Xtra Customer Terms

Index

1. These Customer Terms
2. Separate Terms
3. Our commitments to you
4. Your responsibilities
5. Paying for our Services
6. Our right to change, withhold, suspend, restrict, replace or terminate any Service
7. Ending Services or our agreement
8. Liability disclaimers
9. Our rights to compensation from you
10. Intellectual property rights
11. Contacting each other
12. Changes to these Customer Terms
13. Dispute resolution
14. Information about you
15. General

1. These Customer Terms

These Xtra Customer Terms ("Customer Terms") apply to all of the goods, products or services of any kind Xtra Limited (referred to as "Xtra", we", "us" or "our") provides, including the xtra.co.nz and the yahoo!xtra.co.nz ("Website/s"), and anything else we do (together, our "Services"). We may update these Customer Terms from time to time. Your use of our Services after the date on which updates are stated to be effective shows your unconditional agreement to them as set out below.

The Services are provided solely for your own legitimate uses as described under these Customer Terms and the Separate Terms.

2. Separate Terms
Your use of our Services may also be subject to separate terms, service or product descriptions and pricing plans, instructions, policies or guidelines (collectively, "Separate Terms"), which apply in addition to these Customer Terms. To go directly to certain Separate Terms, click on the link below:

Service Terms

Separate Terms that specifically apply to a Service will prevail in relation to that Service to the extent that they are inconsistent with these Customer Terms.

3. Our commitments to you
Generally

Whenever we provide Services for you or in connection with your Xtra account(s) or any additional user account which is established under your Xtra account ("Account"), such as Sub Accounts, we will:

provide them with reasonable care and skill
begin providing the Services within a reasonable time
make all reasonable efforts to ensure our Services do everything we say they will, but we do not represent or guarantee they will be:

interruption or fault free, or that any faults or errors will be corrected
available at any particular time or location
available, or available without change, for any minimum period of time
secure or private
free of viruses or other harmful features

try to restore any Service outage as soon as we reasonably can.

What we are not responsible for

We are not responsible for anything:

in your or another party's equipment, products or services or in any part of the Internet or any mobile, fixed line, wired or wireless network used to provide the Services to you which is not provided by us
because you use the Service incorrectly, or in contravention of any term of these Customers Terms or any Separate Terms
because of any other event outside the scope of our responsibilities as set out in these Customer Terms or any Separate Terms or beyond our reasonable control.

You agree to contact the supplier, licensor or manufacturer, rather than us, about any problem you may have with them or their equipment, products or services.

4. Your responsibilities
Generally

You must:

use the Services for your own personal, non commercial use or, if you are a business customer, for your own internal business purposes
make sure all information you give us or any service provider approved by us for provision of directory listing and directory assistance services is current, correct, complete and provided in a timely fashion
comply with all Separate Terms applying to your use of our Services
comply with all applicable laws, regulations, standards and codes including, but not limited to, the Privacy Act 1993, Fair Trading Act 1986, Copyright Act 1994, Defamation Act 1992 and the Crimes Act 1961
make sure everyone who uses the Services we provide to you or under your Account or Sub Account, or does anything in relation to them, is also aware of, and meets, these responsibilities
be responsible and liable for any use by any other person (authorised or unauthorised) of the Services we provide to you or under your Account or Sub Account, including any charges associated with that use and any consequences if such person misuses the Services, breaches these Customer Terms or any Separate Terms.

Responsibilities relating to our network and equipment supplied by us

You also agree to meet these responsibilities relating to our network and to equipment we own which is supplied to you (including rental equipment) ("Equipment"):

never interfere with Equipment or with any part of our network, even if it is on your property; only people we authorise may work on the Equipment or on our network
let us, including our agents or subcontractors, come on to your property to work on our network, Equipment or anything connected to them; we will always try to contact you before we do this and the people we send will carry proof of identity. If you do not grant access to your property this may impact the Services you or others receive from us including our ability to provide you with the relevant service.
make sure nothing is connected to our network unless it has a Telepermit or Telecom label on it; this helps make sure the equipment does not damage our network but does not mean it will always remain compatible with our network
pay for repairing or replacing any part of our network or Equipment which is lost, stolen or damaged by you or anyone you are responsible for
make sure all telephone sockets and wiring which connect equipment you have to our network meet and are installed to our specifications
make sure any additional wiring or equipment in your home, such as alarm systems, does not interfere with Equipment or with any part of our network
return any Equipment when you give up or we stop providing the relevant service, unless we agree otherwise. If you don't return Equipment or return it damaged, we may at our discretion, charge you for the cost of replacing or repairing Equipment.

