Conversant

 1. Terms

1.1 These terms and conditions set out the basis on which Conversant Limited (“we”, “our” or “us”) provides telephone and other services (the “services”) together with related goods including all such goods described in invoices issued by us to you (“goods”) to our customers (“you” or “your”).

1.2 Additional terms may apply to your use of some of the services or the provision of goods by us. If so, we will tell you what those terms are (“additional terms”). If there is any conflict between these terms and any additional terms, the additional terms will prevail.

2. Services

2.1 We are not obliged to provide the services unless we accept your application. We can decide whether or not to accept any application.

2.2 We will use all reasonable endeavours to make the services available to you at all times. If the services are unavailable for any reason we will endeavour to restore service as soon as possible.

2.3 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 services.

2.4 We can suspend or restrict the services at any time if:

• we consider it necessary to protect or maintain the services; or
• we believe that you have breached any of our terms and conditions.

3. Goods

3.1 The purchase price is for goods supplied and packed, and is exclusive of installation and maintenance.

3.2 Where we agree to transport the goods to a specified place, we will deliver, or arrange delivery of, the goods to that place. Except where otherwise agreed, you will pay for all resulting transportation costs.

3.3 If no place of delivery is specified, delivery shall take place at the time when the goods are made available for despatch at our premises.

3.4 Any time stated for delivery is an estimate only. No claim shall be made by you on account of late shipment, or delivery, however caused.

3.5 Please contact us should you wish to return good(s) for any reason. All goods to be returned must have a Goods Return Authority issued by us. The issue of a Goods Return Authority does not guarantee that we will accept the return.

3.6 Without limiting any rights you may have under the Consumer Guarantees Act 1993 (“CGA”), where faulty goods are returned to us and you have requested a Goods Return Authority within 14 days of despatch of the goods by us we shall, at our option and your sole remedy, either:

• refund the purchase price of the faulty goods to you in full; or
• replace the faulty goods, provided that the faulty goods (and any packaging or labelling) have not been damaged in any way by you, your employees, agents ,sub-contractors or customers and have not been used for any purpose other than that for which they were intended or been modified or incorrectly installed, maintained, handled or stored.

3.7 Non-faulty goods which we agree to accept return of, must be in saleable condition, and will only be refunded at 90% of the purchase price (being subject to a 10% restocking fee). Freight, delivery and insurance charges incurred in respect of such returned goods will not be credited under any circumstances.

3.8 Risk of any loss, damage or deterioration of or to the goods passes to you on delivery.

3.9 To secure payment of all amounts owing to us in respect of the goods and the performance of all your other obligations to us under these terms and any additional terms, you grant to us a Security Interest (as defined in section 17 of Personal Property Securities Act 1999 (“PPSA”) in all the goods supplied by us to you under these terms and any additional terms. By accepting delivery of the goods, you acknowledge that:

• these terms, any additional terms and any related invoice constitutes a security agreement for the purposes of section 36 of the PPSA;
• you have received value as at the date of first delivery of the goods and have not agreed to postpone the time for attachment of the Security Interest granted to us under this agreement.

3.10 You will provide all information and do all things that we may require to ensure that we have a perfected Security Interest in respect of the goods under the PPSA.

3.11 Ownership of the goods remains with us and does not pass to you until you pay all amounts you owe to us or resell the goods in accordance with these terms. Until all amounts owing by you to us have been paid and all your other obligations to us have been met:

• you must keep full and complete records of the goods, store them separately or clearly identify them as belonging to us and give us the right to inspect the goods at all reasonable times; and
• you must advise us immediately of any Event of Default or any action by third parties (including any of its creditors) affecting our interest in the goods; and
• we authorise you in the ordinary course of your business to use the goods or sell them for full consideration. This authority is revoked from the earlier of when an Event of Default occurs or we notify you in writing that this authority is revoked; and
• other than this, you must not sell, lease, dispose of, create a Security Interest in, mortgage or part with possession of the goods or any interest in them (or purport to attempt to do such a thing) or permit any lien over the goods; and
• you must return the goods if requested to do so by us following non-payment of any amount owing by you to us or non-fulfilment of any of your other obligations to us, without affecting any other rights we may have; and
• we can subject to the Credit (Repossession) Act 1997, and without notice, enter the premises where the goods are stored and remove them without being responsible for any damage caused in doing so; and
• we can resell any of the goods and apply the proceeds of sale in reduction of amounts you owe to us; and
• you must not give us a written demand or allow any other person to give us a written demand requiring us to register a financing change statement under the PPSA or enter into or allow any other person to enter into the register of personal property securities a financing change statement under the PPSA in relation to the goods; and

3.12 You waive your right under the PPSA to:

• receive a copy of any verification statement in respect of any financing statement or financing change statement registered by us in respect of any goods;
• receive any notice that we intend to sell the goods or to retain the goods on enforcement of the Security Interest granted to us under this agreement;
• object to our proposal to retain the goods in satisfaction of any obligation owed by you to us; and
• receive a statement of account on sale of the goods.

