Pay Monthly Terms & Conditions
Last updated: 05 October 2016
Welcome to 2degrees. Please read these terms and conditions carefully as they set out the basis on which we will provide Services to you on a pay monthly basis.
From the earlier of you applying for an Account or the Activation of your Account you are deemed to have accepted these Pay Monthly terms and conditions.
We may change the terms and conditions contained in this Agreement from time to time, and this may include changes to the price of the Services and/or the way you are able to use the Services. We will only make these changes as set out in clause 28, and will at all times comply with relevant laws and regulations in making these changes.
We also may terminate our Agreement with you or suspend or terminate the Services being provided to you where you are in breach of this Agreement, including our Fair Use Policy or you use the Services in an offensive, abusive or an unlawful manner. For more information on our main termination rights see Clause 25.
If you have any questions regarding your Account, the Services or these terms and conditions please call us on 0800 022 022, or 200 from your mobile, or visit www.2degreesmobile.co.nz
“2degrees” means Two Degrees Mobile Limited, the duly incorporated company having its registered office at 47 George Street, Newmarket, Auckland 1023.
“2degrees Network” means the New Zealand mobile cellular network through which Services are provided, comprising the mobile cellular network owned and operated by us, as modified, upgraded or expanded from time to time and that part of the 2degrees Network provided through the National Roaming Agreement, and includes its successors or assigns.
“Account” means your account with us which includes our records of your usage (including any usage by End Users, where applicable), payments and outstanding Charges in respect of any Services provided to you in accordance with this Agreement.
“Account Owner” means the 2degrees customer that is responsible for the Account and liable for all Charges payable under this Agreement.
“Activation” means the successful completion by you (or 2degrees, where applicable) of the set up process for an Account (and “Activate” shall be construed accordingly).
“Agent” means any third party appointed by us to perform any of our obligations under this Agreement.
“Agreement” means this agreement between us and you comprising these Pay Monthly Terms and Conditions, any specific terms and conditions which apply to a particular Service used by you and any 2degrees policies and procedures published by us from time to time on www.2degreesmobile.co.nz.
“Application Form” means any application form completed by you or on your behalf in support of your application for Services under an Account.
“Bill” means a statement of your Charges (and “Bills” shall be construed accordingly).
“Billing Date” means the calendar day each month on which your Bill will be sent to you by email and/or made available to you on Your 2degrees.
“Charges” means all monthly access charges, services costs, usage charges and any Mobile Phone repayment charges payable in accordance with the terms of any Service and any additional charges payable by you in respect of the Services, including early termination charges and Plan transfer charges under clause 2.
“Content” means information, data, communications, images and sounds, software or any other material contained on or available through the Services.
“Customer Care” means the 2degrees customer care team, contactable by dialling 200 from your Mobile Phone or otherwise by calling 0800022022 or +642002000 (or if you are a Pay Monthly Business customer by calling 0508 022 022).
“Default Interest Rate” is the Bank of New Zealand’s base commercial overdraft rate on the Due Date, as determined by us, plus 1.5% per month or any other rate notified to you by us.
“Due Date” means the date on which your Bill is payable by you, and being the date stated as such on your Bill.
“End User” means an identifiable individual who uses the Services (and “End Users” shall be construed accordingly).
“Fair Use Policy” means the policy set out in clause 11 of this Agreement.
“GST” means Goods and Services Tax as defined in the Goods and Services Act 1985.
“Mobile Phone” means the personal GSM mobile phone, handset or other terminal or device approved by 2degrees for use on the 2degrees Network and used by you with a SIM card to connect to the 2degrees Network.
“Mobile Phone Number” means the mobile phone number allocated to you by us or selected by you from our available mobile phone numbers (where this Service is available) or which you Port from another Mobile Telecommunications Provider.
“Mobile Telecommunications Provider” means a provider of mobile telecommunications services to consumers in New Zealand.
“National Roaming Agreement” means the agreement from time to time between 2degrees and Vodafone for the supply of national roaming services by Vodafone to 2degrees.
"Network Operator" is any entity with whom we have entered into an interconnection or international roaming agreement or arrangement (directly or indirectly) providing for the passing of customer generated or customer destined communications between us and that entity.
“Payment” means paying the Charges set out in your Bill.
“Plan” means the plan by which certain of the Services are made available to you, which includes, but is not limited to, bundles of calling, texting and data and/or Content plans and/or any Mobile Phone repayment plan (as published by us from time to time on www.2degreesmobile.co.nz).
"Port" means to transfer a mobile phone number from one Mobile Telecommunications Provider to another (and words such as “Porting”, “Ported “and “Porting Process” are construed accordingly);
"Services" means the mobile telecommunications services and related products and services made available by us and/or our Agents or approved third party suppliers to you over the 2degrees Network, including under any Plan or Value Pack.
"SIM card" means the 2degrees subscriber identity module used with a Mobile Phone to enable access to the 2degrees Network and use the Services.
