Terms of Service
Updated: September 2010
- These Terms of Service
- Separate Terms
- Your responsibilities and liabilities
- Intellectual Property
- Communication services
- Mobile services
- Adult and restricted content
- Department of Internal Affairs Digital Child Exploitation Filtering System
- Changing, withholding, suspending, restricting, replacing or terminating Services
- Our disclaimers
- No retention of data
- Third Party Services
- Changes to these Service Terms
- Price and payment
These Xtra Terms of Service ("Terms of Service") 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 yahoo!xtra,co.nz ("Website/s"), and anything else we do (together, our "Services"). Your use of our Services after each update of these Terms of Service shows your unconditional agreement to them as set out below. For the purposes of these Terms of Service "you" or "your" includes the Member Account holder (also known as the Account holder) and each Sub Account holder or either of such account holders as the context requires).
Your use of our Services is also subject to Xtra's Customer Terms and may also be subject to separate terms, service or product descriptions and pricing plans, instructions, policies or guidelines collectively, "Separate Terms"). To go directly to the Customer Terms and to certain Separate Terms, click on the link below:
These Terms of Service will prevail to the extent that they are inconsistent with the Customer Terms.
However, Separate Terms, or any of our other terms and guidelines contained within any particular Website or applying to any Service, will prevail if they are inconsistent with these Terms of Service.
- only use our Services for lawful purposes, and not use them for any activities, or to post, upload or transmit to or by means of the Services, any information or materials:
- which breach any laws or regulations, infringe a third party's rights, or are contrary to any relevant standards or codes
- which interfere with other users or defames, abuses, harasses, threatens, menaces, offends or restricts any person or which inhibits any other user from using or enjoying the Internet or our Websites or Services
- to gain unauthorised access to, or to interfere with, anyone else's computer, mobile phone or other device, system, server, or other communications equipment or network ("Systems")
- in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise)
- to make any fraudulent or speculative enquiries, bookings, reservations, requests or purchases
- tamper with, hinder the operation of or make unauthorised modifications to our or any other party's services or Systems
- knowingly or negligently transmit any virus or other disabling feature or any other similar software or programs that may damage the operation of another's Systems, data or other property
- attempt any of the above acts or permit another person to do or attempt any of the above acts
- edit, delete or cease any future publication of any material or communication which we consider to be unauthorised, misleading, objectionable, restricted, defamatory, illegal, inappropriate or contrary to these Terms of Service or detrimental to our reputation or to our brand and if you do not do so to our satisfaction, you agree that we may edit, delete, block or disconnect that material or communication ourselves
- allow us to test the configuration of your equipment from time to time and comply with any directions given to you to reconfigure your equipment if we reasonably believe it is necessary to do so
- notify us immediately of any change of your address or landline or mobile phone number or other device or any other of your contact details
- not use, download or otherwise copy or provide (whether or not for a fee) to a person or entity any directory of users of any of the Services or other user or usage information or any portion thereof
- not use the Services, or content or anything else provided by us or available on our Websites, in any way that implies an endorsement, sponsorship or association with any product, service, person or entity.
- You as a Member Account holder may create up to ten "Sub Accounts" (each of which will have a separate password and personal identifier/member ID) under your Member Account for others in your household or your employees if you are a business customer. Each Sub Account will also be required to accept these Terms of Service, the Customer Terms and our Separate Terms. Together these terms make up the "Combined Terms" and complete the registration process for Sub Accounts to become a Sub Account holder of the Service. Member Account holders are responsible for all activity on your Member Account and on any of the Sub Accounts. Any breach of the Combined Terms in a Member Account or in a Sub Account can result in suspension or termination of the Member Account and all or any associated Sub Accounts
Your use of intellectual property
You agree that all content, software, personal identifiers (including addresses) and anything else we make available to you in connection with our Services (together "Works") are protected by copyright, trade marks and other intellectual property rights and laws. You warrant that you will not:
- remove any trademarks, copyright notices, or proprietary labels that may be attached to, or part of, any Works
- modify, copy, translate, create derivative works based on any part of the Works or
- license, assign, otherwise transfer, make available or grant any interest in any part of the Works to any other person
- except where expressly permitted by us , "meta-search" the Websites or Services, or send, or cause to be sent, any automated queries of any sort through or to the Websites, Services or customer.
