Agreement

This Agreement is made between Tomizone New Zealand Limited and the person named as the Customer on the Tomizone Order Form.

This Agreement is comprised of:

• The General Terms and Conditions that will apply in all cases; and
• The relevant Specific Terms and Conditions, which shall apply only to the extent that such services are ordered by you in the Order Form.

In the event of any conflict or inconsistency the relevant Specific Terms and Conditions shall prevail to the extent of the conflict or inconsistency.

Part 1.   GENERAL TERMS AND CONDITIONS

1. DEFINITIONS AND INTERPRETATION

In this Agreement, unless the context indicates otherwise:

“Agreement” means the agreement comprised of:

• Order Form;
• These General Terms and Conditions that will apply in all cases; and
• The Specific Terms and Conditions that apply only to the extent such services are ordered by you in the Order Form.

“After Hours Rates” means the after-hours rates set out on our website from time to time.
“Business Day” means any day excluding a Saturday, Sunday or any public holiday when trading banks are not open for general banking business in Auckland, New Zealand or the place where you have your registered office.
“Business Hours” means the hours between 08:30am and 5:00pm on Business Days.
“Commencement Date” means the date this Agreement is entered into.
“Customer”, “you” and “your” means the person(s) or legal entity named as such on the Order Form.  If there is more than one Customer it means each of you separately and all of you jointly and severally.
“Equipment” means the equipment and software (if any) set out on the Order Form.
“Fees” means the fees set out in the Order Form.
“GST” means goods and services tax under the Goods and Services Tax Act 1985.
“Guarantor” means the person names as such in the Order Form.
”Initial Term” means the minimum term of the Agreement as stated on the Order Form.
“Install Date” means the install date as set out on the Order Form.
“Lease2Own Option” means the option for the Customer to lease the Equipment with an option to purchase the Equipment at the end of the Term.
“Order Form” means the form setting out the services and/or equipment to be provided by TNZ to you.
“PPSA” means the Personal Property Securities Act 1999.
“Premises” means the place where the Equipment and/or Service has been located and/or where the Software has been installed.
“Renewal Term” has the meaning given to that term in clause 2.2.
“Security Interest” has the meaning given to that term in the PPSA.
“Service” or “Services” means the services set out in the Order Form and any other services agreed between you and us from time to time.
“Software” means any software contained on the Equipment or relating to the Services.
“Standard Rates” means the standard rates set out on our website from time to time.
“Term” means the Initial Term plus any Renewal Term.
“Tomizone” or “TNZ” means Tomizone New Zealand Ltd, its subsidiaries, operating divisions, assignees, successors and any subcontractor engaged by TNZ to provide the services.
“Warranty Period” means the warranty period as set out in the Order Form.
Interpretation: In this Agreement, unless the context indicates otherwise:

• References to assignment will include reference to sales, assignments, transfers, mortgages, pledges, charges or any other dispositions or alienations;
• Expressions defined in the main body of this Agreement have the defined meaning in the whole of this Agreement;
• Clause and other headings are for ease of reference only and will not affect the interpretation of this Agreement;
• Any obligation not to do anything will be deemed to include an obligation not to suffer, permit or cause that thing to be done;
• References to parties are references to parties to this Agreement and includes the permitted assignees, transferees and successors of the parties;
• References to the singular will include the plural and vice versa;
• References to clauses are references to clauses of this Agreement; and
• References to any statutory provision will include any statutory provision which amends or replaces it and any subordinate legislation made under it.

2. TERM

1. This Agreement will commence on the Commencement Date and continue for the Initial Term.
2. At the end of the Initial Term this Agreement will automatically extend on the same terms for subsequent terms of twelve (12) months each (each a “Renewal Term”) unless you deliver notice to us within the final 3 months of the Initial term or then current Renewal Term (as applicable) terminating this Agreement at the end of the Initial Term or the then current Renewal Term (as applicable).

3. PRICE, PAYMENT, DISPUTE, AND/OR DEFAULT

1. You agree to pay all Fees by the payment date set out in the invoice sent to you.  Unless otherwise stated, all Fees are exclusive of GST.
2. All payments are to be made in the manner set out in the Order Form. All such payments shall be made without set-off, deduction or withholding.
3. You acknowledge that where a deposit is required by TNZ such deposit is not refundable for any reason and you forfeit the deposit in the event of terminating this Agreement, regardless of the timing or reason of such termination.
4. You shall pay us interest at the default rate of 2% per month calculated on a daily basis from (and including) the date payment was due in accordance with this Agreement to (but excluding) the date on which payment is made to us in full in cleared funds. Default interest payable under this clause shall accrue both before and after judgement, shall be payable on demand and shall compound and be added to the amount owing on a monthly basis.
5. You must pay or reimburse us on demand for:
   1. All taxes (excluding income tax), stamp duties and other duties (including financial institutions duty) payable or that may become payable in connection with this Agreement or with any supply, payment, receipt or other transaction arising under this Agreement;
   2. Our reasonable costs, including out of pocket expenses incurred by us, in complying with any demand made by you under section 162 of the PPSA;
   3. Any costs or expenses which we may reasonably incur in retaking, or attempting to retake, possession of any Equipment; and
   4. Any costs or expenses (including legal costs and expenses on a full solicitor-own client basis) reasonably incurred by us in connection with the protection of any Equipment or the enforcement or attempted enforcement of our rights under this Agreement.
      1. Late payment fees, default fees, repossession/field visit fees, assignment/variation fees, multiple refund fees and monthly invoice fees may also apply (in each case, at the rates set out on our website, which may be amended by TNZ on 30 days’ notice in writing).
      2. All additional fees are exclusive of GST and are payable on demand.
      3. TNZ reserves the right to vary the fees from time to time by giving at least 30 days’ written notice to you (including on our website). The variation shall take effect from the date nominated in the notice.
6. You must notify us within 14 calendar days of receipt of an invoice if you dispute it, telling us why. If only part of it is disputed, you must pay the undisputed amount. We will work with you to resolve your dispute and will not exercise our rights under Sections 3.4 or 3.5 if your dispute is reasonable and you are co-operating and acting in good faith to resolve it.

4. OWNERSHIP OF EQUIPMENT – Lease or Rental

1. Except as otherwise agreed in writing by TNZ all Equipment will remain our property at all times. You only have a right to use the Equipment for the Term and no right to purchase the Equipment, unless you have written confirmation from TNZ or the Lease2Own Option applies to the relevant Equipment. You must protect and make clear to others our interest in the Equipment.
2. If the Lease2Own Option applied with respect to any Equipment, upon full payment of all monies payable and fulfilment of all terms and conditions at the expiry of the Term, you have the option of either requiring us to retake possession of the relevant Equipment or you may purchase the relevant Equipment upon payment of three months’ monthly rental fee for the relevant Equipment or such other amount as agreed between you and TNZ in writing.

5. DELIVERY, RISK AND USE OF EQUIPMENT

1. Delivery will be completed when the Equipment enters your possession and risk shall pass on delivery.
2. You must fully insure the Equipment from the time of delivery.
3. You must protect the Equipment, and not damage, deface, alter or tamper with it in any way. If the Equipment includes a SIM card, this may only be used with the Equipment supplied by TNZ and you must not alter it in any way. You will be liable for any additional costs of the SIM card, other than those relating to the Services provided by TNZ.
4. TNZ may charge you for the cost of repair or replacement in the event the Equipment is damaged, and for any liquid damage, abuse, pest infestation, electrical surges or any other issue excluding fair wear and tear. TNZ may replace or repair any part of the Equipment at its discretion and you are liable for any charges in this regard.
5. You must not part with the possession of the Equipment (other than for maintenance or repair with an authorised repair technician of our choice) in any way unless agreed by us in writing.
6. We may act in your name, or on your behalf, to take any steps we deem necessary to protect our interest in any Equipment.
7. You must get our consent before the location of the Equipment is changed.
8. You must only use the Equipment in the manner and for the purpose for which it was designed and in accordance with the manufacturer’s instructions. Opening any Equipment casing will be considered abuse and is strictly prohibited.
9. You must not purport to assign, sublet, bail, mortgage, pledge, grant a security interest in, sell, dispose of, or otherwise deal with the Equipment to any third party.
10. Replaced components become part of the Equipment once they have been exchanged for any reason.
11. If additional or different Equipment is provided to you, it will be on the same terms and conditions as contained in the Agreement and you must pay all additional Fees for that Equipment.

