POLLNET LIMITED

1        Definitions

24-Month Plan means, in relation to the Services, a plan with a set term of 24 months;

CGA means the Consumer Guarantees Act 1993;

Consumer has the same definition as defined in section 2 of the CGA;

FTA means the Fair Trading Act 1986;

Force Majeure Event means any act, event, non-happening, omission, or accident beyond our reasonable control.

GST means goods and services tax pursuant to the Goods and Services Tax Act 1985;

Intellectual Property Rights includes copyright and all rights conferred under statute, common law or equity in relation to inventions (including patents), registered or unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity;

Letter of Offer means any specific letter of offer for Services provided by us to you, if applicable;

LFC means Local Fibre Company, including, but not limited to, Chorus Limited, Enable Services Limited, Ultrafast Fibre Limited, or Northpower Limited;

Monthly Plan means, in relation to the Services, a rollover plan that renews every month subject to these Terms being satisfied;

Plan means either Monthly Plan or 24-Month Plan, as applicable in the circumstances;

Services means all services provided by us from time to time, including, but not limited to, providing broadband internet services and the installation of equipment required for such internet services;

Sign-Up Page means the page on our Website through which you may sign up for a Plan (as applicable: https://www.poll.net.nz/residential and https://www.poll.net.nz/business);

Terms means these terms and conditions and any additional terms set out on the Sign-Up Page;

we, us or our means Pollnet Limited, its successors and assigns or any person acting on behalf of and with the authority of Pollnet Limited;

Working Day means a day other than a Saturday, Sunday or public holiday (or day observed) in Canterbury, New Zealand; and

you or your means the individual or entity that signs up for the Service with us.

Words in the singular include the plural and vice versa.

2        Acceptance

2.1     These Terms apply to the provision of the Services for the duration of your Plan.

2.2     You acknowledge and agree that you become bound by these Terms when you sign up to a Plan using the Sign-Up Form or sign a Letter of Offer (as applicable).

2.3     We will take your continued acceptance of our Services as your continued acceptance of these Terms.

3        Services

3.1     Should we provide you the Services, then:

(a)     you agree to us providing any of your information to the relevant LFC to the extent necessary for providing Services to you;

(b)     you agree to be bound by the relevant LFC’s end user terms as set out on that LFC’s website.

3.2     In respect of any installation we complete for the Services, you confirm:

(a)     you either:

(i)       own the premises in which the Service will be installed and connected; or

(ii)      have the consent of those that own the premises in which the Service will be installed and connected. 

(b)     Should we request, you will be present at the installation.

(c)      You acknowledge and agree that a “non-standard” installation may result in additional installation charges. We will endeavour to advise you of these fees prior to completing any installation, or as soon as reasonably possible during the installation process.  

4        Services

4.1     We will provide you the Services on a non-exclusive basis.

4.2     In carrying out the Services for you, we will:

(a)    take all reasonable care and skill; and

(b)    comply with all laws, regulations and good industry practice applicable to the Services.

4.3     During the course of providing the Services we may provide strategic advice.  Such advice will be given on the basis that any decision or action taken by you based on that advice will be your responsibility and we assume no responsibility for the consequences of the decisions or actions taken by you.

4.4     We will comply with all relevant requirements of the Health and Safety at Work Act 2015 (and any subsequent amendments to the legislation, and any regulations under that Act).

5        Your Obligations

5.1     You agree to use the Services in accordance with these Terms.

5.2     We provide our Services using Devoli Limited’s software. You acknowledge and agree that, in addition to these Terms, the Services are subject to the terms and conditions imposed on us by Devoli Limited. You further acknowledge and agree that any Services we offer to you are subject to change as a result of Devoli Limited’s terms and conditions changing.

5.3     You can access Devoli Limited’s terms and conditions on their website (https://devoli.com).

6        Pricing

6.1     The price for Services will be as recorded on the Sign-Up Page or Letter of offer (as applicable).

6.2     Unless agreed otherwise, GST will be payable by you as an additional amount on all prices and charges.

6.3     We reserve the right to adjust our pricing as required by providing written notice to you of such adjustment. Should you not accept the updated pricing, you will be entitled to cancel your Services with us by providing us 5 working days’ written notice.

7        Invoicing and Payment

7.1     Unless otherwise agreed:

(a)         we will invoice you at the start of each month for all Services supplied by us in the previous month;

(b)         you must pay our invoices in full, without any deduction, withholding or set-off of any kind by the date set out in our invoice, and if no date is specified, by the 20th day of the month following the date of the relevant invoice; and

(c)         payments must be made by direct bank transfer to the account specified on our invoices. Payment is deemed to have occurred at the time that we can see cleared funds in our account.

7.2     We may withhold any credit due to you and apply that credit against any amount owing under your Account.

7.3     If you wish to dispute any invoice you must raise the dispute by notice in writing to us on or before the due date for payment, and pay when due all undisputed amounts. Disputes on invoices will be resolved in accordance with clause 14.1.

7.4     If you do not pay us any amount when due under these Terms, then, without prejudice to any other rights or remedies we may have, we may:

(a)     charge you a late payment fee of $10 including GST per month until the date the overdue amount is paid; and

(b)     suspend the provision of Services if the overdue amount remains unpaid one month past the due date for payment.

8        Privacy

8.1     As per our Privacy Policy (found here), in your dealings with us we may sometimes collect and hold personal information about you.  If you are an organisation, this may include collecting and holding personal information about your personnel. 

8.2     We may also source information from publicly available sources.  We will use that information to carry out the Services, collect any debts owed to us and to comply with our legal obligations.  Failure to provide information we request may prevent or hinder us from providing Services.