3.13 If you resell or use the goods before ownership of the goods has passed to you, the proceeds of such sale or use shall be received and held by you (in whatever form) in trust for both you and us. Our interest as beneficiary under that trust shall be that portion of the proceeds which does not exceed all amounts you owe us. You will be entitled to the balance of the proceeds.

3.14 We can bring an action for the price of the goods sold even where ownership of the goods may not have passed to you.

3.15 “Event of Default” means any of the following events:

• you fail to comply with our applicable terms and conditions;
• you have a receiver, liquidator, statutory manager, administrator or similar official appointed in respect of you or any of your property, or any security over any substantial part of your assets is enforced;
• you cease to carry on all or substantially all of your business, are unable to pay your debts when due, or presumed to be unable to pay your debts under any law;
• you make an assignment for the benefit of, or enter into or make any arrangement or compromise with, your creditors or stop payments to your creditors generally;
• you become, or are presumed to be, insolvent or bankrupt;
• anything having a similar effect to any of the events specified above happens under the law of any applicable jurisdiction; or
• if you are an individual, anything having a similar effect to any of the events specified above happens in respect of you.

4. Charges

4.1 The price excludes any amount payable in respect of goods and services tax payable under the Goods and Services Tax Act 1985 (“GST”), which will be paid by the you in addition to the price.

4.2 You must pay our charges for the services or goods we provide to you, regardless of whether you or someone else uses those services or goods. We may vary our charges from time to time. If we increase any charge we will give you as much notice as reasonably possible.

4.3 We will invoice you for the services or goods we provide to you. However we may elect to carry forward charges to the next billing period if your usage is below a minimum level. Fixed charges are payable in advance. Usage based charges (such as toll calls) are payable in arrears.

4.4 You must pay each invoice within 19 days of the invoice date (“due date”). If you do not pay any invoice within that time we may:

• 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
• withhold any rebate, discount or similar incentive which would otherwise be available to you; and
• suspend or restrict your service; and
• recover from you any debt recovery costs; and
• require you to put in place a direct debit payment arrangement for payment of our invoices.

4.5 If you wish to raise a genuine dispute regarding an invoice of ours you must do so in writing on or before the due date. We will consider any issues raised in good faith and will promptly advise you of any resolution or amendment to our charges.

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

4.7 If you breach any term of this agreement, and we incur costs as a result, then you must pay those costs if we require you to do so.

5. Using the services

5.1 You must not use the services in a way which:

• breaks any laws;
• infringes anyone's rights; or
• is malicious, obscene or offensive.

5.2 You must keep confidential any password or PIN number which is used by you to access the services and we recommend that you change this on a regular basis for security reasons. You must also change your password or PIN number if we ask you to do so.

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

5.4 You must ensure that all information you give us is correct. Where any information you have supplied to us changes (such as contact details) you must provide us with updated information as soon as possible.

5.5 You agree that we can act on any verbal instructions you give us in relation to the services.

5.6 We may install equipment and carry out other work at a customer's premises. If we do so at your premises, you must allow us and our contractors access as and when we reasonably require (and you must obtain any necessary consents to such access) for the purposes of installing, maintaining, monitoring and removing such equipment or carrying out such work.

6. Phone numbers and directories

6.1 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.

6.2 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.

6.3 Subject to the terms of the Consumer Guarantees Act 1993, you agree that neither we nor any directory company (or their officers, employees, contractors or agents) has any liability to you in connection with the directory assistance service or your phone book listing. For the purposes of the Contracts (Privity) Act 1982, this clause is intended to confer a benefit which those third parties can enforce.

7. Term, termination and money back guarantee

7.1 Either you or we can terminate the service on giving the other 30 days notice in writing.

7.2 You may cancel the service within 30 days of the activation date for any reason by providing notice to us in writing. In which circumstance we will refund in full all setup, installation and ongoing charges. We will not refund number port costs, hardware costs and calling costs.

7.3 We can terminate this agreement, or the provision of any service to you, immediately if you breach any term of this agreement, an Event of Default occurs or if we reasonably believe that you have supplied incorrect or misleading information to us.

7.4 Except as provided in clause 7.2, 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.

8. Liability

8.1 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.