Identification codes and your Account, password and security

We may allocate a personal identifier to you to use depending on the kinds of Services you want. We may change any personal identifier, for example, by allocating you a new login or password. We will try to notify you of such a change beforehand.

You are entirely responsible for maintaining the confidentiality of your billing account number and any user name, login, password and other identifier used by or allocated to you in connection with your Account (together, your "personal identifier"). You are also entirely responsible for any and all activities that occur under your Account including Sub Accounts, Services or through the use of your personal identifier/s.

We are entitled to rely on your personal identifier as conclusive evidence of your identity and authority without further investigation.

You agree to change your password at regular intervals, and at any time upon request by us. You also agree to notify us immediately of any actual or suspected unauthorised use of your Account, or Sub Accounts or personal identifier or other breach of security. However, notice provided by you under this clause does not release you from your responsibilities under these Customer Terms and the Separate Terms.

We will not be liable for any loss that you may incur as a result of someone else using your Account or Sub Accounts or any personal identifier. However, you could be held liable for losses incurred by Xtra or our partners and suppliers or another party due to someone else using your Account or Sub Accounts or any personal identifier.

We retain ownership of all personal identifiers used by or allocated to you, and all rights in them.

5. Paying for our Services
You agree to pay for the Services we provide for you or under your Account, including Sub Accounts no matter who uses them.

For example, you are responsible for the charges for anyone else's use of the Services we provide for you whether under your Xtra account, under any additional user-account established under your Xtra account, including your Member Account, under any additional user-account established under your Member Account, such as Sub Accounts or otherwise.

You can get details of our current charges either from our Websites or, if not detailed there, by calling us on 0800 CALL XTRA (0800 22 55 98). It is your responsibility to check all applicable charges regularly for changes.

When we increase any charges for any of our services, including introducing charging for free services, we will provide you a minimum of 10 working days and wherever possible at least one month notice of these changes. We will tell you about any changes to our charges by publishing the change on our website and by emailing or writing to you or SMS text messaging you.

Charges for our Services, and any other amounts you may owe to us, form part of the bill for your Telecom account and as such you agree to be subject to any terms and conditions applicable to those accounts, including in relation to late payment or credit conditions. You agree that we may assign any amounts you owe us to another of our related companies ("related company" has the meaning set out in section 2(3) of the Companies Act 1993), or to anyone else, without notice.

You must pay each bill by the due date for payment set out on it. The amount payable is based on our records of your use of the Services, which will be conclusive as to your use of the Services. However, if you think there is a mistake in your bill and notify us before the due date, we will investigate the matter. While you wait to hear back from us, you do not need to pay the queried part of the bill by the due date for payment. You must not set-off or deduct any amount in any other circumstances.

If we agree that there is a mistake, we will adjust your next bill.

If we find there is no mistake, and the due date for payment has already passed, you must pay the amount outstanding straight away.

If you do not pay a bill by the due date for payment set out on it:

you may be charged a late payment charge and/or interest on all unpaid amounts from the due date until you pay it at the interest rate set out in the Telecom List of Charges
you may be required to pay any costs that are incurred by anyone (including agents) in recovering the money you owe, or in exercising any other rights, including commissions, credit collection and legal costs on a solicitor and client basis
we may withhold, suspend, restrict or terminate any Service we provide for you.

If you are a Telecom Mobile prepaid account holder, charges for Services accessed through your mobile phone or device will be automatically debited from your prepaid account. If you do not have sufficient credit on your prepaid account to pay for these Services they will be temporarily suspended.

6. Our right to change, withhold, suspend, restrict, replace or terminate any Service
We may change, withhold, suspend, restrict, replace or terminate any Service provided to you, or the entire agreement you have with us, or take such other steps as we believe are reasonably necessary or appropriate, if you do not meet any of your responsibilities or other obligations under these Customer.

Terms or any Separate Terms or which you have to any of our related companies. Our Services to you may also be restricted if you are a new customer or have asked us to provide additional Services, until a satisfactory payment history is established.

Where we suspend or terminate a Service for the reasons set out above, we may require you to pay a reconnection charge before you can use it again. Cancellation of our agreement will also automatically cancel any Services you have subscribed to. Where we have changed or replaced an existing service, your use of the changed or replaced Service will show your acceptance of it (and any terms and conditions relating to it), in place of the changed or replaced service (and terms and conditions), unless you promptly unsubscribe to the Service or notify us that you no longer wish to receive the Service.

