Melinjo Limited

TERMS AND CONDITIONS OF SERVICE AND SUPPLY

Last updated: 29/11/2015

1.0        GENERAL TERMS

  1. We are not obliged to provide any products or services unless we accept your application. We have the right to decide to provide product or service, or not to accept any application for product and service.

  1. Melinjo will use all reasonable efforts to ensure that the services are reliable and available at all times, and will use skill and care in doing so. Since we rely on networks and equipment which we do not control, we cannot promise that our services will always be available or fully-functioning. If our services are unavailable for any reason we will endeavour to restore service as soon as possible. If there is a problem with your service, please call our support center on 0800 003 245.

  1. While we take all reasonable security precautions, the nature of telecommunications services mean that we cannot guarantee the confidentiality of any calls or transmissions you make using our services.

  1. We will be responsible for determining the manner in which the services are to be provided.

  1. We may vary the service(s) from time to time, or decide to stop providing a particular service. We will notify you prior to making the variation and will tell you about any substitute service we have available.

  1. You must not use or permit our services to be used in any way which:

  1. contravenes any laws;

  1. infringes anyone's rights;

  1. is malicious, obscene or offensive;

  1. damages Melinjo’s or any of our partner network(s).

1.7        You must keep confidential any password or PIN number which is used by you to access our services and we recommend, for security reasons, that you change these on a regular basis. If we request, you must change your password or PIN in a timely manner.

1.8        You must comply with any reasonable restrictions we impose or directions we give regarding the use of our products or services or both.

1.9        You must ensure that all information you provide us is correct. If any information you have supplied to us changes, you must provide us with updated information as soon as possible.

1.10        You must notify us, thirty (30) days in advance, if you wish to terminate your agreement or services.

  1. You must not resell Melinjo's services or products to others without the express written permission of an authorised Melinjo’s representative.

  1. You must immediately report any misuse of your services or disclosure of your account information.

  1. We may change these terms at any time by giving you thirty (30) days’ notice. We will inform you of any change by emailing or writing to you, by putting a notice in major daily newspapers or by providing relevant information on our website (melinjo.co.nz).


2.        PAYMENT

2.1        You must pay our fees and charges for any of the products and services we provide to you, regardless of whether you or someone else uses these products or services.

2.2        As a rule, we will invoice you monthly for services we provide but we reserve the right to invoice you at any time. Fixed charges are payable in advance. Usage-based charges (such as toll calls and excess Internet data) are payable in arrears.

2.3        You must pay each invoice within fourteen (14) days off the date of the invoice date (“due date”). If you do not pay any invoice within that time, we reserve the right to:

  1. charge you interest on the overdue amount from the due date until the date you pay, at the rate of 1.5% per month; and

  1. withhold any discount or similar incentive which would otherwise be available to you; and

  1. immediately and without any further notice, suspend or restrict your service; and

  1. recover from you any debt recovery costs; and

  1. require you to put in place a direct debit payment arrangement for payment of our invoices.

2.4        Any monthly usage rights that remain unused at the end of any given month will not be carried over to later months or have any monetary value or credit ascribed to them.

  1. Network charges will still apply during the period of any suspension.

  1. We may, at our discretion, impose a credit limit on your account.

  1. If you breach any term of this agreement and we incur costs as a result, you must pay for these costs on demand.

  1. Any expenses, disbursements and legal costs incurred by us in the enforcement of any rights contained in this agreement shall be paid by you, including any reasonable legal fees or debt collection agency fees.

  1. Any requests for refunds will be reviewed by Melinjo and issued at our discretion. If your refund request is accepted, it will be processed within thirty-one (31) days and refunded via your bank account or credit card. If your request for a refund is declined, we will advise you in writing within ten (10) business days.

  1. If we provide any equipment to you, you agree that:

  1. you will not sell, lease, dispose of, or allow any other person to take a security interest in the equipment; and

  1. where the equipment has a total value in excess of $1,500.00, you agree to grant a security interest in the equipment to us and we can register a financing statement on the Personal Property Securities Register (“PPSR”) to reflect our interest in the equipment.