8.2 Except as expressly provided elsewhere in this agreement, to the extent permitted by law, we exclude all of our liability to you in connection with us providing goods or services to you or failing to provide goods or 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):

• if any communication you make is intercepted; or
• if any communication you make is not properly transmitted or received; or
• if any of the services are not available at any time or are faulty; or
• for any delay in commencing the provision of services; or
• if any software we supply does not operate properly; or
• for any error in any directory listing which we arrange; or
• if your computer becomes affected by any virus or worm.

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

8.4 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. For the purposes of the Contracts (Privity) Act 1982,this clause is intended to confer a benefit which those third parties can enforce.

8.5 If you are a consumer (as defined in the CGA) and:

• are acquiring or holding yourself out as acquiring the goods and/or services for a business purpose, the CGA will not apply; and
• we do not guarantee that repair facilities and spare parts for the goods will be available.

8.6 Subject to clause 8.5, nothing in these terms or the additional terms will affect or limit any rights you have under the CGA.

9. Privacy

9.1 You may at times supply us with personal information about yourself or individuals that are employees, shareholders or directors of you, for example, when you make an enquiry or become a customer. We may also obtain personal information about you and related individuals from your use of our services or from credit reporting agencies.

9.2 By contacting us,  you agree to us using your personal information and, where appropriate, disclosing it to third parties involved in the service provision, credit reporting agencies, debt collection agencies and our related parties to provide you with services, for marketing and promotional purposes, for credit checking and collection and to research or communicate with you about our current and future services.  We may also notify you of other intended recipients or purposes at the time of collection of your personal information.  We may not be able to provide you with certain services if all the requested information is not provided.

9.3 Information (including default information) may from time to time be disclosed to, and collected from, trade references you provide to us, credit reporting agencies (such as Baycorp Advantage, P O Box 33, Auckland) and debt collection agencies for credit assessment and control and debt recovery. Information disclosed to credit reporting agencies (including default information) will be held by each agency on its system, accessed by the customers of the credit reporting database and used to provide its credit reporting services (including the maintenance of credit information files and supplying the information to other customers of the relevant credit reporting agency).

9.4 Any personal information we collect is kept at Conversant Limited’s offices at First Floor, 83-85 Victoria Rd, Devonport, North Shore City, New Zealand. Under the Privacy Act, individuals have rights of access to, and correction of, their personal information. You are entitled to see any information we hold about you (although you must pay our reasonable charge for making it available) and to request that any incorrect information be corrected. Just contact us.

9.5 We may record calls you make to us to verify information and for staff training purposes. You may ask to hear these calls at any time and to have them deleted.

9.6 By providing us with your email address and/or cell phone number you consent to receiving commercial electronic messages from us for any of the purposes set out in this privacy statement.

9.7 You authorise us to: (a) collect information about you from any person including trade references, credit reporting agencies and debt collection agencies for any of the purposes set out in this clause 9 and for such entities to provide us with the information we may require; (b) disclose information to any person including trade references, credit reporting agencies and debt collection agencies for any of the purposes set out in this clause 9 and for such entities to collect information from us; and (c) send you commercial electronic messages from us for any of the purposes set out in this clause 9.

10. Changing these terms

10.1 We can change these terms from time to time by giving you 35 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. If you don’t agree with such change you may exercise your right to terminate your agreement with us in accordance with clause 7.1.

11. Notices

11.1 If you wish to notify us of anything you can do so by writing to us at PO Box 32465, Devonport, North Shore City, New Zealand or by contacting Conversant via our website.

11.2 If we wish to communicate with you or notify you of anything we can do so by post, phone, facsimile or email to the last known address or number we have for you.

11.3 If your contact details change you must advise us of the new details as soon as possible.

12. Other matters

12.1 These terms are to be interpreted in accordance with the laws of New Zealand. Any dispute regarding the provision of our services under these terms is to be determined by New Zealand courts.

12.2 You must not assign your rights under this agreement. We can transfer our rights and obligations under this agreement to anyone else. We will notify you if we do so.

12.3 A delay in exercising any right is not a waiver of that right. A failure to exercise a right on any occasion does not prevent any subsequent exercise of that right.

13. Telephone Services - Service levels

13.1 We guarantee (“the Uptime Guarantee”) 99.9% average scheduled availability of C-Vox, C-Voice, C-Lite and C-Centre (the “telephone services”). This uptime guarantee is calculated on a monthly basis, and applies 24 hours per day, 365 days a year, except as noted below and provided you:

• are in good standing with us (i.e. are not delinquent in payments, and have not otherwise breached any of your obligations to us); and
• request the Service Credit (as defined below) from us for our noncompliance with the Uptime Guarantee in writing within 30 days of the end of the month in which such noncompliance occurred.

