Legals

General provisions

Operation of these terms and conditions

1. These website terms and conditions apply and operate in addition to your Service Agreement. If there is any conflict or inconsistency between these website terms and conditions and those set out in your Service Agreement then the terms and conditions of your Service Agreement will prevail.

2. If you do not have a Service Agreement, then these website terms and conditions will apply to your use of our website, the website Content, and all of the products and services offered or promoted by us on our website.

3. If you are under the age of 18, you must only use this website, or 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.

4. Our commitment to you
   We will provide those products and services which you order from us with reasonable care and skill and within a reasonable timeframe unless expressly stated otherwise. However we do not represent or warrant that any product or service offered or supplied by us will:
   a) operate on a continuous or fault free basis, or at any particular time or location
   b) be secure or private, or
   c) be free of viruses or other harmful features.

5. We will use all reasonable endeavours to restore any services outages as soon as reasonably possible.

6. Although we endeavour to keep our website and its Content up to date and accurate, we do not represent or warrant that all Content displayed on our website is up to date or accurate at all times.

7. We are not responsible for:
   a)  any Device or other equipment 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 Service Agreement which we may have with you
   b) 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 Service Agreement.

8. We may use subcontractors to provide products or services to you. Without limiting clauses 21 to 24 but subject to clause 25, 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.

9. Your responsibilities
   Whilst using our website, any Content, products or services, you must:
   a) comply with these terms and conditions as well as the terms of any Service Agreement at all times
   b) make sure all information which you supply to us is current, complete, accurate and is provided in a timely manner
   c) 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
   d) 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 Service Agreement which you have with us, and
   e) Use of our website, its content and our products and services

10. You may only use our website and its Content:
    a) to learn about us and our business partners, and the products and services we offer from time to time
    b) to register for, order, use or pay for the products and services which we offer from time to time, to the extent that we enable you to do any of these activities online
    c) as may be expressly directed in our website
    d) for your own internal business purposes.

11. You may only use our products and services:
    a) in accordance with these terms and conditions and any Service Agreement which you may have with us
    b) in accordance with any express terms of supply or as may be expressly directed in our website
    c) for your own internal business purposes.

12. You may use any third party website which we link to our website provided that you comply with the relevant third party’s terms of use for its website. However, we are not liable for any content on any third party website (see ‘Disclaimers’ below at clause 19).

13. In order for you to use our products or services, it may sometimes be necessary for us to download configuration or other software to your Device. This may happen automatically when you have requested that one of our products or services be supplied to you.
    You acknowledge and agree that:
    a) your right to use such software is limited to being a mere licensee (not owner) upon license terms and conditions as may be notified to you by us or one of our third party suppliers at the time the software is downloaded to your Device
    b) if these licence terms are not notified to you and are not contained anywhere in the software which is downloaded to your Device, then you will receive a personal, revocable and non-transferable licence to use that software solely for use in conjunction with the relevant product or service which is offered by us and for no other purpose. Any reverse engineering, decompilation, reproduction or redistribution of the software or any component of it is expressly prohibited
    c) your use of the software will be free of charge unless we notify you that there is a charge. We may do this either by displaying the charge on our website or in any other terms and conditions which apply to that software
    d) we do not guarantee that any such software will be compatible with, or will operate on, your Device, and
    e) we may revoke your right to use any such software at any time by sending you notice to this effect (whether verbally, electronically, or by letter), and upon receipt of such notice, you will immediately cease using or in any way dealing with the software.

14. You must not use our website, any of its Content, or any of our products or services:
    a) in breach of any legislative or regulatory provision or for any other unlawful act
    b) to damage or disrupt our website, its Content, or any of the products or services offered by us or in any way effect them except to the extent permitted in clauses 11 and 12 above
    c) to access, use or interfere with anybody else’s computer system or data whether by hacking or by other means
    d) 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
    e) for sending Spam, chain letters, pyramid schemes, hoaxes or other similar unsolicited communications of any kind
    f) to abuse, defame, threaten, stalk or harass others
    g) for sending objectionable language, content, or any expressions of hatred, racism or anti-religious remarks of any kind
    h) for running any network scanning software, spiders, spyware software, robots, open relay software, or any such similar software
    i) 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
    j) 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
    k) 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
    l) using a false identity for the purpose of misleading others as to the identity of the sender or origin of any message
    m) 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
    n) for the purpose of reselling (in any way) the Content or any of our products or services to third parties.

15. You must not connect or attempt to connect to our service using a Device which has not been approved by us in writing in advance. If you are unsure as to whether any particular Device has been approved by us, please contact our customer services people for guidance.