6. ACCESS TO PREMISES

1. TNZ and its upstream providers or partners have the right at any time during the Term, to enter the Premises to maintain, replace or remove any Equipment or equipment used for the provision of the Services.
2. TNZ and its upstream providers or partners may at any time and at their absolute discretion exchange any Equipment or equipment used at the Premises that is used for Services, for new equipment.
3. For as long as any amount due and payable by you to TNZ remains unpaid, you irrevocably authorises us and our servants and agents to enter into or onto the Premises, to search for the Equipment and take back possession.

7. SERVICES AND USE OF SERVICES AND EQUIPMENT

1. We agree to provide the Services to you with due care and skill and to a standard which could be reasonably expected from a service provider providing the same or similar services.
2. You agree to:

• • Use our Services for a lawful purpose only;
  • Follow our reasonable instructions about the use of any Service or Equipment;
  • Make sure all the information you give us is correct and complete (and promptly advise us of any changes).
  • Not use the Services or Equipment for any purpose that is defamatory, deceptive or misleading, or in a way that infringes any person’s intellectual property.
  • We require from time to time the ability to perform maintenance on our Equipment and Services. TNZ will endeavour to ensure you are notified in advance but reserves the right to undertake urgent remedial maintenance at any time and without notice.

8. PPSA

1. You acknowledge that this Agreement creates a Security Interest in the Equipment as security for your obligations to us under this Agreement and this Security Interest is registrable on the Personal Property Securities Register under the PPSA. You irrevocably authorise us to register a financing statement on the Personal Properties Security Register over any or all of our right, title and interest of, or in connection with, this Agreement.  You shall: (a) provide us with all such information and assistance as we may require to register a financing statement under the PPSA with respect to the Security Interest created by this Agreement and to perfect such Security Interest in the Equipment; and (b) indemnify us against any costs we incur in registering, maintaining or enforcing our Security Interest in the Equipment and exercising any of our rights under this Agreement or the PPSA.
2. You must sign and deliver any documents that we require to ensure that we have a perfected first ranking Security Interest in the Equipment under the PPSA.
3. You waive any right to receive a copy of a verification statement (as defined in the PPSA) under the PPSA and agree to the extent permitted by law that – (a) Additional Rights: pursuant to s107(1) of the PPSA, our rights set out in this Agreement apply despite s109 of the PPSA and are in addition to any rights that we may have under s109; (b) Non-Application:  where Part 9 of the PPSA applies, sections 114(1)(a), 133 and 134 of the PPSA will not apply; and (c) Waiver:  where Part 9 of the PPSA applies, you will have none of the rights referred to in sections 116, 120(2), 125, 129 and 131 of the PPSA and you waive your rights to object under section 121.

9. ASSIGNMENT

1. You may not assign your rights under this Agreement to any third party without our prior written consent, which we may grant or withhold at our absolute discretion. We may charge an additional fee to cover the administrative costs of assigning this Agreement (or any part thereof).
2. We may at any time assign or otherwise transfer to any party all or any part of its right and obligations under this Agreement and in that event (and subject to clause 3) the assignee or transferee should have the same rights against you and the Guarantor as it would have had if it had been a party to this Agreement.
3. We may assign this Agreement to a financier of ours at our sole discretion. Where such an assignment occurs, you agree and acknowledges that the financier shall take assignment of all rights of ours under this Agreement, but shall not take an assignment of any of our obligations to you under this Agreement or at law.

10. INSTALLATION, SERVICE, MAINTENANCE OF EQUIPMENT & SERVICE DELIVERY

1. We will endeavour to install the Equipment at the Premises on the Install Date however take no responsibility should this date not be met.
2. In the event that any Equipment needs to be installed, serviced or maintained we will carry out such installation, service and maintenance at a time during Business Hours.
3. All such works shall be performed with reasonable skill and care and in a workmanlike and professional manner. We may charge for services outside Business Hours at our After-Hours Rates.
4. You acknowledge and agree that all cutting, excavation, cable trenching, provision of 240 volt mains power connections, cable installations, interfacing with fire, heat or detection systems, any maintenance costs and lifting equipment, skips or any other items, minor building works including trenching, backfilling and restoration, provision of penetrations, making good, flashings, chasing, console and joinery work, provision of mounting brackets and foundation plinths and other works required to undertake the installation are not included in the pricing unless specified in this Agreement.
5. You agree to ensure that the Premises are at all times a safe working environment and (without limitation) will not contain asbestos or similar hazards.
6. Unless you have notified us in writing within 30 days of installation, you deem that the relevant Equipment has been installed to your specifications, or prior to this by signing an acceptance certificate, or acknowledgement of delivery.
7. Should you rent the Equipment, then we may elect whether any service should take place be by way of courier swap-out or an on-site visit. Should you require onsite service, this will be charged at the normal rates in place by TNZ.
8. We may substitute Equipment offered as part of the installation with technically equivalent or superior equipment provided you have been informed.
9. Should we be delayed in carrying out installation by delays caused by acts or omissions of you, your servants or agents, any contractors or consultants engaged by you or any head contractor or other party to which you have contracted, then we shall be entitled to claim the reasonable cost of the delay from you, and the amount shall be a debt due and owing to us.

11. SOFTWARE

1. If Equipment includes software, the Equipment will be supplied with a royalty-free, non-transferrable, non-exclusive license to use one copy of the “standard” software for the Term, in relation to that specific Equipment and subject to you complying with your obligations as set out in this Agreement.
2. Use of Equipment does not confer ownership rights in respect of any software that any Equipment may contain. You acknowledge and agree that TNZ owns the intellectual property in the software. You shall not make copies of software, modify, decompile, disassemble, decrypt, extract or otherwise reverse engineer the software.

12. INTELLECTUAL PROPERTY

1. You have no right, title or interest in any of TNZ’s trademarks, trade names and logos, including those items used by it under license.

13. WARRANTY

1. For the Warranty Period, TNZ agrees to provide the warranty set out on the Order Form (if any).Should there be no warranty noted on the Order Form then the Equipment or Services shall be provided on an “as is where is” basis.

14. EXCLUSIONS

1. Except as expressly stated in this Agreement, and subject to clause 5, TNZ gives no warranties as to the quality of the Equipment or Services or as to their fitness for any purpose, even if that purpose was made known to TNZ.
2. Without limiting the effect of clause 1, we do not warrant that the Equipment or Service will provide an uninterrupted or fault free service, and disclaim all liability in this regard. We reserve the right to temporarily suspend the Services or restrict access for planned and unplanned maintenance.
3. Should there be changes to the environment, by regulatory and/or changes to telecommunication or other third party regulatory bodies, then TNZ is not liable to upgrade the Equipment.
4. Subject to clause 5, all conditions implied under the Contract and Commercial Law Act 2017 or by trade usage or otherwise are expressly excluded from this Agreement and the supplies made under this Agreement to the maximum extent permitted by law.
5. These terms and conditions are subject to the provisions of the Consumer Guarantees Act 1993 (“CGA”) in all cases where you are a consumer and do not acquire the Equipment or Services for the purposes of business. Where you have acquired the Equipment or Services for business purposes the CGA does not apply.  In this clause 5 the terms “consumer” and “business” have the meanings given to them in the CGA.
6. Nothing in these terms is intended to have the effect of contracting out of the provisions of the CGA except to the extent permitted by that Act, and these terms are to be modified to the extent necessary to give effect to that intention.

