Terms and Conditions between Telecom and the Subscriber for the provision of SKY Digital Service
1. Definitions
In this agreement the following words and phrases shall have the following meanings unless the context clearly indicates otherwise:
1.1 Antenna System:
All antenna, cabling and associated electronic equipment, other than the Decoder and the Smart Card, needed to receive and distribute the SKY Signal within the SUD.
1.2 Decoder:
The electronic device authorised by SKY and associated leads and equipment in the SUD which unscrambles/decodes the SKY Signal.
1.3 SKY:
Sky Network Television Limited and its successors and assigns.
1.4 SKY Equipment:
All and any equipment provided by SKY (whether directly or indirectly) and installed at the SUD including the Smart Card, the Decoder and the Antenna System.
1.5 SKY Signal:
The scrambled/encoded transmissions of television channels and programmes and other services broadcast or transmitted by SKY by whatever means for presentation to persons in New Zealand who use a Decoder, or any part of those transmissions.
1.6 Smart Card:
The card issued by SKY to the Subscriber to unscramble/decode the SKY Signal.
1.7 Subscriber:
The Subscriber means the person who agrees to take the Selected Service under this agreement.
1.8 Selected Service:
The images on the television screen together with accompanying sound produced by receiving and unscrambling/decoding the SKY Signal for the SKY subscription television services chosen by the Subscriber as agreed with Telecom and/or SKY from time to time) which is achieved by using the SKY Equipment at the SUD in conjunction with a standard operational television set, but excluding any pay-per-view programming and any additional products and services as referred to in clause 5.
1.9 Single Unit Dwelling (SUD):
The domestic single unit dwelling in which the Subscriber resides or such place as SKY has consented to the SKY Equipment being relocated to pursuant to clause 9.1(a).
1.10 Telecom:
Telecom New Zealand Ltd and its sucessors and assigns.
2. Information
The Subscriber hereby authorises Telecom and SKY to collect information about the Subscriber and/or the Subscriber's household (including information about the products and services the Subscriber and/or the Subscriber's household use) from time to time from the Subscriber and from other sources and by other means. The Subscriber authorises Telecom and SKY to use and/or disclose to third parties such information for the purposes of communicating with the Subscriber and the Subscriber's household in relation to this agreement, marketing and promoting the products and services of Telecom and SKY and/or third parties to the Subscriber and the Subscriber's household, market research, generating and providing statistical analysis and rating information, credit control and debt collection (which includes logging overdue debts and/or liquidated damages owed to Telecom or SKY with credit reference agencies). The Subscriber acknowledges and agrees that such information may be held by Telecom and SKY both before and after termination or cancellation of this agreement but only for so long as Telecom and SKY are legally entitled to use the information for the above purposes. The Subscriber can let Telecom and Sky know at any time that the Subscriber does not want to receive sales and marketing information.
3. Installation
3.1 SKY shall as soon as reasonably practicable arrange for Sky or a servant or contractor of Sky to supply, deliver and install the SKY Equipment at the SUD. The Subscriber shall pay a joining/installation fee to Telecom as determined by Telecom.
3.2 The Subscriber shall, at its own expense, secure and maintain all necessary approvals and consents (including any landlord, property owner or body corporate consents/approvals) for the installation of the SKY Equipment at or on the SUD, for any alterations to the SUD needed to install such equipment and for SKY's right of access pursuant to clause 11.2. Neither Telecom nor SKY shall have responsibility whatsoever in relation to any such approval or consent.
4. Duration
Subject to earlier termination pursuant to clause 14, this agreement will continue until cancelled by either party giving 1 month's written notice to the other provided however, that in no event will such notice where given by the Subscriber take effect prior to the expiration of the minimum term which shall be the GREATER OF one month and any longer period which is specified by Telecom to the Subscriber when the Subscriber agrees to take the Selected Service under this agreement. Such minimum term will run from the date that the Selected Service can first be received by the Subscriber.
5. Pay-per-view and additional products/services
Telecom, SKY and/or third parties may from time to time offer to the Subscriber, via the SKY Equipment, pay-per-view programming or additional products or services for which the Subscriber may be charged additional fees either by Telecom, SKY or by a third party. If the Subscriber or any member of the Subscriber's household accepts any such offer, or the offer is accepted electronically via the Subscriber's Decoder, then the Subscriber shall abide by any additional terms that are applicable and pay the additional fees to Telecom, SKY, or to the applicable third party for the programming, products or services that have been accepted, as required.