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

  1. provide us with such information as we reasonably request to enable us to register a financing statement on the PPSR;

  1. inform us immediately in writing if you intend to change your name, address or contact details; and

  1. to the extent permitted by law you waive your rights under Part 9 (Enforcement of Security Interests) of the PPSR.

  1. If you are on residential telephone and internet plans, Melinjo only accepts payment by credit card.  Credit card payments are processed within twenty-four (24) hours after your invoice is sent to you by email to your preferred email address. If you wish to raise a genuine dispute regarding an invoice sent to you under these circumstances, you must do so in writing on or before ten (10) days of the date of the invoice. We will consider any issues in good faith and will advise you of any resolution or amendment to our charges including the right to offset any refund to your next invoice.

  1. Melinjo uses the DPS Payment Express Payment Gateway for credit card payments.  Melinjo does not have access to your full card number, as this credit card payment is secured by DPS. All transaction details are stored in their PCI-DSS compliant Data Centre.  You can visit the DPS Payment Express website www.paymentexpress.com for more info on online credit card payments.  


3.        LIABILITY

 

3.1        To the extent permitted by law, all representations, warranties, descriptions and conditions, whether implied by law or based on any oral or written representations not expressed in these terms and any additional terms, are expressly excluded.

3.2        Except expressly set out in these terms, and to the extent permitted by law, Melinjo excludes any liability of any kind (whether in contract, tort (including negligence), equity or otherwise) to you or anyone claiming through you, relating to loss of profits or revenue, interception of data or unauthorised access to your information, loss or corruption of data, lost business or missed opportunities, wasted expenditure or savings you may have had, or any form of indirect or consequential loss whatsoever arising from your use of the equipment or services.

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

  1. If any of our services are not available at any time or are faulty;

  1. If any services are provisioned incorrectly;

  1. For any delay in commencing the provision of services;

  1. If any software or equipment we supply does not operate correctly;

  1. For any error in any directory listing which we arrange;

  1. If your computer(s) become affected by any virus or worms;

  1. If data isn’t backed up or restored correctly;

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

3.5        If you use another service provider's services during the period when our service is not fully operational, we are not liable to pay any amount you are charged by that service provider. You acknowledge that no third party whose network or services we use to supply services to you (nor any officer, employee, contractor or agent of such third party) is in any way liable to you in connection with our services.

3.6        If we are held to be liable to you for any reason, then our liability to you is limited to an amount equal to our average charges to you for one (1) month in respect of any single event or related series of events and to a maximum amount equal to our average charges to you for a three (3) month period in any one (1) year.

3.7        If you are a consumer (as defined in the Consumer Guarantees Act 1993 (“CGA”)) and:

  1. are acquiring or holding yourself out as acquiring the goods and/or services for a business purpose, the CGA will not apply; and

  1. we do not guarantee that repair facilities and spare parts for the goods will be available.

3.8        Subject to clause 3.7, nothing in these terms or the additional terms will affect or limit any rights you have under the CGA.

3.9        You indemnify us together with our officers, directors, agents, advisors and employees against any and all liability, losses, damages, costs, penalties and expenses of any nature whatsoever awarded against, incurred or suffered by us, or our officers, directors, agents, advisors and employees whether direct or consequential, arising out of or resulting from your breach of clause 12.7.


4.0        WARRANTY OF PRODUCTS PROVIDED

4.1         We warrant that we will use reasonable skill and care in undertaking the Services.

4.2         No warranty is given for the Products where any failure or defect results from:

  1. improper storage or handling of the Products by you, your employees, agents or customers;

  1. use, installation, modification or alteration (including repair) of the Products other than as recommended or authorised in writing by the manufacturer or us;

  1. fair wear and tear on the Products;

  1. failure to maintain the Products in accordance with any care or maintenance instructions provided by us or the manufacturer; or

  1. any other matter or event specified in relation to a specific Product as invalidating or being excluded from any warranty.