15. LIMITATION OF LIABILITY

1. TNZ will not be liable to you, in any way related to this Agreement or the Equipment or Services, whether that liability arises in contract, tort (including negligence), equity, under statue or otherwise, for:

• Loss of profits or loss of revenue (in each case whether direct or indirect); or
• Any indirect, special or consequential loss or damage whatsoever (except in instances of fraud or wilful concealment).
  • Subject to clause 6, any claim which you may have against TNZ, whether in contract, tort or otherwise as a result of any defect in the Equipment or Services shall expire twelve months after the circumstances or events giving rise to the claim occur unless you notify us of the claim in writing before the expiry of that period.
  • Subject to clause 6, to the fullest extent permitted by law, our maximum liability under this Agreement for any reason shall be at our option limited to:
• the replacement or cost of replacement or re-supply of the relevant Equipment or Services with the same or equivalent Equipment or Services;
• the repair or cost of repair of the relevant Equipment; or
• the amount paid to us by you for the twelve month period prior to the event which gave rise to the claim occurring.
  • You indemnify us against:
• Any loss of or damage to or by the Equipment, however arising;
• Loss or liability for any death, injury or damage to any person or property arising directly or indirectly from the Equipment, its possession or use;
• Any loss suffered and any expense incurred by us as a result of any breach by you of this Agreement.
  • You acknowledge that no third party whose network or services we use to supply the Services to you (nor any officer, employee, contractor or agent of such third party) is in any way liable to you in connection with the Services. For the purposes of Part 2, Subpart 1 of the Contract and Commercial Law Act 2017, this clause is intended to confer a benefit which those third parties can enforce.
  • We will not be liable for any act or omission of any third party service provider that has not been engaged by us.

16. TERMINATION AND DEFAULT

We may terminate this Agreement immediately by written notice to you if you or any of the following occur:

• You default in the payment of any payment amount owed by you under this Agreement;
• You are in breach of any other term of this Agreement and such breach is not remedied within 7 days of the breach arising;
• You are in breach of any other agreement relating to or connected with this Agreement, the Equipment and/or Services, or any other Agreement with any member of the TNZ group of companies, and such breach is not remedied within 7 days of the breach arising;
• You breach any of the terms of the insurance policy in relation to the Equipment or it is refused or cancelled;
• You are unable to pay your debts as they fall due, or an application is made to adjudicate you bankrupt or an application or resolution is passed for your liquidation or winding up, or you are dissolved or struck off the New Zealand or Australian companies office register;
• A receiver, liquidator, statutory manager or administrator is appointed over all or any of your assets and income, or you enter into, or propose any composition or arrangement with your creditors; or
• Any act which you cause or permit threatens the safety, condition or safe keeping of the Equipment; or
• You cease to carry on your business or you repudiate this Agreement or your conduct indicates that you no longer intend to be bound by this Agreement; or
• You obtain any Equipment or Service by way of fraud or misrepresentation.
• Upon termination or expiry of this Agreement for any reason:
• You must return the Equipment in good working order and condition (fair wear and tear accepted) to us at your cost, to our registered office. If you fail to do so we may enter the Premises where the Equipment is located, and use reasonable force to do so, to enable us to take possession of the Equipment (including Software and related documents).
• You must immediately pay to us:
  • (i)            Any payments due and payable up to the date of termination;
  • (ii)           The balance of any future payments which would have been payable up to the end of the Initial Term or then current Renewal Term (as applicable);
  • (iii)          The market value of any Equipment if it is not returned (or not returned in good working order and condition (fair wear and tear accepted));
  • (iv)         Any and all costs and expenses incurred by TNZ in relation to the early termination of this Agreement (including any collection or enforcement costs (including legal costs on a solicitor/client basis)).

17. NOTICES

1. Any notice given under this Agreement must be in writing (or via email) and delivered by hand or sent by email, post or courier, to the address of the recipient set out in the Order Form. Notices delivered by hand are deemed to have been received on delivery, notices sent by email are deemed to have been delivered at the date and time the email entered into the addressee’s information system and notices sent by post are deemed to have been delivered 4 Business Days following posting, provided that in each case notices sent after 5pm on a Business Day are deemed to have been received at 9.00am on the next Business Day.

18. PRIVACY ACT 1993

1. You and the Guarantor(s) authorise TNZ to obtain, collect, verify, retain and use personal information about you and/or Guarantor(s) including directors in the case of a limited liability company or trustees in case of a trust.

19. CONFIDENTIALITY

1. Both parties must each keep confidential all information about the other which is, by its nature, or is advised by the other party in writing to be, confidential and which comes into its possession.
2. Neither party is permitted to disclose any confidential information about the other without the prior written consent of the other unless:
   1. Public: that information has become publicly available other than by reason of a party’s breach of confidentiality;
   2. Required by Law: disclosure is required by law;
   3. Participating Person: disclosure is to any person participating, or potentially participating, in the funding, discounting or assignment of the Equipment or this Agreement provided that party undertakes to keep such information confidential in the manner set out in this clause 19; or
   4. Disclosure is required in order to exercise a right or remedy under this Agreement.
      1. Notwithstanding the above you authorise TNZ to use your branding or logos on TNZ’s website, marketing or promotional materials.

20. AML/CFT ACT 2009 REQUIREMENTS

1. You shall supply all information required by TNZ to comply with the Anti-Money Laundering and Countering of Terrorist Financing Act 2009.

21. CREDIT CHECK

1. You authorise TNZ to carry out credit checks in respect of you and/or the Guarantor and to collect information concerning you and/or the Guarantor. If requested by TNZ, you and/or the Guarantor will promptly supply without delay all information necessary to check the worthiness of your or the Guarantor’s credit rating, including financial information. You acknowledge that TNZ can obtain from a credit reporting agency a credit report containing personal information about you and/or the Guarantor. If required, TNZ can also collect information concerning you.

22. GUARANTEE

1. In consideration of TNZ, at the Guarantor’s request, agreeing to enter into this Agreement with you, the Guarantor:
   1. Unconditionally and irrevocably guarantees the due and punctual payment by you of all moneys due and payable by you to TNZ and the due observance and performance by you of all its obligations owed to TNZ;
   2. Will pay on demand all moneys due and payable by you to TNZ;
   3. Agrees that the liability of the Guarantor under this guarantee and indemnity is to be construed as if the Guarantor was the sole principal debtor for all moneys due and payable by you to TNZ;
   4. Agrees that this guarantee shall be a continuing guarantee and shall not be satisfied or discharged if your account at any time comes to a nil or credit balance or on the winding up, liquidation, dissolution (or similar event) or any disclaimer by any liquidator but will continue in full force and effect until TNZ decides otherwise;
   5. Agrees to supply on request reasonable evidence of the Guarantor’s financial standing to TNZ;
   6. Indemnifies TNZ against all costs and expenses which either are incurred or incidental to the enforcement of this guarantee and indemnity (including legal fees on a full indemnity basis).

23. GENERAL

1. You authorise us to fill out any spaces left blank by you in this Agreement, including but not limited to, correct any errors relating to any aspect of this Agreement.
2. TNZ will not be liable at any time to perform its obligations, where such failure is due to circumstances which are beyond TNZ’s reasonable control including, without limitation, industrial action, power outages, shortage of materials and delays or failures by you, your infrastructure, or by any third-party.
3. If any clause or term of this Agreement shall be invalid, unenforceable, or illegal then the remaining terms and provisions of this Agreement will be deemed to be severable therefrom and will continue in full force and effect unless such invalidity, unenforceability or illegality is fundamental to this Agreement.
4. This Agreement is governed by New Zealand law and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
5. The person(s) signing this Agreement confirms that they are properly and duly authorized to sign on behalf of you. Should they not be authorized then they agree to accept full responsibility for all aspects of the Agreement in the same manner and to the same extent as if they were the Customer.
6. You agree that we may update this Agreement at any time by giving you not less than 30 days’ notice in writing (either by email or by posting an updated Agreement on our website). In the event that our amendments to this Agreement materially and adversely change the benefit or burden of this Agreement to you, then within 30 days of such amendment you must advise TNZ and you may terminate this Agreement by giving us not less than 30 days’ notice in writing.  In the event that you terminate the Agreement pursuant to this clause then clause 16.2(b)(ii) shall not apply.