In most cases, normal charges continue to apply during the suspension or restriction of any Service.

7. Ending Services or our agreement
Either of us may end any Service or end our entire agreement by notifying the other party. Ending this agreement does not affect any rights and responsibilities which are intended to continue or come into force afterwards. These include the rights and responsibilities under clauses 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14 of these Customer Terms.

If either of us ends any Service or our entire agreement during a billing period, any applicable charges for that period remain payable. Where you have agreed to take a Service for a minimum period, unless alternative arrangements are in place, charges for the Service will continue until the end of that minimum period.

On ending any Service or ending our entire agreement, we will cease providing the relevant Service or Services (as the case may be) and we may retain some information, data or other material that we hold in relation to your use of the Service or Services (as the case may be) including personal information, provided that this complies with the Privacy Act 1993 and the Telecommunications Information Privacy Code. .We may reallocate any personal identifier including, but not limited to, any email alias or domain name, to another customer.

8. Liability disclaimers
The Consumer Guarantees Act 1993

As a residential customer you have rights under the Consumer Guarantees Act 1993 and this clause does not alter those rights. However, if you use our Services for business purposes (or have told or represent to us you will do so) then you agree that that Act does not apply to the Services we provide you.

No representations

Except to the extent specifically stated in these Customer Terms or any Separate Terms or required by law, Xtra and any of our related companies and our and their respective officers, employees, contractors, agents and suppliers make no representations about the suitability, reliability, availability, timeliness, lack of viruses or other harmful features, or accuracy of information, the Services or other materials provided to you, which are provided "as is" without warranty of any kind, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement of the rights of any third party.

Disclaimer and exclusion

To the fullest extent permitted by law, you agree that Xtra will not be responsible for unauthorised access to or alteration of your communications or data, any material or data sent or received or not sent or received, any transactions entered into through use of our Services or our Websites, any threatening, defamatory, obscene, offensive or illegal content or conduct of any other party or any infringement of another's rights, including intellectual property rights. You also agree that Xtra is not responsible for any content sent using, or included in, our Service or Websites by any third party.

To the fullest extent permitted by law, in no circumstances (including those circumstances set out above) will we be liable to you or any third parties for any loss of data, revenue, profits or lost business or any indirect, incidental, consequential, special, punitive or exemplary damages or losses which you may incur as a result of anything we have done or not done, or otherwise in connection with Xtra, the Services, the Internet or communications network generally, or your use of any of them, regardless of the type of claim or the nature of the cause of action, even if we have been advised of the possibility of damage or loss.

Limited compensation

To the extent you incur actual and reasonable out-of-pocket expenses (of a nature not expressly excluded in the above provisions) as a direct result of us failing to meet our obligations to you, we will refund those expenses to you up to a limit of the lesser of:

an amount equal to our average monthly charge for the affected Service or for the separately identifiable component of a Service (if only a component rather than the whole Service is affected) over the previous six month period from the date on which our failure first occurred; and
the maximum amount set out below in this clause 8, and

To be entitled to the remedies set out in this clause 8, you must give us details of our failure and provide satisfactory proof of the expenses you have incurred as a result of our failure within three months of the date on which our failure first occurred.

No other remedy

You agree that this clause 8 sets out your sole and exclusive rights and remedies against Xtra, any of our related companies, our and their respective officers, employees, contractors, agents and suppliers in relation to any claims brought by you or any third party, whatever you are claiming for and however liability arises or might arise (whether out of contract, tort (including negligence), equity, breach of statutory duty or otherwise) and that none of us or any of them will be liable for any additional amounts or other forms of compensation, damages, loss, or expenses whatsoever.

Limitation

If we cannot rely upon the limitations, disclaimers and exclusions set out above, then the maximum combined amount we and any of our related companies, our and their respective officers, employees, contractors, agents and suppliers will have to pay to you and anyone else who uses Services we provide for you whether under your Account or under your Sub Accounts, or otherwise (together) whatever you are claiming for and however liability arises or might arise (whether out of contract, tort (including negligence), equity, breach of statutory duty or otherwise) is:

$5,000 for any event or for any series of related events;
a total of $10,000 in any twelve month period.

