Terms and Conditions of Supply
Operation of these terms and conditions
These terms and conditions apply and operate in addition to (and not in substitution for) your Connection Agreement and any Other Agreement which you may currently have with us and/or Vodafone New Zealand. If there is any conflict or inconsistency between these terms and conditions and those set out in your Connection Agreement or any Other Agreement, then the terms and conditions of your Connection Agreement and such Other Agreement (as the case may be) will prevail.
If you do not have a Connection Agreement, then these terms and conditions will apply to all of the products and services offered or promoted by us, whether via our Website or any Digital Mobile retail outlet.
Certain capitalised terms have the meanings set out in the Definitions section (see clause 50 below).
If you are under the age of 18, you must only use any products or services offered by us with parental or caregiver consent, provided they are over the age of 18 and accept these terms and conditions on your behalf.
Orders and Specifications
The name that will appear on your statement will be "DIGITAL MOBILE".
We shall not be deemed to have accepted your order for Products or Services unless it has been confirmed in writing by one of our authorised representatives.
You shall be responsible for ensuring any Product you purchase is of the correct specification for its intended use and location.
From time to time we may have to make changes in the specification of the Product:
to make it conform with any applicable safety or other statutory requirements; or
to make it reflect changes in the manufacturer’s specification.
We may also have to make other necessary changes in the specification of the Product from time to time, but these will not materially reduce the quality or performance of the Product.
All prices are quoted in New Zealand Dollars. You agree to pay our prices, charges and costs in accordance with the terms contained in your Connection Agreement (if you have one), any Other Agreement, or in accordance with the terms which we display for any particular Product or Service, whether on our website or otherwise. You agree to do so irrespective of who uses the Products or Services which we supply to you. These prices, charges and costs will appear on your bill from us.
Terms of Payment
If you fail to make any payment on the date it is due then, without prejudice to any other right or remedy we may have, we can:
cancel this agreement between you and us; or
suspend any further deliveries to you; and/or
charge you interest (both before and after any judgement) on the amount unpaid, at the rate of 2% above the base lending rate of the Bank of New Zealand as published from time to time. Interest is charged on a per annum basis, calculated daily.
Risk And Property
Once the Product has been collected by you, and/or fitted (if appropriate), or otherwise received by you, all risk of damage to, or loss of, the Product shall pass to you.
Irrespective of delivery and the passing of risk in the Product, or any other provision of these conditions, the ownership of the Product shall not pass to you until we have received in cash or cleared funds payment in full for the price of the Product and all other Product agreed to be sold by us to you for which payment is then due.
Until such time as the ownership of the Product passes to you, you shall hold it on our behalf and keep it safe and identified as our property.
Until such time as the ownership of the Product passes to you, we shall (subject to Clause 15) be entitled to ask you to return the Product to us.
We agree that we will not exercise our right under Clause 14 where you have entered into an Connection Agreement, and are duly performing your obligations as to payment under it and have paid all outstanding monies referred to at Clause 9.
Warranties and Replacements
Subject to the clauses set out below, the Product, where new, is sold with the benefit of and subject to the terms applicable to such warranty or guarantee as is given by the manufacturer of the Product.
No liability is accepted for:
any defect resulting from fair wear and tear;
rain, water or other liquid damage;
accidental or wilful damage;
abnormal working conditions;
failure to follow the manufacturer’s instructions (whether oral or in writing); or
misuse or alteration or repair of the Product without the manufacturer’s approval.
There shall be no liability under any such warranty or guarantee if the total price for the Product has not been paid by the due date for payment.
Subject to Clause 21, if a valid warranty claim is made within the warranty period, we will replace or repair (at our discretion) the Product free of charge. After the expiry of the warranty period, we may make a charge for either of these remedies.
If you have a valid insurance package supplied by Vodafone and your Mobile Phone or Smart Phone is being repaired by us, we will (where practicable and subject to availability) lend you a mobile phone (which may not be a Smart Phone) with the same mobile phone number until your Mobile Phone is returned. For some models of loan phones, we may require a deposit.
We shall (at our or the manufacturer’s option) have the right to fulfill our obligations under Clause 19 by refunding you the price you paid (or a proportionate part thereof, depending upon age and condition). That will be the extent of our liability to you.
Other than as set out above, we shall be under no other obligation to exchange, repair or replace the Product or provide any refunds. You accept that you are solely responsible for backing up any important data stored on the Product prior to the commencement of any repairs and you hereby acknowledge that any such data (together with any ringtone or logo) may be lost during the repair and will be lost if the Product is exchanged. We are not liable for this and it is therefore your responsibility to back up any such data stored on your Product.
We recommend that you insure your Mobile Phone/Smart Phone for its replacement value (including cover against calls made if it is lost or stolen). If your Mobile Phone/Smart Phone is lost, stolen or damaged and you want to replace it, unless this is covered by insurance, you will have to purchase a new Mobile Phone/Smart Phone (which may be at the normal retail price) and arrange with Vodafone for a replacement SIM card (there may be a charge for the SIM card). In these circumstances, your existing Connection Agreement will continue and you will remain liable for all line rental, call and other charges under it but you will not need to enter into a new Connection Agreement to replace it or in addition to it.