4.3         Except as otherwise provided in the Consumer Guarantees Act 1993 and the Fair Trading Act and subject to clause 13.1 of these terms and conditions your sole remedy in relation to the breach of any warranty under this agreement or at law, in relation to any:

  1. Service, will be for us to re-perform such Services to the required standard; or

  1. Product, will be for us to repair or replace such Product, at our option, provided that if neither option is available to us (as determined solely by us) we may refund the price paid for that Product.

4.4         We have no obligation to install, customise or provide any other Service in relation to any Products repaired or replaced due to a breach of any Product warranty.

4.5         You acknowledge that if the Services or Products are supplied for business purposes in terms of the Consumer Guarantees Act 1993 the guarantees provided under that Act do not apply.

4.6         Other than the warranties set out in these Terms and Conditions, all other express or implied warranties in respect of the Services and Products are excluded to the fullest extent permitted by law including, but not limited to, implied warranties of merchantability or fitness for a particular purpose. All statements, technical information and recommendations made by the manufacturer and/or us about the Services or Products are believed to be reliable, but do not constitute a guarantee or warranty express or implied by us to you.

4.7         You warrant that you are authorised to arrange each Call Out and, in providing the Services or Products, our access to your premises, use of the equipment, software, information or other material made available by you will not breach any third party rights.


5.        FORCE MAJEURE

5.1        Neither party is liable to the other for failing to meet their obligations under this agreement except as specified in the following clause 4.2 to the extent that the failure was caused by an Act of God or other circumstance beyond its reasonable control. However, where a party has been unable to perform its obligations for a period of sixty (60) days or more, the other party may give notice in writing to the first party.

5.2        Nothing in above preceding clause 4.1 shall excuse you from any obligation to make payments of sums due and owing to Melinjo under this agreement.

6.        CANCELLATION

6.1        We can terminate the provision of any service to you with thirty (30) days written notice if a third party service provider or carrier does anything that prevents us from supplying that service to you on a commercially viable basis.

6.2        We can terminate this agreement or the provision of any service to you immediately if you breach any of the terms of this agreement or if we reasonably believe that you have supplied incorrect or misleading information to us or you fail to meet our credit criteria.

6.3        If this agreement is terminated for any reason you must still pay us for services provided to you up to the date of termination. If you have prepaid for a service, no refund is payable to you on termination unless we agree otherwise.

7.        FAIR USE POLICY

7.1        Your use of the services must be fair, reasonable and not excessive, as reasonably determined by us by reference to average and/or estimated typical customer usage of the services. 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) (“Excessive Usage”).

7.2        If in our reasonable opinion we consider your usage to be unfair or unreasonable or constitute Excessive Usage we may immediately suspend, modify or restrict your use of the services or withdraw in full or in part your access to the services without notice to you or ask you to change your plan or pay additional charges or both.

7.3        For the avoidance of doubt, our Fair Use Policy applies to all national, person-to-person calls and texts for standard New Zealand numbers but excludes all special chargeable numbers. Our Fair Use Policy also applies to all unlimited data usage plans.


8.        INTERNET

8.1        Melinjo Internet connections are offered on a minimum of twelve (12) monthly basis. If you decide to cancel your service(s) within this period (as calculated from the date the billing commenced) then you will be required to pay any monthly fees upto the end of your 12 month term. You can terminate your service by providing thirty (30) days’ notice either in writing (help@melinjo.co.nz) or by calling us on 0800 003 245.

8.2        You are responsible for downloading to your computer(s) any emails or files that you wish to keep. You are also responsible for ensuring your mailbox does not reach or exceed its allocated storage limit. Once mailbox storage allocation is reached, receiving emails will be impacted. We may, without notice to you, remove any emails or files that remain on our servers for more than ninety (90) days.

7.3        You must not knowingly transmit any worms or viruses or use our service in a manner which is likely to damage or compromise the security of either the network of Melinjo or that of any other party.

8.4        You must use our service in a reasonable and responsible manner and in accordance with established "netiquette".

8.5        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 our services. We are also not liable for any viruses or other harmful code which you access or download via the Internet.