Force Majeure

If we are prevented from carrying out any obligation in these Customer Terms and/or our Separate Terms by reason of any act of God, act of State, riot, insurrection, civil commotion, strike, sanctions, boycott, embargo or any other circumstance beyond our reasonable control, we must endeavour to advise you of the existence of the circumstances and the expected duration of and the obligations affected by the circumstances. Our performance of these Customer Terms and/or Separate Terms will, to the extent that it is made impossible by such circumstances, be suspended until such circumstances cease to exist.

9. Our rights to compensation from you
Where you do not meet your responsibilities and other obligations to us, you must pay any resulting loss of revenue and reasonable expenses we incur in collecting any money you owe us or in exercising any of our other reasonable rights. You agree to indemnify and keep indemnified us and our related companies and our and their respective officers, employees, contractors, agents and suppliers from and against all actions, claims, suits, demands, damages, liabilities, costs or expenses (including solicitor-client costs) arising out of or in any way connected to the use of the Services we provide to you or someone using your name and/or password, or under your Account or under your Sub Accounts or otherwise.

10. Intellectual property rights

We have intellectual property rights in content, software, personal identifiers (including addresses) and anything else we make available to you in connection with our Services (together "Works").

These rights include, for example, all copyright, trade mark and design rights. All title, interest and rights (including but not limited to ownership and intellectual property rights) in these Works will remain in Xtra and/or our providers. You acknowledge such title, interest and rights and will not take any action to jeopardise, limit or interfere in any manner with Xtra's or our providers' title, interests or rights with respect to the Service, including, but not limited to, the use of Xtra's trade marks or trade name.

Your use of any software provided by us is governed by the terms of the end user licence agreement, if any, which accompanies or is included with, or referenced in, the software. You may not install or use any software that is accompanied by or includes a licence agreement unless you first agree to the licence agreement terms, which agreement will be deemed to be given if you use the software. For any software not accompanied by a licence agreement, Xtra hereby grants to you a revocable personal, non transferable licence to use the software for viewing and otherwise using the particular service in accordance with these terms, and for no other purpose provided that you keep intact all copyright and other proprietary notices. Any reproduction or redistribution of the content and/or software is expressly prohibited.

11. Contacting each other
Bills and other notices will be sent to the last physical or electronic address you have given us. You consent to receive communications from us electronically at your email address. You must ensure we always have up-to-date contact details (including your physical and electronic addresses).

We, our agents and anyone to whom we have assigned the amounts you owe us, can assume any bill or notice sent by physical post has been delivered and received five days after it has been posted and if sent electronically has been received on the date it was sent. If we send a notice in accordance with this clause, we will not be responsible for you not actually receiving it or for any consequences resulting from you not receiving it.

You also agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. If you need to contact us for any reason, you may:

send us an email at xtrahelp@xtra.co.nz
telephone us on 0800 CALL XTRA (0800 22 55 98) if you are a residential customer or 0800 BUSINESS (0800 11 61 10) if you are a business customer
fax us on 0800 FAX XTRA (0800 32 99 87).

You agree that any electronic communication from you will be taken to be received by us at the time that that electronic communication comes to our attention.

12. Changes to these Customer Terms
We may change these Customer Terms by changing or removing existing terms, or by adding new ones. Changes may take the form of completely new terms.

We must always tell you about any changes to these Customer Terms at least 30 days before they come into effect. We will never change this requirement.

We will tell you about any changes by publishing the change on our Website or by emailing or writing to you or by putting a notice in major daily newspapers.

A copy of our current terms is displayed on our Website. It is your responsibility to check these Customer Terms regularly (at least monthly) for any modifications or updates. You will be deemed to have accepted the changes to these Customer Terms and to have agreed to be bound by the revised Customer Terms if you continue to use and/or access the Services after the date that the changes are stated to be effective.

Where changes to any Services, or any Separate Terms may have a material detrimental effect on you, we will provide you a minimum of 10 working days and wherever possible at least one month notice of these changes before they come into effect. We will tell you about any material detrimental effect by publishing the change on our Website and by either emailing or writing to you or by SMS text messaging you. It is your responsibility to check all applicable Separate Terms regularly for any modifications or updates.

13. Dispute Resolution
Where any dispute arises between us you and Xtra will first attempt to resolve it by reasonable consultation. Where appropriate, we will escalate any dispute to the relevant manager to investigate the dispute. In the event of a dispute you will continue to pay for our Services.