We do not represent or warrant that any Product or Service offered or supplied by us will:
be free of viruses or other harmful features.
25. We are not responsible for:
any Product which is not owned or supplied by us, and if it is supplied by us, then we are only responsible in accordance with the express terms of supply, or as set out in these terms and conditions or any Connection Agreement or Other Agreement which we may have with you.
any use of our Products or Services in a manner which is inconsistent with the directions or instructions for use or which is contrary to these terms and conditions or the terms and conditions set out in your Connection Agreement or Other Agreement.
We may use subcontractors to provide products or services to you. Without limiting clauses 28 to 31 but subject to clause 32, we will not be liable to you, or anyone claiming through you, for the direct or indirect consequences of any failure or default by any such contractor.
Without limiting clauses 28 to 32, we disclaim any liability in relation to:
the acts or omissions of any third parties, in relation to any default by them in relation to the provision of, or access to, any of our products or services;
the content of any communication (whether voice, data or otherwise) which you send or receive using any of our products or services; and
any corruption or loss of data or other content which you or anyone else may experience as a result of using our products or services.
Subject to clause 32, we (including our officers, employees and agents) will not be liable (whether in contract, tort or otherwise whatsoever) to you or any third party claiming through you, for any direct, indirect or consequential damage, loss, cost or expense (including loss of profits, loss of data or revenue, loss of use, lost business or missed opportunities, wasted expenditure or savings which you might have had) arising from the use of any of our Products or Services.
If, notwithstanding clause 28 but subject to clause 32, a court of competent jurisdiction holds us (or any of our officers, employees or agents) liable in respect of any matter arising under or incidental to these terms and conditions, such liability will be limited to the lesser of:
$5,000 for any event or series of events; and
the amount of charges and other payments made by you to us in the six month period immediately preceding the date upon which the event causing your loss occurred.
In respect of the provision of any Products or Services, if any term, condition or warranty is implied into these terms and conditions which by law cannot be excluded, but may be limited, then, subject to such law and clause 29, our liability in respect of such term, condition or warranty (including to any person claiming through you) is limited, at our option, to either:
re-supplying similar products or services on substantially similar terms; or
payment of the cost of having similar products or services supplied on substantially similar terms.
Subject to clause 32 and any express provision contained in these terms and conditions or a Connection Agreement or Other Agreement which you may have with us, we exclude all implied representations and warranties in respect of the use of our Website as well as any of our Products or Services to the fullest extent permitted by law.
If you are using any of our Products or Services for purposes other than in relation to a business, then we accept that you may have rights under the Consumer Guarantees Act 1993 or other legislation. Nothing in these terms and conditions is intended to affect any rights which you may have under such legislation which we are unable by law to exclude or limit in accordance with clauses 28 to 31.
Whilst using any Product or Service, you must:
comply with these terms and conditions as well as the terms of any Connection Agreement and Other Agreement at all times;
make sure all information which you supply to us is current, complete, accurate and is provided in a timely manner;
comply with all applicable laws, regulations, standards and codes including but not limited to the Crimes Act 1961, Fair Trading Act 1986, Copyright Act 1994, Defamation Act 1992 and the Privacy Act 1993;
ensure that anyone who uses our products or services as supplied to you, does so in accordance with these terms and conditions as well as any Connection Agreement which you have with us; and
ensure that any Security Information is kept confidential at all times and not disclosed to third parties.
Use of our Products and Services
You may only use our Products and Services:
in accordance with these terms and conditions and any Connection Agreement and any Other Agreements which you may have with us;
for your own personal use, or, if you are a business customer, for your own internal business purposes.
You must not use any of our Products or Services:
in breach of any legislative or regulatory provision or for any other unlawful act;
to damage or disrupt our Website or any of the Products or Services offered by us;
to access, use or interfere with anybody else’s computer system or data whether by hacking or by other means;
to intercept or in any other way deal with email or other communications which are not intended by the sender to be received by you;
for sending Spam, chain letters, pyramid schemes, hoaxes or other similar unsolicited communications of any kind;
to abuse, defame, threaten, stalk or harass others;
for sending objectionable language, content, or any expressions of hatred, racism or anti-religious remarks of any kind;
for running any network scanning software, spiders, spyware software, robots, open relay software, or any such similar software;
for introducing any viruses, worms, trojan horses, time bombs or bots or any other harmful or destructive items or in any other way interfere with our, or anyone else’s network or computer system;
for using any software or device which may interfere with the services which are intended to be enjoyed by other users through the use of mail bombs, war dialling, pinging or other disruptive technical means;
for transmitting live video, live audio or for making similar traffic demands on our Network, or for using IP Multicast without or prior written consent;
using a false identity for the purpose of misleading others as to the identity of the sender or origin of any message;
by using any third party business to access our Website or any of our Services on your behalf without our prior written consent which may be withheld at our absolute discretion; or
for the purpose of reselling (in any way) any of our Products or Services to third parties.