6. Fees, taxes and charges
The Subscriber shall pay:
- to Telecom the joining/installation fees payable upon first installation of the SKY Equipment at the SUD. Those fees are non-refundable;
- to Telecom or SKY (as applicable) monthly in advance, on the due date for payment set out in Telecom's tax invoice, the monthly fees for the Selected Service and for the supply of SKYWATCH (if supplied), which fees may from time to time be varied by Telecom in its discretion on 30 days written notice to the Subscriber;
- to Telecom or SKY (as applicable) on demand, GST and any other applicable taxes, levies or duties which may be payable on payments under this agreement;
- to Telecom or SKY (as applicable) on demand, a reconnection fee if the SKY Equipment is relocated to an alternate SUD pursuant to clause 9.1(a) or if the Subscriber requests Telecom to reinstate any SKY services after Telecom or SKY (as applicable) has disabled the Decoder due to non-payment or late payment of any moneys due to Telecom or SKY (as applicable) by the Subscriber;
- to Telecom or SKY (as applicable) on demand, a fee for each dishonoured cheque and direct debit;
- to Telecom, SKY or the applicable third party, if the Subscriber (or any person in the Subscriber's household) accepts any offer for any pay-per-view programming or other additional products or services as referred to in clause 5, Telecom's, SKY'S or the third party's additional fees as and when notified to the Subscriber from time to time;
- to Telecom or SKY (as applicable) on demand, any liquidated damages payable under clause 15 and a collection fee where SKY repossesses the SKY Equipment pursuant to clause 15(b)(ii); and
- to Telecom or SKY (as applicable) on demand, costs incurred for the collection of any overdue debts.
7. Failure to broadcast SKY Digital
If for any reason the SKY Signal of the Selected Service or any channel comprised therein is not broadcast for a continuous period greater than 24 hours Telecom or SKY (as applicable) undertakes upon request by the Subscriber to credit the Subscriber with that portion of the monthly Selected Service fee or the relevant part thereof covering the period during which the SKY Signal of the Selected Service or any channel comprised therein was not broadcast. The placement of screen messages does not amount to a failure to broadcast and the Subscriber shall remain liable to pay the fee for the Selected Service during the period of any screen messaging.
8. Right to suspend cancel or alter service
SKY shall be entitled at any time without prior notice or any liability to the Subscriber:
- to cancel or suspend the whole or any part of the Selected Service and/or to substitute in place of the Selected Service or any part thereof alternative programming, products or services;
- to alter the packages of subscription television services offered by SKY (in which case the Subscriber must select one of the new packages); and/or
- to alter the mechanism by which SKY transmits or broadcasts the SKY Signal and/or the format of that signal.
9. Bailment of SKY equipment
9.1 Ownership of the SKY Equipment will at all times remain with SKY and the Subscriber must not:
- remove the SKY Equipment from the SUD without the prior written consent of SKY;
- sell, lease, dispose of, lend or otherwise part with possession of, or modify in any way, the SKY Equipment;
- use the SKY Equipment for any purpose other than viewing the Selected Service, or using any other programming, products or services selected in accordance with clause 5, in the SUD in accordance with the terms of this agreement;
- deface, obliterate or remove any label or mark which identifies the ownership of the SKY Equipment; or
- do any other act which may adversely affect or prejudice the ownership of the SKY Equipment by SKY.
9.2 The Subscriber must immediately return the SKY Equipment to SKY or an authorised SKY agent on termination or cancellation of this agreement.
9.3 The Subscriber shall be liable for any loss (including by fire) or theft of, or damage however caused to, the SKY Equipment during the currency of this agreement. It is the Subscriber's responsibility to effect insurance cover, if the Subscriber elects to do so, against potential liability under this clause.
9.4 Clauses 6, 9, 10, 11, 12, 13 and 15 of this agreement shall apply in relation to and in connection with the use of any additional Smart Cards, Decoders or other SKY Equipment provided to the Subscriber by SKY so as to enable the Selected Service, or any other SKY services, to be viewed on more than one television set within the SUD.
10. Disabling decoder
SKY is entitled and Telecom may instruct SKY to disable the Decoder without notice to the Subscriber in the event of non-payment or late payment of any moneys due to Telecom or SKY by the Subscriber.
11. SKY equipment/subscriber responsbilities
11.1 The Subscriber must not use any video recording equipment, video cassette or other equipment to duplicate, reproduce, sell or otherwise use or transmit the whole or any part of the Selected Service, any other programming, products or services as referred to in clause 5, or the SKY Signal under any circumstances for any purpose whatsoever other than for the Subscriber's personal use at the SUD. SKY reserves the right, and Telecom may instruct SKY, to disconnect forthwith any Subscriber who either of them reasonably believe is using the service in an unauthorised manner. The Subscriber acknowledges that the Decoder has been programmed with a unique decoding sequence and will only unscramble/decode the SKY Signal if it receives an encoded authorisation signal. If any attempt is made by or with the agreement of the Subscriber to break this sequence, or to modify the Decoder so that it unscrambles/decodes the SKY Signal without having to receive an encoded authorisation signal, SKY and/or Telecom will take immediate action against the Subscriber or the person concerned.
11.2 SKY has the right at any time during the currency of this agreement to enter the SUD, or any other location owned or leased by the Subscriber, in order to maintain, replace or repossess the SKY Equipment or where Telecom or SKY has reasonable grounds to believe that the Subscriber is not complying with the Subscriber's obligations under this agreement.
11.3 SKY may at any time in its absolute discretion require that the Subscriber exchange any SKY Equipment (including any Smart Card) for any new equipment (including a new Smart Card) provided or specified by SKY.