“Terms for Local and Mobile Number Portability” means the requirements for local and mobile number portability determined under the Telecommunications Act 2001.
“Value Pack” means any bundle of Services purchased by you in addition to any Plan (including any calling, text, data or Content bundle).
“Vodafone” means Vodafone New Zealand Limited.
“Vodafone Network” means the New Zealand mobile cellular network owned and operated by Vodafone as modified, upgraded or expanded by Vodafone from time to time.
"we" or "us” means 2degrees and "our" has a corresponding meaning.
“Working Day” means any day (other than a Saturday or Sunday) on which registered banks are open for general banking business in Auckland, New Zealand.
"you" means the Account Owner under this Agreement and "your" has a corresponding meaning.
“Your 2degrees” means the online self service portal you must set up at www.2degreesmobile.co.nz and through which you manage certain aspects of your Account.
- This Agreement commences on the date of Activation of your Account.
- If you subscribe to Services with no fixed term this Agreement will continue on a month to month basis in respect of those Services (or Plan) until terminated in accordance with clause 25, or otherwise in accordance with this Agreement.
- If you subscribe for Services for a fixed term then in respect of those Services:
- This Agreement will continue for the duration of that fixed term, including the period of any suspension of your Account, unless that suspension was requested by you in accordance with clause 9 of this Agreement, in which case the period of any such suspension will be added onto the fixed term.
- If you terminate this Agreement or end your fixed term Services before the end of the fixed term you may have to pay early termination charges. Details of early termination charges can be obtained by contacting Customer Care or visiting www.2degreesmobile.co.nz.
- If you transfer to a new Service before the expiry of any existing fixed term, you may have to pay transfer charges. Details of our transfer charges can be obtained by contacting Customer Care or visiting www.2degreesmobile.co.nz.
- On expiry of your fixed term Services your connection to the 2degrees Network will continue on the same terms and conditions as the fixed term Services but on a month to month basis until terminated by you or us in accordance with clause 25, or otherwise in accordance with this Agreement.
- You will be required to Activate an Account either by accessing Your 2degrees and completing the Account set-up process or by visiting a 2degrees’ store or any of our Pay Monthly authorised dealers. In each case you will need to successfully complete any Application Form and credit check as required by us. In certain situations 2degrees (or our agents) may Activate your Account on your behalf.
- You must be over 18 and have a valid email address to apply for an Account. You must also hold a current New Zealand drivers licence to apply for an Account online. If you do not have a current New Zealand driver’s licence, please visit one of our stores where alternative forms of identification are accepted.
- If you are a Prepay customer who is switching to an Account, we will transfer any credit that you have on your Prepay Account to your Account once your Account is Activated.
- You will be required to set up a 4 digit security PIN on Activation of your Account which will be required to authorise certain activity in relation to your Account. You are responsible for keeping your chosen PIN, and any other information relating to your Account, secure and confidential at all times to prevent any unauthorised access to your Account.
- Activation of an Account is at our sole discretion. We do not accept any liability arising from declining to Activate an Account. Where we decide not to Activate your Account we will refund you any payment that you have made to us towards your Account.
- The Activation of your Account is conditional upon you completing the Account set up process, which includes a credit check.
- You authorise us to check your credit status with any credit reference agency or agencies as we see fit from time to time during the term of this agreement, and to pass on information about you to any credit reference agency for that purpose. We do not accept responsibility for the accuracy of information we receive about you from any credit reference agency. You must contact that agency directly if you are dissatisfied with any information supplied to us.
- We may decline to Activate your Account where you do not meet our credit criteria, including if you do not give us the names of any credit referees when we ask them. We may also terminate your Account or refuse to provide any Service to you if you fail to meet any further credit check that we carry out after Activation. The way we establish our credit criteria is at our discretion, and we are not required to disclose our credit criteria or the reasons for any decision we make in respect of your credit status.
- We may require a security deposit and/or impose other payment conditions on your Account such as a mandatory payment method or a credit limit on Activation or during the term of this Agreement. If you ask for any additional Services to be added to your Account, we may ask you to provide us with further credit referee(s) and/or security deposit and/or we may impose a credit limit or other payment conditions on your Account. Where we impose any payment conditions on to your Account, this will not be considered a Change to the Services as stipulated by clause 28 of this Agreement and clause 28 will not apply.
- The Services are only available within the coverage of the 2degrees Network.
- We will do our best to provide quality Services to you but it is not possible to provide a fault-free service at all times. If you have any questions or concerns regarding the Services please contact Customer Care.
- Coverage and Services may be adversely affected by radio interference, geographic or atmospheric conditions, outages, maintenance works, over-loading, faults or limitations in your Mobile Phone or the mobile phone or other device of the person with whom you are communicating, faults or other operational difficulties in the 2degrees Network or any other mobile telecommunications network to which our network is connected, or other circumstances or factors not wholly in our control. This means you may not receive all of the Services in all areas all of the time.