We either own or otherwise have the right to use the intellectual property rights with respect to Products or Services which we make available to you (collectively our “Intellectual Property”). You acknowledge and accept that we are either the owner, or otherwise have the right to use our Intellectual Property and that you will not assert any claim or interest in or to our Intellectual Property, other than in relation to those rights which are expressly provided to you in these terms and conditions or under a Connection Agreement or in any Other Agreement. In particular but without limitation, our Intellectual Property extends to copyright, Trademarks and design rights which we either own or otherwise have the right to use.
You must not copy or reproduce (whether digitally, electronically, by framing or linking, or in hard copy or by any means whatsoever) or in any way use any of our Intellectual Property without our prior written consent, unless such coping, reproduction or use is required for the purpose of using any of our products or services in the manner in which they are intended to be used.
We accept that, in using our Products and Services, you may include items of intellectual property which belong to you or third parties. You warrant to us that all such intellectual property which you use either belongs to you or you otherwise have the right to use that intellectual property in conjunction with use of our products or services. You agree to indemnify us for all loss, damage, cost and expense which we suffer as a result of a breach of this clause by you. You also grant us and our suppliers the perpetual, global, non-exclusive and royalty free right to use that intellectual property in the context of our businesses.
Depending on which of our Products or Services you wish to use, we may provide Security Information to you, and we may also require you to provide Security Information to us which will enable you to access and use the relevant product or service. You must treat all Security Information as strictly confidential, and not disclose it to anyone. We are entitled to rely on the provision of your Security Information without further enquiry, as evidence of your identity and authority to use the relevant product or service. As a result, you will be liable for the costs and charges in relation to all such use. Any Security Information which is generated by us and supplied to you remains our property at all times.
You agree to notify us immediately of any actual or suspected unauthorised use of the Security Information relating to you. Such notice will not release you from any liability you may have to us in relation to the relevant product or service, but we will use all reasonable endeavours to mitigate the effects of that unauthorised use from your perspective.
Breach, Suspension and Termination of Service
In the case of a breach of these terms and conditions by you or any other person, we are free to decide whether we wish to take action for such breach, and if so when and how. We will not be prevented by the passage of time or any other matter, from exercising our rights.
Payment on time is of the essence. That is to say that if you do not pay on time, we can terminate the arrangement between you and us. If we do that, we will either not provide you with the Product, or if we have already done so, you will give it back to us, failing which we shall be entitled to take it back.
You cannot compel us to take action against any third party in respect of any breach by them of these terms and conditions which may be causing you damage, loss, harm or inconvenience, and furthermore, you cannot take legal action against us in an attempt to avoid such damage, loss, harm or inconvenience or recover compensation for the same.
Changes to these Terms and Conditions
You accept that we may change these terms and conditions at any time and that any revised terms and conditions displayed on our Website from time to time will apply to your use of any products or services we offer or supply.
You may not assign any of your rights or obligations under these terms and conditions. We may assign our rights and obligations to a third party at any time, without your consent and without providing you with advance notice of such assignment.
These terms and conditions are governed and construed in accordance with New Zealand law and you accept the exclusive jurisdiction of the New Zealand courts.
If a court of competent jurisdiction rules that any part of these terms and conditions are unenforceable for any reason, then such ruling will not affect the remaining provisions of these terms and conditions which will remain in full force and effect at all times.
These terms and conditions (together with any Connection Agreement or Other Agreement) constitute the entire terms and conditions which are applicable between you and us. Any other documents, statements or other representations are expressly excluded.
Unless the context otherwise requires, in these terms and conditions, the following terms have the following meanings:
"Connection Agreement" means a Vodafone Network connection agreement which you have with Vodafone, whether for prepay services, on account service or any other service;
"Mobile Phone" means a cellular telephone or other device which incorporates a SIM card used by you to receive the Services and any accessories included in the price of your phone provided to you by us;
“Product” means any voice and/or data communication hardware device including a Mobile Phone, a Smart Phone and a desktop device (such as a PC);
"Network" means the Vodafone telecommunications network and related infrastructure and equipment;
“Other Agreement” or “Other Agreements” means any other terms and conditions that apply to you in relation to any products or services offered or supplied by us or Vodafone;
"Security Information" means any login, username, password, PIN (Personal Identification Number) or other personalised security information relating to your use of any of our Products or Services;
“Services” means services including services enabling you to make or receive calls and to send and receive data by means of the Network;
"Smart Phone" means PDA, MDA, XDA, Blackberry, iPhone and similar devices and any accessories included in the price of your device provided to you by us
"Spam" means the sending of bulk, unsolicited messages to a large number of remote users normally for advertising purposes;
"Trademarks" means all of our trademarks, whether registered or unregistered and includes Vodafone’s trademarks;
"Vodafone" means Vodafone New Zealand Limited;
"we", "us" and "our" means Centurion GSM Limited, and in relation to any of our rights (but not our obligations), includes any company within the group of companies of which Vodafone New Zealand Limited forms part, as well as its affiliates, officers and employees.
"you" means you our customer, whether an individual, a company, or any other form of entity;
“Website” means our website with the url address www.digitalmobile.co.nz or any replacement thereof.