16. Intellectual property
    We either own or otherwise have the right to use the intellectual property rights with respect to the Content, any software supplied by us, and any personal identifiers (including addresses) as well as in relation to other products or services which we make available to you in connection with our products and services (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 website terms and conditions or under a Service 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.

17. 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 copying, 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.

18. 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, costs 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.

19. Disclaimers
    Without limiting clauses 21 to 25, we disclaim any liability in relation to:
    a) the content of any third party website which may be linked to our website at any time. The links to such sites which we include in our website are merely for convenience for you and we do not necessarily endorse the content of those third party sites
    b) information which is obtained from third parties and which we may post on our website at any time. We provide such information to you for convenience and we do not accept any liability for the products or services referred to in the information
    c) 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
    d) the content of any communication (whether voice, data or otherwise) which you send or receive using any of our products or services, and
    e) 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.

20. We do not represent or warrant that:
    a)  you will be able to access and use any of our products or services using any particular Device even though we may have approved it for use on our network, or
    c) data or other content which relates to you will be stored indefinitely. We may store such data for a reasonable period of time (which may vary depending on the service) and may then delete such data without notice to you and without your prior consent.

21. Liability
    Subject to clause 25, 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 our website, its Content, or through the use of any of our products or services.

22. If, notwithstanding clause 21 but subject to clause 25, 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:
    a) $5,000 for any event or series of events, and
    n) 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.

23. 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 25, our liability in respect of such term, condition or warranty (including to any person claiming through you) is limited, at our option, to either:
    a) resupplying similar products or services on substantially similar terms, or
    b) payment of the cost of having similar products or services supplied on substantially similar terms.

24. Subject to clause 25 and any express provision contained in these terms and conditions or a Service 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.

25. If you are using our website or 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 website 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 22 to 25.

26. Charges and billing
    You agree to pay our prices, charges and costs in accordance with the terms contained in your Service Agreement (if you have one) 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. You must pay us interest at our bank overdraft rate plus a margin of 3% on any overdue amounts from the due date until the date of payment. You must also pay any expenses, costs or disbursements incurred by us in recovering any overdue amounts, including debt collection agency fees and/or solicitors costs.

27. Security
    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.

28. 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.

29. Your privacy
    We will comply with our privacy policy (see below) and you accept this policy as governing our use of the personal information we receive about you as an individual.

30. 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.

31. 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.

32. Except as may otherwise be provided in a Service Agreement we may suspend or terminate your use of any of our products or services at any time for any reason (which we are not obliged to disclose) without notice, although we will use all reasonable endeavours to provide you with advance notice. Our decision to suspend or terminate may be based on a breach by you of these terms and conditions, a technical reason, or for any reason whatsoever. If we suspend or terminate due to breach by you, we may but are not obliged to notify you of that breach or provide you with an opportunity to remedy that breach prior to such suspension or termination occurring.

33. If we suspend your use of any service, then you will still be required to pay us any connection related charges or minimum payments applicable to that service.

34. Subject to the provisions of any Service Agreement you may discontinue your use of any of our services by either refraining from using the service or if that service allows you to take steps to terminate your use of that service, then you may do so in accordance with those steps, subject to any other terms of use for that service.

35. You acknowledge and accept that we may from time to time, at our sole discretion, run manual or automatic systems on our Service and related systems and equipment, to determine whether compliance with these terms and conditions is occurring.

36. 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 our website, its Content, and any products or services we offer or supply.

37. General
    You may not assign any of your rights or obligations under these website 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.

38. 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.

39. 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.

40. These terms and conditions (together with any Service Agreement) constitute the entire terms and conditions which are applicable between you and us. Any other documents, statements or other representations are expressly excluded.

41. Defined terms
    Unless the context otherwise requires, in these terms and conditions, the following terms have the following meanings:
    a) ‘Content’ means all text, graphical and other visual content, as well as all audio content and other information contained in our website
    b) ‘Service Agreement’ means an agreement which we have with you for the provision of Merge services
    c) ‘Device’ means any voice and/or data communication hardware device including a mobile device (such as a handset) and a desktop device (such as a PC)
    d) ‘Service’ means the services provided to using our service platform over your network connection
    e) ‘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
    f) ‘Spam’ means the sending of bulk, unsolicited messages to a large number of remote users normally for advertising purposes
    g) ‘Trademarks’ means all of our trademarks, whether registered or unregistered
    h) ‘you’ means you our customer, whether an individual, a company, or any other form of entity
    i) ‘we’, ‘us’, ‘our’ and ‘Merge’ means Merge Communications Limited, and in relation to any of our rights (but not our obligations), includes affiliates, officers and employees.