Our use of your intellectual property
Xtra does not claim ownership of any content or material you provide or make available through the Services ("Customer Material"). However, by placing any Customer Material on our Websites or Systems (including posting messages, uploading files, importing data or engaging in any other form of communication), you grant to Xtra a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, worldwide licence to do the following in respect of the Customer Materials:
- use, copy, sublicence, redistribute, adapt, transmit, publish, delete, edit and/or broadcast, publicly perform or display, and
- sublicence to any third parties the unrestricted right to exercise any of the rights granted,
in each case for the limited purposes for which you provided or made the Customer Materials available or to enable us and our suppliers to provide the Services.
The Services may include email services, information services, bulletin board services, chat areas, news groups, forums, groups, personal web pages, calendars, photo albums, file cabinets and/or other message or communication facilities designed to enable you to communicate with others (collectively "Communication Services"). You agree to use and access the Communication Services in accordance with all Separate Terms and only to upload, post, email, or otherwise transmit or access messages and material that are permitted in accordance with these Service Terms and, when applicable, the Separate Terms related to the particular Communication Service.
You (and not Xtra) assume the entire cost of any necessary verification, maintenance, repair correction and/or removal of any relevant Communication Service messages and material.
We are not under any obligation to monitor the Communication Services. However, we reserve the right at all times to review messages and materials transmitted and accessed through a Communication Service and to disclose any information as we deem necessary to satisfy any applicable law, regulation, legal process, governmental request or code, or to edit, refuse to post or to remove any message or materials, in whole or in part, in our sole discretion. We reserve the right to terminate your use of and access to any or all of the Communication Services at any time, without notice, for any reason whatsoever.
The Services may include services which are provided or accessed by or through mobile devices ("Mobile Services") and in conjunction with Telecom mobile or another mobile services provider ("Mobile Provider").
Where we make Mobile Services available, your use of the Mobile Services may be conditional upon you being the holder of an account with the Mobile Provider ("Mobile Account"). You agree that:
- we are entitled to rely on your provision of a Mobile Account, mobile user name, mobile number, login, password or other identifier as conclusive evidence of your identity as the holder of the Mobile Account and authority in relation to that account without further investigation;
- where Mobile Services are charged by, or otherwise shown on, bills for your Mobile Account, you agree to pay those charges in accordance with, and otherwise comply with, the terms and conditions applying to your Mobile Account.
The Services may include content unsuitable for persons under a specified age or may be subject to some other restriction on access, as shown on our Websites (or websites linked from our Websites) in connection with those Services. You warrant that no person who is stated to be restricted from accessing such content will be permitted to do so using your billing account number, Member Account or Sub Accounts or any User Name, login, password, or other-identifier used by or allocated to you in connection with your account (together your "personal identifier") You will be responsible and liable (and indemnify us from claims and costs incurred) for such person's use of restricted content and any contravention by them of these Terms of Service. You also agree that any access to such content using your personal identifier may be taken by us and any legal authority as conclusive evidence that the person accessing such content is not restricted from accessing it.
We will intercept communications for the purposes of the Department of Internal Affairs' Digital Child Exploitation Filtering System and in continuing to use the Services you acknowledge and consent to this.
We may, at our sole discretion, change, withhold, suspend, restrict, replace or terminate any of our Services in any circumstances if we think it is necessary or desirable. Examples of when this may occur include where Systems are being maintained or otherwise worked on, unavailable or must be protected, to manage network traffic or access to network services (for example, to manage peer to peer traffic types), to improve functionality and attributes of the Services, or for any other reason we think makes it necessary or desirable to do so.
However, where changes to any Services 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.
In most cases, normal charges continue to apply during the suspension or restriction of any Service.
Where we or another service provider 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).
You acknowledge that we reserve the right to suspend, sign out, disconnect, terminate, or delete your accounts (including Sub Accounts) or any communication session for any particular Service that is "inactive" for a period of time. "Inactive" means that you have not used a particular Service or your account for a period of time, as determined by us, in our sole discretion.
Availability of Services
The configuration of the Systems you use to receive our Services may affect not only your use of our Services, but our provision of it. For example, certain SMTP service configurations leave you vulnerable to relaying spam; spam may overload our systems.