13.2 “Availability” is defined as the ability to make and receive audio calls using the telephone service. Where the system is functioning in some areas and not functioning in others the time of diminished functioning is not considered downtime and is excluded from the calculations.

13.3 Downtime caused by any of the events noted below will be excluded from the service availability calculations (“Excused Outages”):

• environment issues affecting your connectivity or interfering with the services, including without limitation, your connection to the Internet (i.e., problems with your Internet Service Provider, modem, cable, DSL or dial-up connection or other Internet connectivity issues), your firewall software, hardware or security settings, your configuration of anti-virus software or anti-spyware or malware software, or your operator error;
• third party attacks, including without limitation, hacks, intrusions, distributed denial-of-service attacks or any other third party actions intended to cause harm to or disrupt the services, our website or our partners’ servers;
• verified bugs of any third party software used in conjunction with the services;
• force majeure events, including, without limitation fire, flood, earthquake, elements of nature or acts of God; third party labour disruptions, acts of war, terrorism, riots, civil disorders, rebellions or revolutions; quarantines, embargoes and other similar governmental action; or any other similar cause beyond our reasonable control; • issues related to third party domain name system (DNS) errors or failures;
• scheduled maintenance of the services, conducted on a regular basis, of which we will give you a minimum of 24hrs advanced notice by email or notification posted to our website; and
• emergency maintenance of the services, not to exceed 4 hours in any month, for which you may not receive advanced notice.

13.4 In the event that we fail to meet the Uptime Guarantee regarding one or more of our telephone services (the “Affected Service(s)”), as verified by us based on our monitoring logs (a "Service Outage"), you will be entitled to a credit useable against future services of the same type as the Affected Services ( "Service Credits").

13.5 For each full 1% of downtime of verified Service Outage in any calendar month (based on a 30-day month calculation), excluding downtime caused by an Excused Outage (an "Outage Unit"), you will receive a Service Credit equal to 5% of the monthly subscription fees paid by you for the users impacted by the Affected Service. Should a Service Outage span more than one month, the calculation of Service Credits starts again at the beginning of each month.

13.6 Service Credits will be issued in the form of a credit towards your next invoice, unless the affected month is your last month of subscription to the Affected Services, in which case the dollar value of the Service Credits, as calculated herein, will be issued to you by us within 60 calendar days from the end of your last month of subscription to the Services.

13.7 Service Credits will apply only to your users directly affected by a Service Outage, and Service Credits may not exceed 100% of the total subscription fees of the Affected Services, excluding applicable taxes. Service Credits will not be issued for any fraction of an Outage Unit and will not accrue or carry over from month to month. Notwithstanding anything set out in this agreement, to the maximum extent permitted by law, the Service Credits described in this clause 13 shall be your sole and exclusive remedy in connection with any outages, unavailability or breach by us of this agreement, in relation to the telephone services.

14. Support Services

14.1 You may make a request for support in relation to any service the manner set out in this agreement. We will respond to a support request in relation to a telephone service within the timeframes and in the manner set out in these terms.

14.2 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.

14.3 In the course of solving a problem we may issue you with a workaround which will enable you to continue working (albeit with possibly reduced functionality).

14.4 You may request support during the support hours by either:

• Calling the Conversant help desk. The appropriate telephone number is listed on our website;
• Emailing the help desk. The appropriate email address is listed on our website; or
• Logging a support request using the online help request tool available on our website.

14.5 Support hours are defined as:

• between 9 A.M. to 5 P.M. New Zealand time on all business days ("business hours");
• if you have purchased premium support, 7 A.M to 9 P.M. New Zealand time on all business days and 10 A.M. to 4 P.M. New Zealand time on all other days ("extended hours"); or
• if you have purchased total support, 24 hours, 7 days per week ("all hours"), where “business days” means Monday to Friday inclusive but excluding public holidays in Auckland.

14.6 We will respond to a support request in relation to telephone services within the support hours as set out in Table One. In addition, we will attempt to resolve a support request in relation to telephone services within the support hours set out in Table One.

Table One

14.7 For the purposes of this clause "respond" means to make reasonable attempts to communicate to the individual requesting support that we have commenced attempting to resolve the issue.

14.8 For the purposes of this clause:

• P1 means an issue that is causing loss of availability of a telephone service as defined in paragraph 13.2; 
• P2 means an issue that is affecting your ability to use the features of any telephone service; and 
• P3 means an issue that is affecting your ability to access or use others aspects of the services incidental to or not directly related to the telephone service.

14.9 For the purposes of this clause "resolve" means to remedy the fault reported by the user. Where, despite our reasonable efforts, we are unable to remedy 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.