8.6        If you use our virus filter then you acknowledge that the service works by endeavoring to prevent our mail servers from forwarding contaminated emails or files to the recipient. However, we cannot guarantee that the service will prevent all viruses from being forwarded.

8.7        Any static IP addresses provided for use by you under this Agreement remain the property of Melinjo.

8.8        You agree that plan speeds refer to the maximum speed but actual speed depends on a variety of factors.

8.9        You consent to Melinjo sharing information about you with the Local Fibre Provider (LFC) – Chorus, Enable, UltraFast, Northpower to the extent necessary for the provision of the Melinjo Fibre Services to you. No right or benefit is conferred on you by the LFC.

8.10        In accepting the Melinjo Fibre, you agree to be bound by the LFC (End User) Terms as set out on the LFC’s website from time to time as follows:

  1. www.chorus.co.nz

  1. www.enable.net.nz

  1. www.ultrafast.co.nz

  1. www.northpowerfibre.co.nz

8.11        You hereby consent to allow Melinjo and its contractors to access your premises in order to construct, install, inspect, maintain or replace any equipment installed at your premises for the provision of the Melinjo products and services and you will ensure that Melinjo and its contractors have safe access to your premises for these purposes.

8.12        You warrant that you own the premises where the Melinjo Fibre will be installed and will be liable for any loss suffered by Melinjo if you do not own such premises. If you are not the owner of the premises, you must obtain the owner’s written consent for the Melinjo Fibre to be installed. You agree that the installation of the Melinjo Fibre at your premises is on the basis of the request that you have made to us and that we have relied upon your authority to make this request.

8.13        You are liable for all installation costs in relation to the Melinjo Fibre at your premises. Installation costs will be set out on your first Melinjo Fibre Services invoice. If Fibre Services have already been installed at your premises, you may be liable for set up charges for connection of Melinjo Fibre Services to premises.

8.14        Installation of Melinjo Fibre at your premises may require trench excavation. Restoration by Melinjo or its contractors of such excavation will be limited to grass restoration only. You will be responsible for any further restoration and the costs associated with such further restoration. This means that the cost of restoration of any paved, concreted, cobbled areas etc. will need to be met by you.

8.15        You must be present at your premises during the installation of your Melinjo Fibre.

8.16        The Melinjo Fibre is only available in locations which are sites enabled by your LFC, and where Melinjo have the required Handover connections in place to the LFC. You acknowledge that you may not be able to receive the Melinjo Fibre at your location.

8.17        If you are with another service provider and you wish to have your phone number ported to Melinjo, you must not cancel the services your existing service provider prior to your connection to Melinjo. If you do this, Melinjo cannot guarantee that your number will be available.

8.18        Once your Melinjo Fibre is connected, it is your responsibility to contact your previous service provider(s) to ensure that your previous services are cancelled and to avoid being billed for such services.

8.19        The copper wiring to your premises may be removed upon completion of the installation of your Melinjo Fibre and cannot be reinstalled. If the copper wiring is removed ONLY fibre services will be available at your premises.

8.20        You agree that you will not damage or tamper with any Melinjo and/or LFC devices provided at your premises for the delivery of the Melinjo Fibre and you will follow Melinjo’s instructions in relation to all such devices.

8.21        All equipment provided by the LFC in order to use the Melinjo Fibre will remain the property of the LFC.


9.        VOICE

9.1        Melinjo Voice connections are offered on an open term basis.  Or 12 months if you require a PSTN line. You can terminate your service by giving Melinjo ten (10) business days in advance notice either in writing (help@melinjo.co.nz) or by calling us on 0800 003 245.

9.2        You will be able to choose your plan from a list of plans which are available on our website.

9.3        You may cancel your existing plan and change to another plan if you wish. Please note that there will be an early termination or plan transfer fee. It is your responsibility to check whether any terms and conditions apply to your plan before you change it or transfer it. You are also responsible for checking the terms and conditions of the new plan you will be changing to.

9.4        If you acquired a VoIP Phone, any associated hardware or equipment from us or from any of our third parties or agents, then they are covered by the manufacturer’s warranty (if any).

