to the maximum extent permitted by the legislation. The customer agrees (whether the customer is using the services for the purposes of a business or otherwise) that OurCloud excludes and do not have any liability of any kind (whether in contract tort or otherwise) to the customer or anyone claiming through the customer, relating to any economic loss, loss of profits or revenue, loss of data, lost business or missed opportunities, wasted expenditure or savings the customer might have had or any form of indirect or consequential loss or damage whatsoever arising from:

(a) the customer’s connection to the OurCloud network or the content or supply of any Services;

(b) the customer’s use of the Mobile Device;

(c) the failure, interruption or delay in the supply of, any Services or any part of them or any negligence in this regards;

(d) the fitness of all or any of the Services or Equipment for any particular purpose;

(e) errors in or omissions from any directory listing;

(f) the inaccurate or incomplete transmission of any call or any email;

(g) any other matter which relates to this agreement.

16.2 OurCloud’s liability to the customer under or in connection with this agreement, for any loss or damages which the customer incurs as a direct result of OurCloud’s failure to meet any of it’s obligations under this agreement or for any negligence by OurCloud in relation to the supply of the Services, will be limited to the value of 3 average months’ Services used by the customer under this Agreement for all events occurring in any 12 month period.

16.3 If the customer uses another service provider’s services during any period when the Services are not fully operational, OurCloud is not liable to pay or reimburse the customer for any amount the customer may be charged by that service provider.

16.4 No other network operator and/or third party supplier (including their officers, employees, contractors and agents) will be liable to the customer for loss or damage of any kind arising from the customer’s use of the Services. This clause creates a right and benefit that other network operators and/or suppliers can enforce as a defence to any claim.

16.5 Apart from the warranties expressly given to the customer in this agreement, all other warranties, express or implied, are excluded to the extent permitted by law.

PRIVACY

17.1 The customer may at times supply OurCloud with personal information, for example, when the customer applies to become a customer of OurCloud. OurCloud may also obtain personal information from the customer’s use of the Services.

17.2 The customer agrees that OurCloud may:

(a) use the customer’s personal information and, where OurCloud deems appropriate, disclose it to third parties if this is required for it to provide the customer with the Services; for credit checking and collection; and/or to communicate with the customer about OurCloud’s current and future services;

(b) share information about the customer and their use of Services with other third party suppliers to provide the Services and to comply with interception, capability, security, fraud investigation co-operation or emergency response requirements; and

(c) OurCloud’s third party suppliers may use information about the customer and their use of the Services for the purposes described in (b) above.

17.3 Any personal information OurCloud collects is kept at their offices at Level 3, 8Nugent Street, Grafton, Auckland. The customer is entitled to see any information OurCloud holds about them and to request that any incorrect information be corrected.

17.4 OurCloud may record or monitor calls between it and the customer to verify information and for staff training purposes.

CHANGING THESE TERMS/VARIATIONS TO CUSTOMERS CONTRACT

18.1 OurCloud may vary these terms from time to time and will endeavour to give the customer 21 days’ notice. OurCloud will inform the customer of any variation to the terms and conditions either by email, post, notification in major daily newspapers or via OurCloud’s website. The latest terms and conditions are available for viewing on OurCloud’s website www.ourcloud.nz

18.2 OurCloud may notify the customer of any variation or update to their contract by email. Upon OurCloud receiving acceptance of the variation to the contract from the customer, the customer’s contract shall be updated.

SERVICES PROVIDED BY THIRD PARTIES OVER THE NETWORK

19.1 OurCloud takes no responsibility for the accuracy, completeness or currency of any content or material or services that the customer may access or have provided to the customer by a third party through the Services or for any charges that the customer may incur by their use of such content, materials or services.

19.2 OurCloud are not responsible for:

(a) ensuring that the information the customer accesses or makes available through using the Services will be private or secure or free from viruses or other harmful things;

(b) any transactions the customer enters into through use of the Services or any dealings between the customer and any advertisers or other third parties using the Services or the customer’s participation in any promotions;

(d) fixing any faults in any part of the Internet beyond OurCloud’s network.

NOTICES

20.1 If the customer wishes to notify OurCloud of anything the customer can do so by emailing support@OurCloud.nz or by calling 06 927 3044. OurCloud may require the customer to confirm in writing any advice given over the phone.

20.2 If OurCloud wishes to communicate with the customer or notify them of anything it may do so by post, phone, facsimile or email to the last known address or number held for the customer.

PERSONAL PROPERTIES SECURITY ACT 1999 (PPSA)

21.1 The customer may require OurCloud to provide certain equipment to them to enable the customer to use the Services.

21.2 If OurCloud provides any equipment to the customer, the customer agrees that:

(a) they will not sell, lease, dispose of, or allow any other person to take a security interest in the equipment; and

(b) OurCloud can register a financing statement on the Personal Property Securities Register (PPSR) to reflect their interest in the equipment.

21.3 Where OurCloud exercises its right to register a financing statement, the customer also agrees to:

(a) provide such information as OurCloud reasonably requests to enable it to register a financing statement on the PPSR; and

(b) inform OurCloud immediately in writing if the customer intends to change their name, address or contact details.

21.4 The customer waives its rights under sections 114(1)(a), 116, 117, 119, 120(2), 121, 125, 126, 127, 129, 131, 132, 133, 134 and 148 of the Personal Property Securities Act.

FORCE MAJEURE

22.1 OurCloud will not be liable for any delay or failure of the Services or for any loss or damage from such delay or failure to the extent that it was caused, in whole or part, by an act of God, war, terrorism, civil disobedience, riots, strike, industrial stoppage or unrest, fire, volcanic eruption, earthquake, shortage of suitable labour, materials, equipment or energy or any other event

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