The following terms and conditions shall also apply in addition to the General Terms and Conditions where you purchase Equipment from TNZ.

1. OWNERSHIP

1. Unless otherwise stated in writing, you must pay the Fees for the Equipment in advance of it being delivered.
2. Legal and equitable title in the Equipment shall remain with us until we have received full payment of the Price for the Equipment and all other amounts owing to us from you.

2. WARRANTY

1. For the Warranty Period, TNZ shall repair or remedy any defects in the Equipment directly caused by any faulty materials supplied or defective work done by TNZ. For the avoidance of doubt, TNZ shall not be liable to remedy any defect which is created by or contributed to by your conduct, the conduct of any third party or results from your failure to comply with your obligations under this Agreement.
2. Outside the Warranty Period you will be liable for the cost of all parts, labour and any other charges incurred in repairing or replacing the Equipment.

3. TERMS NOT APPLYING

1. The following clauses of the General Terms and Conditions shall not apply: clauses 2, 4, 5, 5.6, 5.7, 5.9, 5.10, 5.11, 8 (to the extent that the price for the Equipment is paid in advance of delivery), 9 and 16.2(a) and (b)(ii)-(iii).

The following terms and conditions shall also apply in addition to the General Terms and Conditions where you have requested Fibre Access or VDSL Access Services from TNZ. In the event of any conflict or inconsistency between these Specific Terms and Conditions and the General Terms and Conditions these Specific Terms and Conditions shall prevail to the extent of the conflict or inconsistency.

DEFINITIONS AND INTERPRETATION

In this Agreement, unless the context indicates otherwise:
“Access” means Fibre Access or VDSL Access (as the case may be).
“Fibre Access” means access to fibre.
“LFC” means local fibre company, the contractor approved by the government to build ultra fast broadband in your area.
“MDF” means main distribution frame.
“VDSL Access” means access to VDSL.

1. SERVICE DESCRIPTION

1. Fibre Access is a fibre to the Premises for the delivery of telecommunications services. Telecommunications services that can run over this access type include (but are not limited to) services such as Internet access, IP voice services such as SIP and VoIP, and VLANs and VPNs.
2. VDSL Access is a fast copper-based access to the Premises for the delivery of telecommunications services. Services that can run over this access type include (for example) Business Broadband and TomiTalk Business VoIP.

2. FIBRE ACCESS

1. Your Fibre Access service(s) consists of a Bitstream service and Equipment per Premises.
2. We will determine the appropriate underlying Bitstream service type for your Fibre Access. This underlying Bitstream service type will provide the required throughput for the Services we have agreed to provide you.
3. Your LFC is the contractor approved by the government to build ultra-fast broadband in your area.
4. In addition to your Agreement with us, you must also agree to be bound by your LFC’s end user terms. You agree that when you agree to take Fibre Access you are also agreeing to be bound by your LFC’s end user terms.
5. You must confirm your acceptance of the LFC’s end user terms by signing a copy of the LFC’s end user terms if the LFC asks you to when they come to install the Fibre Access. If you refuse to do so when requested by the LFC then the LFC may elect not to proceed with the installation, in which case we will not be able to provide Fibre Access to you, or the Services that were to be delivered over the Fibre Access.
6. Copies of each LFC’s end user terms can be obtained directly from the LFC.

3. VDSL ACCESS

1. VDSL Access service consists of a copper access service terminating on a RJ45 socket box at your Premises.
2. If your building is fitted with a MDF, you are responsible for providing a RJ45 socket, premises wiring (Cat 5e or 6) and a spare port on the MDF. If this is not ready please tell us prior to the VDSL Access installation. We will supply to the MDF and allow your own technician to complete the installation. We reserve the right to charge for those additional services.

4. AVAILABILITY

1. Fibre Access and VDSL Access is not available in all areas. Some of the reasons Fibre Access services may not be available at your Premises include no current fibre deployment by an LFC to your Premises; or issues with wiring, consent requirements, and/or building set up.
2. Our agreement to provide Fibre Access or VDSL Access to you is conditional on us confirming that we are able to supply Fibre Access or VDSL Access to your Premises and your confirmation to meet any additional costs or terms that might apply.
3. If you move Premises to a location outside of a Fibre Access or VDSL Access area we cannot guarantee to provide your Fibre Access or VDSL Access at your new address. We will advise you at the time of your move what access and services options are available to you, although this Agreement will continue for the remainder of the Term.

5. INSTALLATION

1. Unless expressly set out otherwise in the Agreement, you are responsible for all costs in relation to the installation of Fibre Access or VDSL Access at your Premises including any set-up charges.
2. On the first day of the installation we or the LFC technician will discuss with you what is required for installation at your Premises. Installation will only proceed if you consent to any non-standard installation charges that may apply.
3. If your installation is non-standard, your installation will incur additional charges. If you do not agree to such charges, we will not be able to supply you with Fibre Access or VDSL Access.
4. There are two standard installation options:
   1. Standard Connection only: only available when you already have a pre-existing VDSL or Fibre Access, which you are transferring to us;
   2. Standard Connection and Wiring: if you do not already have an active VDSL or Fibre Access. We will undertake a full reinstallation of the line, during which time your previous services that used the Fibre or VDSL connection will be unavailable. We do not make any representations or warranties about the outage time, or whether we will be able to successfully install Fibre or VSDL.
5. Our Standard Connection Only and Standard Connection and Wiring options do not include:
   1. Additional work associated with your installation which has additional cost (including additional work which is required due to the quality and capacity of your lines);
   2. Any trench excavation;
   3. Additional line capacity at your Premises or new lead-ins at your Premises which you request that we install;
   4. Wiring from the MDF at your Premises if your building is fitted with a MDF;
   5. Installation or configuration of your router (e.g. for LAN); or
   6. Any other factor associated with your installation or set-up which we (or our agent) reasonably consider to be non-standard.
6. Third party consents will be required in a number of situations, including:
   1. If you are not the owner of the Premises or the property on which the Premises is located;
   2. If the Premises are accessed via a right-of-way; or
   3. If the Premises are part of a multi-unit dwelling, shared with other workplaces, or a campus.
   4. You must provide us with all information and assistance required to assess what consents may be required. You must obtain the consent of the owner(s) of your Premises(s) to all works being undertaken at the Premises(s) and obtain or assist us or the LFC to obtain all other required authorisations, licences and consents.
   5. Fibre Access or VDSL Access will not be installed and Services will not be supplied until all required access, authorisations, licences and consents are obtained.
   6. You must be present at the Premises during the installation of the Fibre Access or VDSL Access, and make available any person required by us or the LFC, or the Fibre Access or VDSL Access may not be able to be installed
   7. Installation of Fibre Access or VDSL Access at your Premises may require trench excavation. Where we agree to undertake excavation of your cost, restoration will be limited to restoration of the area where a trench has been dug and may include reinstating surfaces in a ‘like for like’ manner (i.e. grass with grass, concrete with concrete or asphalt with asphalt etc.), however if this type of restoration is covered the finish or match of the reinstated surface is not guaranteed. Where a LFC is engaged, such restoration will be limited to the restoration policy of that LFC. You are responsible for any restoration beyond the LFC’s restoration policy, including the costs of the restoration.
   8. Some shared UFB infrastructure may need to be installed before we can install your specific Fibre Access or VDSL Access. The LFC may require the building owner to contribute to the cost of the shared infrastructure. Our charges do not cover any contributions to the cost of the shared UFB infrastructure, which is a matter for the building owner and the LFC.
   9. Some line characteristics and conditions are not apparent until the line is built and can be tested. Once the line is built and tested we may discover that we are unable to provide you with Fibre Access or VDSL Access because your lines are unable to support Fibre or VDSL. If this occurs, we will attempt to re-activate your previous connection, but we cannot guarantee that such reactivation will be successful.