9.5        If there is any physical damages occurred to any equipment that you rent from us, we will recover the cost of it from you.

9.6        We do not warrant that any VoIP Phone or other equipment supplied to you by someone else, and which has not been approved by us, will be compatible with the connecting network or will support your use of the Services.

9.7        If any VoIP Phone or other equipment supplied to you by someone else does not work properly, you need to contact the equipment supplier or manufacturer directly, rather than us, about the problem, which may be covered by the warranty (if any) offered by the relevant supplier or manufacturer.

9.8        We will assign to you or you may select from us (according to the availability) a landline number (VoIP phone number). Subject to the term of this agreement you have all the rights to use the landline number allocated to you.

9.9        If you disconnect your connection to the services and you have not ported your landline number provide by us, we may re-assign the phone number to another customer.


10.        WEB HOSTING

10.1        Melinjo web hosting services are offered on an open term basis. You can terminate your service by giving Melinjo ten (10) business days in advance notice either in writing (help@melinjo.co.nz) or by calling us on 0800 003 245.

10.2        We do our best to provide our web hosting service in a reliable manner. However, we do not guarantee that our web hosting service will always operate uninterrupted or error-free.

10.3        You acknowledge and agree you are solely responsible for backup of your software and data including website content.

10.4        You are responsible for the data, website content and information accessed, transmitted, processed and/or received via our web hosting service.

10.5        You agree to keep us protected against any legal action taken against us in connection with your use of our web hosting service.

10.6        You are responsible for ensuring that no unauthorised access is obtained to our web hosting service through your use of these services. You will be entirely responsible and liable for all activities conducted through your web hosting service whether authorised by you or not and any consequences if any person misuses your web hosting service or fails to comply with these terms and conditions.

10.7        You represent and warrant to us that no information you provide to us in relation to our web hosting service shall infringe any intellectual property or other legal rights of any third party.

10.8        You must not use, and you must take all reasonable precautions to ensure that no one uses, your web hosting services:

  1. fraudulently or in connection with a criminal offence;

  1. to send, knowingly receive, upload, download or use any material which is offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of copyright, confidence, privacy or any other rights;

  1. to cause annoyance, inconvenience or needless anxiety;

  1. to spam or to send or provide unsolicited advertising or promotional material or knowingly to receive responses to any spam, unsolicited advertising or promotional material sent or provided by any third party; and

  1. in an unlawful manner, in contravention of any legislation, laws, license or third party rights or in contravention of our Fair Use Policy we may have in place from time to time.

10.9        As part of our web hosting service you will be able to create your own website(s). If you do this you are responsible for the material that you or anyone else puts on your website(s).   Material on your website(s) must not, and the use of it must not, in any way be unlawful.

10.10        We may suspend access to your website, script or other application in the event we reasonably believe that such website, script or other application is the cause of interruptions to our provision of services to other customers.  Any such suspension or termination will not relieve you of your obligation to pay any applicable hosting charges.  In the event of any such suspension, we will notify you as soon as practicable so that you may take remedial action in order to regain access to your website, script or other application.

11.        DOMAIN NAMES

11.1        Melinjo Domain Names are offered on an open term basis. You can terminate your service by giving Melinjo ten (10) business days in advance notice either in writing (help@melinjo.co.nz) or by calling us on 0800 003 245.

11.2        You agree that you will:

  1. comply with the .nz policies. You agree that you have read and understood the current policies;

  1. make sure all information you give us is accurate and complete, keep us informed of changes to any information you give us, and that you have the authority to enter into this agreement;

  1. keep the unique authentication ID and other passwords for your domain names and any other security information that we give to you confidential, safe and secure;

  1. satisfy yourself that your use of a domain name will not infringe anybody's intellectual property rights and protect us, and everybody we are in any business relationship with to provide services to you, from any such claim;

  1. ensure that you only use our services for a lawful purpose;

  1. ensure that the use of any domain name registered to you does not interfere with other users of the Internet;

  1. ensure that any order of any authority having jurisdiction regarding any domain name registered to you is complied with;

  1. protect us, and everybody we have a business relationship with, against any legal action taken against us because of the receipt or use of our services by you or someone you are responsible for, including reliance by us or anybody we have a business relationship with, on information supplied by you.