Our Services will only be delivered to your relevant Systems when you have the required connection to receive the Service and will be subject to any service availability limitations and any functionality limitations of your Systems or Third Party Services (for example, relating to your mobile phone or other mobile handset).
Xtra does not and cannot in any way supervise, edit or control the way in which you or other end users use the content, information or other material accessed through the Services.
You acknowledge and agree that Xtra will not be held responsible in any way for the content, information or other material accessed or provided by means of our Services. You are responsible for all content, information or other material that you upload, post, email, or otherwise transmit, access or make available through the use of our Services.
Xtra has not reviewed all or any of the sites linked to the Services and is not responsible for the content of any of those sites.
Third party equipment, infrastructure and services
The Services are delivered to you using other providers' infrastructure and Systems (which we are not responsible for). Where that is the case, the provider's relevant terms and conditions apply to the supply of their infrastructure and Systems.
Many of the products and services offered for sale or advertised, and much of the information provided in connection with our Websites and other Services, are the products, services and information of third parties. Third party products, services and information are not provided or endorsed by us and your legal relationship is with the third party supplier.
We have not checked the accuracy or completeness of the information or the suitability or quality of the products and services of the third parties. You must make your own inquiries with the relevant third party supplier directly before relying on the third party information or entering into a transaction in relation to third party products and services supplied by means of our Services. You should check with the third party supplier whether there are additional charges and terms which may apply.
The amount of email and data storage available to you on systems to provide you with Services, or on your personal computer, mobile phone or other device, is limited and some email or data may not be processed due to space restraints.
You agree that limits may be established concerning use of any Services including, without limitation, the maximum number of days that material will be retained, the maximum amount and size of material that may be sent from or received by an account in connection with any Services, the maximum disk space that will be allotted on our servers on your behalf, either cumulatively or for any particular Services, such as for storing graphics or photographs, and the maximum number of times and duration you may access any servers in a given period of time. If we and/or our partners or suppliers believe that these space restraints or limits are, or will be, compromised, then we and/or our partners or suppliers may delete any electronic mail message, information or data in any other form (together "material"), sent by you or addressed to you.
If any material is deleted we are not required to notify you or the sender of that material. You agree that Xtra has no responsibility or liability for the deletion, corruption or failure to store any information, material or other content maintained or transmitted in connection with any of our Services. You acknowledge that the features, parameters (for example, the amount of storage available to you) or existence of any Services may change at any time.
You agree that your use of the Services may involve use of services provided by, or relating to, third parties, including our related companies ("related companies" has the meaning set out section 2(3) of the Companies Act 1993) and other service provider ("Third Party Services"). Where you use any Third Party Services, you agree that you will be bound by any applicable terms or policies applying to such Third Party Services ("Third Party Terms"). You agree that Xtra and our related companies and service provider, and our and their respective officers, employees, contractors, agents and suppliers ("Xtra Parties") will have the benefit of any disclaimers, limitations and exclusions contained in such Third Party Terms, as if reference in them to the provider of the Third Party Service is a reference to the Xtra Parties (with all necessary Customer Terms and any Separate Terms), except to the extent they are inconsistent with these Service Terms, our Customer Terms or any Separate Terms.
Where changes to these Terms of Service may have a material detrimental effect on you we will provide you a minimum of 10 working days and where possible one month notice of these changes. We will tell you about any material detrimental effect by publishing the change on our Website and by either emailing, writing to you or SMS text messaging you. It is your responsibility to check these terms regularly for any modifications or updates. Your continued use of the Services after any changes have been posted on our Website indicates your acceptance of those changes.
Details of pricing and specific terms and conditions which apply to Xtra's Services may be accessed from the service and product descriptions for each Service on our Websites.
For each Service we (whether directly or through a service provider) make available to you (unless stated otherwise) the following terms apply:
- We will charge you any fixed amount for each Service monthly in advance. Any additional usage or overage amounts will be charged monthly in arrears
- Local call charges may apply to access our Services. Where applicable, these will appear as a separate charge on your bill
- Where we increase our prices, including introducing charging for free services, we will give you at least 10 working days notice and where possible one month's notice of the changes
- We will communicate any price changes by publishing the change on our Website and either emailing you or writing to you or SMS text messaging you
- For the avoidance of doubt clause 5 of the Customer Terms.