6. INSTALLATION FEES

1. Fees may apply if you have not kept an agreed appointment, have not been present at your Premises during the installation or call-out, or have failed to provide access to the Premises or the appropriate people needed. Such fees shall be charged at the applicable rates set out on our website from time to time.
2. Should you move premises then a disconnection fee and reconnection fee will be payable at the rates set out in the website.

7. SERVICE LIMITATIONS

1. Fibre Access and VDSL Access is an access service only, which provides infrastructure for the relevant Services to be delivered to your Premises. Your Services will have the capability and characteristics stated for those Services, and not necessarily the full capability and characteristics of the Fibre Access or VDSL Access.
2. Fibre Access and VDSL Access are reliant on mains power, both at your Premises and in our network. In the event of a power failure the Fibre Access or VDSL Access will not work.
3. Fibre Access and VDSL Access may not provide a level of data throughput required to deliver some voice and video communications. Fibre Access and VDSL Access services should not be your primary access service for emergency services calling (111 calling).
4. We do not guarantee that the Fibre Access and VDSL Access will support third party services and devices (for example: monitored alarms, modems, sky set top boxes, faxes, medical alarms and eftpos). It is your responsibility to contact your relevant third party service provider to ask whether such services are compatible with Fibre or VDSL. You may require an alternative access if your third party service provider cannot guarantee compatibility with our Fibre Access or VDSL Access.
5. Statements about the speed of your Fibre Access and VDSL Access are based on theoretical maximums and are not guarantees of continuous speed. The actual speed that your Fibre Access and VDSL Access can achieve may depend on a number of factors including: your equipment (including your computer and Wi-Fi capability); your internal and external premises wiring; the distance of your premises from the exchange; New Zealand and overseas networks; internet traffic congestion; other environmental factors, and how many other people are using it at the time.

8. YOUR OTHER RESPONSIBILITIES

1. You may not terminate your Fibre Access or VDSL Access independently of any Services provided over Fibre Access or VDSL Access. If you terminate your Fibre Access or VDSL Access, Services provided over that Fibre Access or VDSL Access will also be terminated.
2. If you are replacing an access service from another provider with Fibre Access or VDSL Access, you are responsible for terminating your previous service. We recommend you do not cancel any previous services from third parties until your Fibre Access or VDSL Access service is operational.

The following terms and conditions shall also apply in addition to the General Terms and Conditions where you have requested Fixed Line Broadband. In the event of any conflict or inconsistency between these Specific Terms and Conditions and the General Terms and Conditions these Specific Terms and Conditions shall prevail to the extent of the conflict or inconsistency.

1. PROVISION OF SERVICES

1. Provision of the Fixed Line Broadband Service (the “Service”) is subject to your Premises passing a qualification check. If we cannot provide the Service, you can terminate this Agreement (insofar as it relates to the Services) immediately and without penalty.
2. You acknowledge that TNZ and our upstream service providers can cancel, suspend or change the Service at any time, or alter the mechanism by which the Service is provided.
3. You agree that you will not use the Service for any purpose other than for your own business and at the Premises at which it is installed.

2. USE OF SERVICES

1. You must not knowingly transmit any worms or viruses or use our Service in a manner which is likely to or is intended to damage or compromise the security of our network or anyone else’s network.
2. You are responsible for your own network security and we recommend that an enterprise grade firewall is installed on your internet connection.
3. You agree that we are not liable to you in any way due to the unauthorised access of your network, hacking or denial of service attacks. Furthermore should you experience unauthorised access to your voice over IP telephone service or any other network services due to insufficient internet security or for any other reason then the costs incurred due to the unauthorised access will be at your expense.
4. We do not control the information that can be accessed through the internet. Accordingly we are not responsible for any inaccurate, illegal or offensive information which may be obtained from your use of the Service. We are also not liable for any viruses or other harmful code which you download via the internet.
5. You are responsible for your own network security and we recommend that an enterprise grade firewall is installed on your internet connection. You agree that TNZ is not liable to you in any way due to the unauthorised access of your network, hacking or denial of service attacks. Furthermore should you experience unauthorised access to your Services or any other network services due to insufficient internet security or for any other reason then the costs incurred due to the unauthorised access will be at your expense. This includes ransomware attacks and similar.
6. If you are using a Tomizone unlimited data plan then the total amount of data is unlimited. We may use traffic prioritisation policies for these plans and on our capped plans at any time to improve the overall performance amongst our customers. Other factors may influence the particular speeds or latency you can achieve to servers nationally and internationally.  Our control of these speeds is limited to our own network. Connections to servers outside of the TNZ network are on a reasonable endeavours basis and it may not be possible for you to achieve your desired or expected speeds or latency where you are connecting to equipment outside of our control.
7. Unlimited plans are intended for use by a single end user customer. Running server farms, cryptocurrency mining or sharing a connection between multiple customers is prohibited.
8. If you are on a capped plan then once you reach your data limit your internet traffic will be throttled to 256K. Additional data blocks can be purchased if required.
9. Our Acceptable Use Policy applies to any unlimited data plan. Your use of the unlimited data plan must be fair, reasonable and not excessive, as reasonably determined by us by reference to average and/or estimated typical customer usage of the said service. We will consider your usage to be excessive and unreasonable where it materially exceeds the average and/or estimated use patterns over any day, week or month (or other period of time as determined by us). If in our reasonable opinion your use is unfair, unreasonable and/or excessive then we may:
   1. Restrict or withdraw your access to the Service;
   2. Charge you at our standard rates for the excess usage.
      1. Any entitlements included under our unlimited data plan are offered for your own use and benefit only. It does not allow activities aimed at making profit or reselling the unlimited data plan and any such use by you is a breach of this Agreement.

The following terms and conditions shall also apply in addition to the General Terms and Conditions where you have requested TomiTalk Business VoiP. In the event of any conflict or inconsistency between these Specific Terms and Conditions and the General Terms and Conditions these Specific Terms and Conditions shall prevail to the extent of the conflict or inconsistency.

1. SERVICE DESCRIPTION

1. TomiTalk Business VoIP (the “Service”) is a fixed calling, cloud-based PBX business product provided by TNZ.

2. SERVICES

1. We are not obliged to provide the Service unless we accept your application. We can decide in our absolute discretion whether or not to accept any application.
2. You understand that the Service is not a traditional phone service and is provided on a reasonable endeavours basis. We will use all reasonable endeavours to make our services available to you at all times.
3. You accept that our Service is a non-compliant voice service under the Emergency Calling Code. TNZ will still use all means possible to process your emergency call.  Non-compliance simply means that this cannot be guaranteed.
4. You accept that calls to 0900 premium numbers are not available from the Service.
5. You accept that the Service might not be compatible with non-voice communications equipment such as home alarms, fax machines, vending machines, dial up modems, Sky Digital and St John Alarms.
6. You accept that you are solely responsible for the conference streaming, all contents, information and data that are going to be streamed during any TNZ provided web conference. By using the Service and taking part in a public or private conference, you give permission to transfer all disclosed information and data to every single conference recipient.
7. We will use all reasonable endeavours to make the Service available to you at all times. If the Service is unavailable for any reason we will endeavour to restore service as soon as possible.
8. While we take reasonable security precautions, due to the nature of telecommunications services we cannot guarantee the confidentiality of any calls or transmissions you make using the Service.
9. You are responsible for your own network security and we recommend that an enterprise grade firewall is installed on your internet connection. You agree that TNZ is not liable to you in any way due to the unauthorised access of your network, hacking or denial of service attacks. Furthermore should you experience unauthorised access to your voice over IP telephone service or any other network services due to insufficient internet security or for any other reason then the costs incurred due to the unauthorised access will be at your expense.
10. When porting your lines to TNZ it is your responsibility to check with your existing carrier if you are under contract with them and find out if any penalties will be incurred if you move your lines to another carrier. Penalties associated with disconnection are not included in our quotes or proposals. Many carriers require that you give them 30 days’ notice of intention to port your services to another provider. Please note that it is your responsibility to provide them with the notice they require.
11. Whilst we complete the project there may be a period where both the Service and your existing carrier’s service is active and you may receive charges from both carriers for a brief period. This is unavoidable but should be noted and accepted.
12. We can suspend or restrict the Service at any time if:
    1. We consider it necessary to protect or maintain the Service; or
    2. We believe that you have breached this Agreement.