11.4 The Subscriber shall ensure that any PIN numbers allocated to the Subscriber are retained in confidence and only disclosed to authorised members of the Subscriber's household. The Subscriber shall be responsible for any charges incurred using the SKY Equipment and/or the Subscriber's PIN. The Subscriber shall be fully responsible for unblocking any restricted programming that is effected by the Subscriber or any person in the Subscriber's household or by using the Subscriber's PIN.
12. Defective decoder
Subject to clause 9.3, where SKY provides the Decoder to the Subscriber pursuant to this agreement SKY will be responsible for maintaining the Decoder in good working order and condition. The Subscriber must advise SKY as soon as the Decoder is damaged or is no longer in full working order. SKY will respond to such advice as soon as reasonably practicable.
13. Liability etc
Save as set out in clause 7, the liability of SKY and Telecom to the Subscriber in connection with or arising from the supply of the Selected Service, or any other programming, product or service, pursuant to this agreement shall be strictly limited to and shall not exceed that determined by reference to the provisions of the Consumer Guarantees Act 1993.
14. Termination
Telecom may terminate this agreement without written notice to the Subscriber in the event of any failure on the part of the Subscriber to pay any moneys payable to Telecom in terms of this agreement on the due date, or in the event of any other breach of this agreement by the Subscriber, but such termination will be without prejudice to both Telecom's and SKY's other rights and remedies whether such rights and remedies arise under this agreement or at law.
15. Events after termination or cancellation
Upon termination or cancellation of this agreement:
- SKY will be entitled, and Telecom may instruct Sky, to forthwith disable the Decoder from unscrambling/decoding the SKY Signal;
- where the Subscriber fails to return the SKY Equipment in accordance with clause 9.2 SKY may, at its option: (i) require the Subscriber to pay to SKY on demand, as liquidated damages for the breach of clause 9.2, an amount equal to the cost of replacing the Decoder, as determined by SKY; or (ii) at any time enter the SUD and repossess the SKY Equipment;
- if that termination/cancellation is before the expiration of the minimum term referred to in clause 4, then the Subscriber must pay to Telecom on demand, as liquidated damages for early termination any difference between Telecom's standard joining/installation fees (excluding any promotional or other discounts) and the amount of the joining/installation fees actually paid by the Subscriber or such other amount as is specified by Telecom to the Subscriber when the Subscriber agrees to take the Selected Service under this agreement;
- the Subscriber must immediately pay to Telecom and /or SKY (as applicable) all moneys due to Telecom and/or SKY (as applicable) including any liquidated damages payable under this clause 15; and
- clauses 2, 6, 9, 10, 11, 13 and 15 of this agreement shall survive for the benefit of Telecom and SKY (as applicable) notwithstanding any rule of law to the contrary.
16. Force majeure
If either Telecom or SKY is prevented from carrying out any obligation imposed upon it in terms of this agreement by reason of any act of God, inclement weather, act of State, riot, insurrection, civil commotion, strike, sanctions, boycott, embargo, unexpected failure of equipment, systems or facilities, or any other circumstance beyond Telecom or SKY's (as applicable) reasonable control, Telecom or SKY (as applicable) must endeavour to advise the Subscriber of the existence of the circumstances and the expected duration thereof. The performance of this agreement will, to the extent that it is made impossible by such circumstances, be suspended until such circumstances cease to prevail.
17. Notice
17.1 Any notice required to be given under this agreement must be in writing and is deemed to be properly given if left at, sent by prepaid letter, document exchange or facsimile transmission to the address of the recipient specified at the time when the Subscriber agrees to take the Selected Service under this agreement or such other address as either party may from time to time notify for such purpose.
17.2 Any notice sent by post or document exchange is deemed to have been properly received two days after the date upon which it was sent. Notices sent by courier, delivered by hand or facsimile transmission are deemed to have been received on the date of delivery or transmission if made before 5pm on a working day in the area in which the notice is received, and otherwise on the next working day.
18. General
18.1 Both Telecom and SKY may at any time assign their own rights and obligations under this agreement to any person, company or business entity. The Subscriber may not assign or otherwise transfer the Subscriber's rights hereunder.
18.2 If any clause or term of this agreement shall be invalid, unenforceable or illegal, then the remaining terms of this agreement will be deemed to be severable from the offending terms and will continue in full force and effect unless such invalidity, enforceability or illegality is fundamental to this agreement.
18.3 The failure by either party at any time or times to require performance by the other party of any term of this agreement will not affect the right to enforce the same. The waiver by either party of any breach of any one or more terms contained in this agreement will not be construed to be a waiver of any succeeding breach of such term or any other term.
18.4 Telecom and SKY shall have the right to alter this agreement at any time by notice to the Subscriber or by putting a notice in major daily newspapers and/or on SKY's website.
18.5 These terms shall apply as between the Subscriber and Telecom in respect of the supply of the Selected Service, pay-per-view programming or the additional products and services referred to in clause 5, irrespective of any other terms that may apply between SKY and the Subscriber.
18.6 It is acknowledged by Telecom and the Subscriber that for the purposes of the Contracts (Privity) Act 1982, this agreement contains provisions which confer a benefit on, and are intended to be enforceable by, SKY.