14. Information about you

Your use of the Services involves the collection by us of personal information about you, such as your email address, name, home or work address or telephone number. We may also collect demographic information, such as your age, gender, preferences, and interests. Information collected by us may be combined with information obtained by our related companies ("related companies" has the meaning set out in section 2(3) of the Companies Act 1993).

This information is used by us for the operation of the Services, to maintain quality of the Services, to provide general statistics regarding use of the Services and to assist us to deliver customised content and advertising to our customers.

Where possible, information will be obtained directly from you, but otherwise it may be provided from others (with your consent), or generated within or by the systems used to provide our Services.

You may decide not to provide information to us. However, if you do not provide it, we may not be able to provide our Services to you.

You may ask to see any information we hold about you and we will provide it as long as we have such information and can readily retrieve it. You may also ask us to correct any incorrect information we hold about you. We may charge you for the reasonable costs of retrieving and providing this information.

We may occasionally monitor telephone calls between existing and new customers and our personnel to help train our personnel to provide better customer service. We may also monitor communications between our customers and third parties to maintain and support our systems and to safeguard the security and integrity of our Services.

We may provide your personal information to our related companies, our contractors, credit reference and debt collection agencies, communications network operators and selected business partners to:

Provide our Services for you and others
Send your bills and recover money you owe
Keep you informed of and conduct, sales and marketing activities in relation to Services available to, or planned for, you from us and other people
Exercise any lawful right we or any of our related companies, our contractors, credit reference and debt collection agencies, communications network operators and selected business partners has

We may also provide, to the extent appropriate to any service provider approved by us for the provision of directory listing and directory assistance services, your name, address and the telephone numbers allocated to you for use in any directories and other publicly accessible publications and databases, You may prefer to restrict access to your name, address and the telephone numbers allocated to you. Please call us on 123 if you want to know about the ways you can do this.

Although we may publish aggregated information relating to your use of the Services, such as usage patterns, we do not disclose information in a form that could reasonably be expected to identify you, without your prior permission.

Personal information collected in relation to your use of the Services may be stored and processed in New Zealand or any other country in which we or our related companies or agents maintain facilities, and by using our Services, you consent to any such transfer of information outside of your country.

Disclosure of information

We may disclose information about you or your use of the Websites and/or Services without your prior permission if we have a good faith belief that such action is necessary to:

Conform to legal requirements (including, but not limited to, requirements in accordance with any applicable law, regulation or government request) or comply with legal process, or to help maintain the law
Protect our rights or property or those of our related companies
Enforce our Customer Terms or Service Terms
Act to protect the interests of our, or our related companies, customers or others

We do not sell, rent or lease our visitor or customer information to third parties.

15. General
We may have any of our related companies or Xtra-approved agents perform our obligations under these Customer Terms or any Separate Terms.

This agreement is entered into by Xtra on our own behalf and for the benefit of any of our related companies, and will, with any necessary modifications, apply to any of those related companies, and will be enforceable by them under the Contracts (Privity) Act 1982. Except as expressly stated, this agreement does not confer any rights on third parties and to the maximum extent allowable at law we will not, under this agreement, be liable in any way to any third parties.

We may transfer to someone else all or any part of our side of the agreement you have with us. We will tell you if we do this. You must not transfer to anyone, or have anyone else perform, your side of the agreement you have with us.

If for any reason any term of the agreement you have with us cannot be enforced or relied upon by you, us or any of the other people identified as benefiting from clause 8, all other terms of the agreement remain binding.

You acknowledge that you are not relying on any statement or representation (written or oral) made by or on behalf of Xtra and unconditionally waive any right to commence any proceeding against Xtra and any of our related companies, our and their respective officers, employees, contractors, agents and suppliers, directly or indirectly arising from any statement or representation not expressly recorded or referred to in these Customer Terms.

Unless otherwise stated in these Customer Terms, we may exercise our powers or rights at any time without prior notice to you.

The entire obligations of Xtra in relation to the subject matter of these Customer Terms are set out in (or are as referenced in) these Customer Terms and you acknowledge that your use of the Services is not in reliance on any conduct, statement, representation or warranty made by Xtra, or by any agent of Xtra or by any other person not expressly recorded herein.

We make no representation that the Services are appropriate or available for use in locations outside of New Zealand, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this site from other locations do so on their own initiative and are responsible for compliance with local laws.

All our Services are provided under New Zealand law. This agreement will be governed by and construed in accordance with the laws of New Zealand and you agree to submit to the non-exclusive jurisdiction of the courts of New Zealand.