3. FIXED LINE CALLING SERVICES

1. All chargeable calls are charged on a minute plus minute basis (calculated and rounded up to the next minute). There is a one minute minimum charge for each call and the charge for each call is rounded to the nearest cent.
2. Your pricing plan only covers the call types that are expressly specified as being included in your pricing plan. Excluded calls and any other call types that are not expressly specified as being included in your pricing plan will be charged at the rates set out on our website from time to time or otherwise notified to you. You can view our latest call rates table here.
3. You will be billed for the Service once your fixed line calling services are operational.
4. You will receive your invoice for the Service from TNZ.
5. You are responsible for all call costs regardless of duration and call destination.

4. FEATURES/FUNCTIONALITY

1. The following features are available with the Service. Selected features may only be available on some pricing plans.
   1. Auto-Attendant
   2. Call Conferencing
   3. Call Forwarding
   4. Call Hold
   5. Call Monitoring
   6. Call Recording
   7. Call Transfers
   8. Call Waiting
   9. Caller ID
   10. Caller ID (inbound/outbound)
   11. Calling Reporting & Analytics
   12. Click to Call
   13. Day/Night Mode
   14. Do not disturb
   15. Intelligent Call Routing
   16. Management Portal
   17. Music/Information on hold
   18. Ring Groups & Queues
   19. Self Service Portal
   20. Time Conditions
   21. Voicemail
   22. Voicemail to Email
       1. It is your responsibility to obtain licences for any Music on Hold recording you wish to use with your Service. For details on how to obtain these licences, visit https://www.onemusicnz.com/.

5. SELF SERVICE PORTAL

1. With some pricing plans, you will receive access to the Self Service Portal as part of the Service. We will provide details on how to access and log in to the Self Service Portal.
2. You will be responsible for changing your password. You must not share your password or logon details with others. Each user will be provided with their own user name and password. Selected users will have the ability to manage access to the Service.

6. PHONE NUMBERS AND DIRECTORIES

1. Any phone number that we allocate to you does not become your property. If we need to change your number we will give you as much notice of the change as we can.
2. We can withdraw or terminate any number at any time without liability, particularly if you do not comply with the instructions for use provided by TNZ or any other term of the Agreement.
3. You may be able to port your TNZ 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, including our standard porting fees which must be paid in advance
4. If your account is inactive for more than 3 months or disconnected and you have not ported the associated phone number(s), we may at our sole discretion reallocate the number(s) associated with your account.
5. If you wish your details to be available through directory assistance and/or in the phone book then we will pass your name, number and address to the applicable third party directory service (“directory companies”). You agree that directory companies can use your details for those purposes.

7. INSTALLATION

1. We will visit your Premises prior to installation to confirm that we are able to provide you with the Service. You must be present for this visit. If a visit cannot proceed for a reason we do not control you may be charged for a missed appointment.
2. A standard charge will apply for installations that we consider to be simple.
3. If we consider that any installation is not simple, our charges for that installation will be charged on a time and materials basis and we will consult with you to agree on the costs (or the basis of such costs) prior to incurring them.
4. Your Fibre Access or VDSL Access will be installed first. In some cases, characteristics of your Fibre Access or VDSL Access may mean we are unable to supply you with the Service. If this occurs, we will investigate alternative access with you. In some cases we will attempt to re-activate your previous connection, but we cannot guarantee reactivation will be successful.
5. Once your Fibre Access or VDSL Access is operational, we will install the Service.
6. For the purposes of clause 4 and 7.5 Fibre Access and VDSL Access have the same meaning as given to those terms in the Fibre Access and VDSL Access terms and conditions.

8. EQUIPMENT

1. We may supply you with SIP Desk Phones, Wireless DECT Phones, routers, switches or other telephony/network hardware. Unless purchased up-front, each item of Equipment remains our property and must be returned at the end of the Term.
2. You can purchase Approved Conference phones or Headsets from us for use with the Service. That equipment will be your property and subject to the standard Conference phone supplier warranty. For the avoidance of doubt, the warranty set out in clause 2 of the Purchase Terms and Conditions shall not apply to the Conference phones and Headsets purchased by yourself.

9. TERM AND TERMINATION

1. Either you or we can terminate the Service on giving the other 30 days’ notice in writing.

10. LIABILITY

1. You acknowledge and agree that us and our upstream service providers are not liable to you (and nor are any of our officers, employees, contractors or agents liable to you):
   1. If any communication you make is intercepted;
   2. If any communication you make is not properly transmitted or received;
   3. If the Services are not available at any time or are faulty;
   4. For any delay in commencing the provision of Service;
   5. If any software we supply does not operate properly;
   6. For any error in any directory listing which we arrange;
   7. If your computer becomes affected by any virus or worm; or
   8. For any loss of profits, loss of business or any other consequential losses.
      1. If you use another service provider during any period when the Service is not fully operational, we are not liable to pay any amount you are charged by that service provider.

The following terms and conditions shall also apply in addition to the General Terms and Conditions where you have requested toll free services (the “Services”). In the event of any conflict or inconsistency between these Specific Terms and Conditions and the General Terms and Conditions these Specific Terms and Conditions shall prevail to the extent of the conflict or inconsistency.

1. FEES

1. In addition to the Fees, minimum use charges, charges for international calls and various surcharges in respect of all toll free calls originating from payphones will apply, in each case at the rates set out on the website.
2. Calls are charged on a minute plus second basis (calculated to the next minute). There is a one minute minimum charge for each call. The charge for each call is rounded to the nearest cent.

2. PHONE NUMBERS

1. We will allocate a toll free number to you. This number does not belong to you.
2. We may be required by law from time to time to change your toll free number. We will endeavour to give you reasonable notice of this change although will not be liable for any costs you or anyone else may incur as a result of such change.
3. Upon termination of the Services, we are required by the terms and conditions of the Toll Free Number Administration Scheme (“TNAS”) to return the toll free number to the TNAS pool. The toll free number may then be reallocated, if free, to any service provider (including TNZ) on a first come first served basis provided there is an end customer billing relationship in existence or that will come into existence within 5 working days of applying for the number.
4. If you port your number to another service provider then this will constitute termination of this Agreement.
5. We may de-allocate any toll free number and return it to the TNAS pool of numbers if no calls are recorded against it for three consecutive billing periods.

The following terms and conditions shall also apply in addition to the General Terms and Conditions where you have requested Wifi Services.

These Wifi terms and conditions come in two parts, Part A (Terms of Use), which apply to users of the Services and Part B (Provider Terms), which apply to Providers (as defined below). In the event of any conflict or inconsistency between these Specific Terms and Conditions and the General Terms and Conditions these Specific Terms and Conditions shall prevail to the extent of the conflict or inconsistency.

PART A (TERMS OF USE)

1. DEFINITIONS

In this Agreement, unless the context indicates otherwise:

“Hotspot” means the area in which the Services at the Location may be accessed.
“ISP” means internet service provider.
“Location” means the location at which you can access the Services, from time to time.
“Materials” means TNZ’s software, systems and other materials and documents provided by it to enable the operation of the Hotspot.
“Portal” means the portal used by TNZ through which a User accepts this Agreement and uses the Services.
“Provider” means an independent and unrelated party to TNZ who provides and/or manages the Location.
“Software User License” means the licence as described in clause 6.2 of Part B (Provider Terms).
“Third Parties” means third parties engaged by TNZ from time to time to assist with the delivery of the Services to the User. For the avoidance of doubt, a Provider is not a Third Party.
“User” means a person who obtains access to the Services in accordance with this Agreement.
“Website” means each and every one of the elements and contents of the TNZ website from which you can access the Services.
“WiFi” means wireless fidelity communications technology.