11.3        You agree to make sure everyone you are responsible for or who uses a domain name registered to you also meets the above duties.

11.4        When a domain name in the .nz domain name space is registered to you, or in your name as directed by you, then you agree that the following information becomes available to any member of the public:

        

  1. your name;

  1. your contact details;

  1. the domain name, its commencement and expiry dates and addresses/details of the name servers for it, and our name;

  1. the domain name is registered in your name only because no other person has it according to the records of the register;

  1. neither we nor anybody else is representing anything else to anybody regarding that domain name;

  1. The entry of a domain name in the "who is" database shall not be taken as evidence of anything other than such registration;

  1. that you protect us and everybody we have a business relationship with to provide services to you, from any claim arising out of the domain name being registered in your name or as you direct.

11.5        If you transfer a domain name registered to you to another registrant or to be managed by another registrar, all charges owing to us shall become immediately due and payable on the date of transfer.

11.6        If you do not pay our charges for a domain name registered to you, we may:

  1. cancel registration of that domain name; or

  1. refuse to provide a service you request.

11.7        Unless you advise otherwise, we will set your domain name to auto-renew and we will bill you if the renewal is successful. If you do not pay our charges, you must transfer the domain name to another registrant.


12.0        ONSITE

12.1        In consideration of the Fees, we will perform the Services in accordance with these Terms and Conditions.

12.2        At the beginning of the Call Out:

  1. we will try to diagnose any problem described by you; and

  1. we may provide an estimate of the time required to provide any Services.

However, we do not guarantee any diagnosis or estimate of time will be accurate.

12.3        The duration of the Call Out will be agreed with you. If the Services are not complete within that duration, we will discuss the options available, which may include extending that Call Out, arranging another Call Out or abandoning the Services. You may stop a Call Out at any time subject to clause 11.2.

12.4         Regardless of clauses 11.2 or 11.3, once a Call Out commences, you must pay the Fees for that Call Out, including the Minimum Call Out Fee.

12.5         To enable us to undertake the Services:

  1. you must provide us with all information, assistance, co-operation and access to premises and equipment that we may reasonably require to undertake the Services; and

  1. you, or some person over 16 yrs, must be present while we provide the Services.

12.6        We will use reasonable endeavours to achieve the objectives of the Services but we provide no guarantee, express or implied that the objective will be achieved and we will not be liable for any failure to meet the objectives provided we have used our reasonable endeavours.

12.7         You acknowledge and agree that if you have ordered Products comprising software by electronic delivery and that software has been installed by us and the software licence is activated either on your computer or a computer you have agree to purchase, then it is not reasonably practicable to remove the software installation or de-activate the software. In that event and for that reason once you have ordered the software with the instruction to proceed with installation, you agree that you shall be committed to that purchase of the software and subject to these Terms and conditions and the software cannot be returned unless we agree otherwise pursuant to a specific individual agreement made with you by us at our discretion, within seven days of invoice.

12.8         Once you have confirmed your order with us for the supply of any Products, then unless we are unable to supply such Products upon the terms specified, you will be committed to the purchase of those Products and have no right of cancellation or refund of monies paid but subject at all times to these Terms and Conditions and your rights under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986, if applicable, unless we agree otherwise pursuant to a specific individual agreement made with you by us at our discretion, within seven days of invoice. We reserve the right in any such specific individual agreement to claim recovery of the reasonable administration and other cost we have incurred.

12.9         We will maintain as secret and confidential all information we obtain from you in providing the Services and will not use that information for any reason other than as necessary for providing the Services. This obligation will not apply to information that is in the public domain or that is known to us or obtained by us without breaching any obligation to you or that we are required to disclose by law.

12.10        You authorise us to collect, retain, use and provide to our staff and agents any personal information (“Information”) about you for the purposes of credit approval, meeting our obligations to you, and enforcing our rights against you.