8.3     The information we collect and hold about you will be kept at our offices and/or at files storage sites elsewhere in New Zealand.  We may also use service providers who store (on our behalf) the information overseas and information may be stored electronically.  We use such security safeguards as are reasonable in the circumstances to protect it.

8.4     If we hold personal information about you, you have the right to access and correct this information as set out in the Privacy Act 2020.

8.5     We will otherwise collect, retain, use, and disclose any personal information collected in connection with our Services in accordance with our obligations under the Privacy Act 2020.

9        Confidentiality

9.1     We will hold in confidence all information concerning you or your affairs that we acquire while performing the Services. We will only disclose this confidential information if it is necessary to provide the Services or if it is required by law.

9.2     We acknowledge that you own, as permitted by law, any data that you use, access, download and otherwise use when engaging with the Services. We may track your data usage, and we will maintain the confidentiality of that data in accordance with these Terms.

10      Termination

10.1   If you are on a Monthly Plan, you may terminate the Services by giving us one month’s written notice.

10.2   If you are on a 24-Month Plan, you may terminate the Services by giving us two months’ written notice. You will be liable to pay an early termination fee not exceeding the cost of two months’ worth of Services.

10.3   We may terminate your Plan with one month’s written notice if for any reason we are unable to provide the Services to you.

10.4   We may immediately terminate your Plan if you:

(a)     behave in a way that we consider at our discretion to be threatening, discriminatory, abusive, bullying, or otherwise unsavoury towards our staff; or

(b)     use the Services for unlawful purposes.

11      Liability

11.1   You agree that our liability is limited as follows:

(a)    Our Services are given only for your benefit and in your interest. They are not to be relied on by third parties unless we agree in writing.

(b)    We do not accept liability for any harm, or loss caused by any third-party involved in providing Services.

(c)    We are not liable to you under these Terms or in connection with the Services for:

(i)    any indirect, consequential or special loss of any kind;

(ii)   any loss of profit, loss of business or damage to goodwill,

that you may suffer or incur, however arising, whether under contract, in tort or otherwise.

11.2   If we fail to provide the Services to you in accordance with these Terms, we may at our option perform the Services again or refund you the amount paid for the Services. Where we elect to perform the Services again, we will try to do so within a reasonable timeframe, but we are not liable to you for any delay.

11.3   Notwithstanding anything else in these Terms, the maximum aggregate amount payable by us in connection with these Terms or the Services, whether in contract, tort or otherwise, in relation to claims, damages, liabilities, losses or expenses, shall be the fee paid for the Services (exclusive of GST and disbursements) with a maximum limit of $NZ2,000 (that is, the lesser of these two limits).

11.4   Nothing in these Terms (including, without limitation, in this clause 11) is intended to have the effect of contracting out of the provisions of the CGA or the FTA except to the extent permitted by those Acts. Accordingly, where you are:

(a)    a Consumer, nothing in these Terms shall limit, or attempt to limit, your rights under the CGA or FTA including, without limitation, the remedies under the CGA; and

(b)    in trade and these Terms constitute a “small trade contract” (as defined in the FTA) (“Small Trader”) any provision of these Terms declared to be an unfair contract term shall not apply to you.

12      Intellectual Property

12.1   You agree that any new Intellectual Property Rights created by us during the course of providing the Services will be solely owned by us. We grant you a royalty-free licence in perpetuity to use the new Intellectual Property to the extent that you require this to obtain the benefit of the Services.  We do not warrant the suitability of new Intellectual Property for any purpose other than to obtain the benefit of the Services or any other use expressly stated in the Letter of Offer.

12.2   You will own any data that we collect on your behalf in providing the Services, once you have fully paid us for the Services. You grant us a license to use that data for our business purposes. We may not disclose that data to any other party, other that in an aggregated form, without your permission (unless required by law to do so).

13      No Warranty

All warranties and representations not expressly stated in these Terms (whether express, statutory, implied or otherwise) are excluded to the maximum extent permitted by law.

14      General

14.1   Disputes: If a dispute arises regarding these Terms or the Services, we will both try to resolve the dispute by good faith negotiations. If we cannot resolve the dispute during negotiations, either of us may refer the dispute to mediation by notice in writing, to a mediator to be agreed within five Working Days of that notice or, failing agreement, by the President of the New Zealand Law Society or their nominee. We will share the costs of the mediator equally with you, unless agreed otherwise in mediation.

14.2   Enforcement: The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision.

14.3   Assignment:  You are not entitled to assign or transfer any rights or obligations you have under these Terms without our prior written consent.

14.4   Governing Law: These terms are governed by New Zealand law and New Zealand Courts have non-exclusive jurisdiction.

14.5   Variation: These Terms may be varied by agreement in writing and/or may change from time to time as uploaded on our Website. It is your obligation to check that you are viewing our latest Terms.

14.6   Legislation: Any reference to legislation in these Terms includes a reference to any amended or substitute legislation and any regulations enacted under that legislation.

14.7   Severability: Each clause of these Terms is separately binding. If any clause is void, unenforceable or otherwise ineffective the remaining clauses will continue to be valid and enforceable.

14.8   Joint and Several Liability: Where you comprise more than one person or entity then the obligations between those persons under these Terms is joint and several.

14.9   Waiver: A waiver of these Terms will only be effective if given by us in writing and only to the extent expressly stated. Any waiver will not affect our future rights under these Terms.

14.10 Force Majeure: We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused a Force Majeure Event. Our performance is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period.

14.11 Other Agreements: Where these Terms conflict with a term on the Sign-Up Page or in the Letter of Offer, the term on the Sign-Up Page or in the Letter of Offer shall prevail to the extent of the inconsistency.