2. SERVICES

1. The Services provided by TNZ consists of facilitating access to the Services by providing the authentication, accounting, authorisation and communications access to the Service.
2. The User can connect to the Services via a Hotspot as and when available and subject to the Acceptable Use Policy.
3. To connect to a Hotspot at the Location, you will have to select the Hotspot, and through the Portal, authenticate for the Services by accepting these terms and conditions. Authentication may also require you entering specified credentials such as a roaming account username and password, or a TNZ account username and password. You can create an instant TNZ account either at the Website or on the Portal. If a TNZ account is inactive for 365 days, any monetary balance in the account will be debited to a zero balance and the account may be closed.
4. Where the Services are not provided for free, TNZ may charge a User for access to the Services where applicable at the rate specified on the welcome page of the Portal.
5. Except where required by law, there are no credits or refunds whatsoever for fees incurred for any free or paid use of the Services.
6. TNZ reserves the right to change, at any time, the fees, promotions and/or discounts for the Services provided.

3. DATA PROTECTION

1. TNZ will maintain the confidentiality of all personal data relating to you during and after the termination of this Agreement.
2. In order to provide the Service to you, TNZ will need to share your personal data with Third Parties. You agree and accept that the data you provide to TNZ can be shared with Third Parties. Tomizone warrants that it will comply with (i) all applicable privacy legislation; and (ii) the TNZ privacy policy as published on the Tomizone Website at https://www.tomizone.com/privacy-policy.
3. In no event will the Provider be liable to you, nor will you have any claim against the Provider, for any breach by TNZ or any Third Party of its privacy obligations under this Agreement.

4. TERMINATING OR CHANGING THIS AGREEMENT

1. Either TNZ or you may decide to terminate this Agreement at any time.
2. Upon termination, you will no longer have access to the Services at the Location.
3. The consequences of termination set out in clauses 16.2(a), (b)(ii) and (iii) of the General Terms and Conditions shall not apply.

5. LIMITATION OF LIABILITY

1. Except as required by law, neither TNZ nor the Provider (a) warrant the availability, suitability, fitness for purpose of the Services or Location; or (b) will be liable to you for any loss or damage arising from errors or failures of access to the Service or Location as sustained by you. Without limiting the generality of the foregoing, TNZ and the Provider: (c) specifically disclaim any warranty regarding the profitability or availability of the Services and Location; (d) make no guarantees that the Service and access to the Service at the Location will be error free, uninterrupted, secure, virus-free or always available or available with sufficient capacity; (e) make no warranty that the Service will work at the Location and on every computer system or device used by you; (f) will have no responsibility for damage or destruction to any computer system, device, data, information, property or equipment; and (g) will have no responsibility for any third party content, data, information, programs or other material that You access whilst using the Service at the Location.

6. CONDITIONS OF USE

1. You will not access any internet sites or material or distribute material over the internet which are illegal or otherwise prohibited by law when using the Service at the Location. You will notify TNZ immediately if you become aware of such a breach by you at the Location when using the Service.
2. You agree to respect the rights based on the international nature of communications through the Services, even if this Agreement is terminated. Recognising the global nature of the internet, you agree to comply with all local rules, laws and regulations regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable rules, regulations and laws regarding the transmission of technical data exported from your home nation, the country in which you reside, or any nation in which you are located when using the Services at the Location.
3. You shall have a limited, royalty-free, non-exclusive license during the term of the agreement to use TNZ’s Wi-fi software.

PART B (PROVIDER TERMS)

1. PROVIDER’S OBLIGATIONS

1. The Provider shall provide the Location for the Hotspot in order for TNZ to provide the Services to the User.
2. The Provider acknowledges that it shall be responsible for compliance of all laws and regulations relating to its provision of Hotspots (including any licenses to operate equipment) and for payment of all its own levies and taxes (including its own income tax) on all amounts paid to it by TNZ and shall indemnify TNZ for any claim against TNZ relating thereto.
3. The Provider shall keep and maintain its equipment to a high standard and shall upgrade as necessary, having regard to changes in technology and usage levels of the Hotspot.
4. The Provider acknowledges that it shall be responsible for compliance of all laws and regulations relating to its provision of Hotspots (including any licenses to operate equipment) and for payment of all of its own levies and taxes (including its own income tax) on all amounts paid to it by TNZ and shall indemnify TNZ for any claim against TNZ relating thereto. The Provider further acknowledges that it shall not broadcast any offensive material which may include (but not limited to) images, name identifiers such as the broadcast SSID or any other material that may cause offense to the wider community. In the event that TNZ becomes aware that the Provider is in such breach, TNZ may terminate the Provider’s service without notice.

2. TOMIZONE’S OBLIGATIONS

1. TNZ will from time to time promote its service and the areas where it operates and as such reserves the right to publish the listed address of any particular Hotspot.
2. TNZ will have no obligation to correct, repair, or support, and will otherwise have no responsibility for, software, hardware or equipment that it did not supply to the Provider under this Agreement.
3. The Provider is responsible for maintaining the security of its account and password. TNZ cannot and will not be liable for any loss or damage from the Provider’s failure to comply with this security obligation.

3. NO WARRANTIES

1. TNZ cannot and does not make any guarantees or warranties regarding its service to Providers or Hotspot Users. In particular, it does not make any representation nor give any warranty as to the number or nature of Users that may use the Provider’s Hotspot.
2. TNZ will not be liable to you as the Provider or any other person/entity as regards any loss or damage caused by or arising from the use and/or interruption and/or unavailability of the Service howsoever arising, including by Users.
3. TNZ will not be held liable for any loss or damage caused by fraudulent access or illegal activities at a Provider’s Hotspot or network of Hotspots.

4. LIMITATION OF LIABILITY

1. Except as required by law, TNZ does not (a) warrant the availability, suitability, fitness for purpose of the Services or Location; or (b) will be liable to you for any loss or damage arising from errors or failures of access to the Service or Location as sustained by you. Without limiting the generality of the foregoing, TNZ: (c) specifically disclaims any warranty regarding the availability of the Services and Location; (d) makes no guarantees that the Service and access to the Service at the Location will be error free, uninterrupted, secure, virus-free or always available or available with sufficient capacity; (e) makes no warranty that the Service will work at the Location and on every computer system or device used by you; (f) will have no responsibility for damage or destruction to any computer system, device, data, information, property or equipment; and (g) will have no responsibility for any third party content, data, information, programs or other material that you access whilst using the Service at the Location.
2. Under no circumstances, including, but not limited to, negligence, shall TNZ be liable for any special or consequential damages that result from the use of, or the inability to use, the Service, Equipment or Materials, even if it or its authorised representative has been advised of the possibility of such damages.
3. In no event shall TNZ’s total liability to you for all damages, losses, and causes of action (whether in contract, tort (including, but not limited to, negligence) or otherwise) exceed the amount paid by you, if any, for purchasing any services, Equipment, Materials or products.

5. INTELLECTUAL PROPERTY

1. The Provider shall have a limited, non-exclusive license during the term of the Agreement to use the trade names, trademarks, and service marks of TNZ as approved by TNZ strictly for the purpose of advertising and marketing its Hotspots; and TNZ and its affiliates shall have a royalty-free license to use the trade names, trademarks and service marks of the Provider for which the Provider holds all rights necessary for use and to grant use in connection with this Agreement. Each party agrees not to act in any manner that could impair or infringe upon the trademark rights of the other party Software User Licences.
2. The Provider acknowledges and agrees to a Software User Licence on the following terms
   1. The Provider shall have a limited, royalty-free, non-exclusive license during the Term to use TNZ’s
   2. The Provider shall have a limited, royalty-free, non-exclusive license during the Term to use the firmware in the WiFi Router equipment which supplies the Services in the Hotspot. TNZ firmware is proprietary firmware developed exclusively by TNZ and owned by TNZ, with the exception of firmware developed under the GPL license for installation in Linksys router models WRT54G vers 1 to 4, WRT54GS and WRT54GL.
      1. The firmware developed under the Software User Licence is free software and you may redistribute and/or change it according to the terms of the GNU General Public License as published by the Free Software Foundation, in its current version 2. This firmware is distributed without any guarantee whatsoever. Please refer to the GNU General Public License for more details. This firmware source code contains various third party software. All OpenWrt specific additions are licensed under the terms of the GNU General Public License (version 2). You can find the exact licensing terms of other parts in the unmodified software archives included in our source release in the ‘dl’ directory.

6. TERM AND TERMINATION

1. This Agreement shall commence on the date that the Provider is accepted by TNZ as a Provider and shall continue for the Term.
2. TNZ may terminate this Agreement at any time without cause or reason and the Provider shall not have any claim against TNZ for such termination.
3. On termination for any reason, the Provider shall immediately cease to use TNZ’s Materials, trade names, trademarks, and service marks but the provisions of clause 16.1 and 16.2(a) and (b)(ii) to (iii) in the General Terms and Conditions shall not apply.

This Acceptable Use Policy shall apply whenever you use Broadband, Tomizone Business VoiP or other Services whereby you use content. In the event of any conflict or inconsistency between these Specific Terms and Conditions and the General Terms and Conditions these Specific Terms and Conditions shall prevail to the extent of the conflict or inconsistency.

• TNZ desires that users understand the intended and permissible uses of its Equipment and Services, and further desires to prevent fraud, exploitation and abuse of certain TNZ calling plans and features.
• Certain calling plans, including unlimited calling plans, are designed for normal commercial use and are not intended to represent typical usage by unique organizations such as call centers, resellers, fax messaging services, telemarketing firms, or for use without live dialog, such as transcription services, intercom or monitoring services. Unauthorized or excessive use beyond that normally experienced by typical business customers violates this AUP and may cause extreme network capacity and congestion issues and interfere with TNZ’s network and third party networks with whom TNZ connects for call initiation and completion services.  As a guide, users will be considered to be in violation of this AUP when aggregate outbound land to mobile [or land] calling exceeds 1000 minutes per subscriber extension (user) per month.
• In addition, unlimited plans may not be used for any of the following prohibited uses (which are in addition to the other prohibited uses under this AUP or otherwise applicable to the TNZ Equipment and Services):
  • Spamming or blasting (e.g., sending one hundred (100) or more bulk and/or junk voicemail or faxes simultaneously);
  • Cryptocurrency mining;
  • Bulk call-in lines (e.g., customer support or sales call centers, “hotlines”, 0900 numbers, sports-line numbers, etc.); or
  • Auto-dialling or “predictive” dialling (i.e., non-manual dialling or using a software program or other means to continuously dial or place out-bound calls).
    • If you use the Service in a way that is inconsistent with the normal use for your Service or plan (or which is otherwise in breach of this AUP) we may:
      • • monitor and investigate your usage; and
        • Either:
          • (i)             Suspend and/or withdraw the Service; or
          • (ii)           Charge our standard per minute rate for additional calls or standard rate for data/internet usage.

The following terms and conditions shall also apply in addition to the General Terms and Conditions where you have requested Support Services. In the event of any conflict or inconsistency between these Specific Terms and Conditions and the General Terms and Conditions these Specific Terms and Conditions shall prevail to the extent of the conflict or inconsistency.

DEFINITIONS

In these terms, unless the context indicates otherwise:

“Metro Sites” means those sites that are within 65km of the CBDs of Auckland, Hamilton, Wellington, Christchurch or Dunedin.
“Other NZ Sites” means areas outside of Metro Sites and Regional Sites.
“Support Hours” means between 8.30am to 5:00pm New Zealand time on all Business Days.
“Regional Sites” means those sites that are within 30km of Whangarei, Rotorua, New Plymouth, Napier/Hastings, Palmerston North, Nelson, Greymouth or Invercargill.
“Resolve” means to remedy the fault reported by the user and “Resolution” has a corresponding meeting.
“Respond” means to make reasonable attempts to communicate to the individual requesting support that we have commenced attempting to Resolve the issue.

1. SUPPORT SERVICES

1. You may make a request for support during the Support Hours by either:
   1. Calling the Tomizone Helpdesk;
   2. Emailing the help desk at support@tomizone.com;

• Logging a support request using the online help request tool available on our website at tomizone.com/support.
  • When making a request please be prepared to provide the following information:
• Your name and account number;
• A full description of the fault, including the impact on your business;
• Contact details for the individual to be advised of progress and resolution; and
• Arrangements for accessing the affected site (if required).
  • We will Respond to a support request in relation to a telephone or internet service in the manner set out in these Support Services terms.
  • We will attempt to Resolve a support request as quickly as reasonably possible, taking into account the priority assigned to the problem. When appropriate, we will try to give an estimate of how long a problem may take to Resolve. We will keep you informed of our progress in Resolving the problem.
  • In the course of Resolving a problem we may issue you with a workaround which will enable you to continue working (albeit with possibly reduced functionality).
  • Where, despite our reasonable efforts, we are unable to Resolve the fault within the target resolution time, we will:
    • Advise you that we have been unable to do so; and
    • Notify you of our intended next course of action.

2. TOMIZONE HELPDESK

1. The Tomizone Helpdesk is your primary point of contact. Through the Helpdesk, we will:
   1. Provide you with a fault logging facility;
   2. Investigate and manage faults through to Resolution;
   3. Update you on progress with fault Resolution;
   4. Escalate unresolved faults to the appropriate Tomizone representative;
   5. Respond to MAC requests (refer to clause 6 below);
   6. Respond to service requests;
   7. Respond to billing inquiries.

3. FAULT MANAGEMENT

1. We will use all reasonable endeavors to Resolve any faults for which we are responsible in accordance with the resolution times specified below. However, we do not guarantee that these resolution times will always be met.
2. Faults will be assigned a priority rating depending on the impact that the fault is having on the Services. We will determine that priority rating in consultation with you.

4. PRO-ACTIVE ALARMS

1. Some designated Services and Equipment that are under continuous surveillance by us may automatically generate a range of alarm conditions. In that case we may, at our discretion, advise you of such faults and generate a “trouble ticket” for service response.
2. We will inform you as soon as practical with the escalation procedure and the fault ticket number.

5. MOVES, ADDS & CHANGES (“MACS”)

1. A MAC is an ad hoc rearrangement, deletion or addition of standard service components or features.
2. MAC requests must be made by those persons you have notified us in writing as being authorised to initiate such requests.
3. Within three (3) Business Days of receipt of a written MAC request, we will advise you of the charge and likely completion time for the work (unless the work involves third party facilities or services, in which case, the likely completion date will be provided within seven (7) Business Days).
4. We will update you on any changes to the likely completion time.
5. Completion times will vary depending on the complexity of the MAC, starting at 3 Business Days for simple MAC’s, to longer time frames for complex MAC’s.
6. The implementation of additional Services, relocation of existing Premises, addition of new premises or activities that require specific design, consulting or project management effort are not included in the Services and will incur additional Fees (to be advised by TNZ prior to the work commencing).

The following additional fees will also apply (such charges may be amended by TNZ on 30 days’ notice in writing):

• Late payment Fee: A fee of $25.00 if payment is not received on time;
• Default Fee: A fee of $35.00 if you breach this Agreement;
• Repossession/Field visit Fee: A fee of $100.00 in addition to third party charges in the event that the Equipment must be repossessed or a site visit is necessary;
• Assignment/Variation Fee: A processing fee of $100.00 if we allow you to assign this Agreement;
• Multiple refund Fee: A fee of $20.00;
• Monthly invoice Fee: A monthly invoice fee of $10.00.
  • All of the additional fees in clause 6 above are exclusive of GST and are payable on demand.
  • TNZ reserves the right to vary the fees from time to time by giving at least 30 days written notice to you. The variation shall take effect from the date nominated in the notice.

For latest call rates, please visit: tomi.zone/rates.