- Coverage and Services can also change as we continue to manage, build, develop and improve the 2degrees Network.
- You can connect to other people through the 2degrees Network by making and receiving local, national and international calls and text and picture messages, and accessing the other Services we provide.
- The maximum length of any one call you make is 120 minutes. If you reach this limit the call will be terminated. You can re-dial and continue the call should you wish to do so.
- Visit www.2degreesmobile.co.nz for full details of the Services, including our Plans and Value Packs, and any specific terms and conditions which apply to a particular Service.
- In order to receive the Services you must set the “network selection” setting of your Mobile Phone to “automatic”. This is typically the default setting. We cannot guarantee the availability of Services to you, and may cease to provide Services to you, if you fail to set the “network selection” setting of your Mobile Phone to “automatic”. If you require any assistance regarding the correct settings for your Mobile Phone please contact Customer Care.
- Where we provide a Service to you, including through a Plan or Value Pack, that is subject to specific terms and conditions, those specific terms and conditions will form part of this Agreement. If there is any inconsistency between these Pay Monthly terms and conditions and any specific terms and conditions applicable to you, the specific terms and conditions will take precedence.
- Where a Service is only available in a specific geographic location this will be set out in the specific terms and conditions applicable to that Service.
- Not all mobile phones and devices can receive all of the Services and some mobile phones and devices may not be compatible with the 2degrees Network. We only agree to provide Services to you when you use a mobile phone or device of a make and model that is compatible with the 2degrees Network and which is approved by 2degrees for use on the 2degrees Network. You are responsible for obtaining a compatible mobile phone or other device or equipment required by you to use the Services.
- We may restrict or prevent the use of voice over internet protocol (“VOIP”) or message over internet protocol (“MOIP”) communications on the 2degrees Network, where your use of such communications would cause degradation or impact the performance of, the 2degrees Network.
- The Services may be changed, suspended or removed by us and/or new Services introduced from time to time. If we do so, we will notify you and you may be entitled to end this Agreement in accordance with clause 28.
- We can at our discretion impose credit limits for your use of the Services where you no longer meet our credit criteria or have failed to make any required Payments on your Account. We will try to notify you as soon as possible if we impose any such limits. We may restrict your use of the Services without prior notice if you exceed any credit limit. You remain liable for all Charges incurred in excess of your credit limit.
- You must use the Services in the way described in any user guide, policy, specific terms and conditions that are applicable or other instructions issued by us and must ensure that each End User that uses the Services under your Account, whether authorised by you or not, meets your responsibilities under this Agreement.
- You will be liable for any loss, cost, liabilities and expenses that we may incur as a result of any breach of this Agreement by any End User acting under your Account, and any claim, suit or proceeding made or brought against us as a result of an End User’s use of the Services under your Account that is not in accordance with your obligations under this Agreement.
- You agree not to use your Mobile Phone or the Services to make abusive, offensive or nuisance calls or communications (including spam) or for any illegal or fraudulent purpose. We may immediately cease providing Services to you if you do so.
- You must not use any Mobile Phone which masks or in any way alters the true point of origin or termination of any call or other transmission over the 2degrees Network.
- Using or agreeing to use the Services does not give you any rights in any part of the Services. You must not resell or otherwise deal in any way with the whole or any part of the Services.
- You covenant that all information you provide to us in relation to your Account, including during the set-up process to Activate your Account, is true and correct and you undertake to provide us with such factual information that we reasonably consider necessary from time to time. We reserve the right to request original documentation. Subject to clause 24, you agree to procure from each End User their authorisation for the collection, disclosure and use of personal information about the End User by us.
- You must advise us when any of your personal information changes (for example if you change your name, email address, contact details or address) or any personal information changes in respect of any End User(s) as we may require from time to time.
- If we suspect that information supplied to us is false, or that information about a person has been supplied without their knowledge or consent, we may delay the Activation of your Account, or suspend any affected Account or the Services, while we investigate. If we are satisfied there has been no breach of this clause 8 we will Activate the Account(s) or reinstate the Services. If we are not satisfied we may immediately terminate this Agreement. You acknowledge that you will have no claim against us in respect of any delay or refusal to Activate your or any other Account, the termination of your or any other Account, or the suspension of your or any other Account or the Services as a result of this clause.
- You must keep your Mobile Phone and SIM card secure at all times. If your, or your End User’s, SIM card is lost, stolen, damaged or destroyed or is used or likely to be used without your authority, then contact Customer Care immediately and request a complete or partial suspension of your Account. Once the suspension is applied, no further Services can be accessed by anyone using the affected SIM card and further Charges cannot be incurred under that SIM card on your Account.
- If your, or your End User’s, Mobile Phone is lost or stolen then as well as suspending your Account in accordance with clause 9(a) above, you can also blacklist the affected Mobile Phone by calling Customer Care. Once the Mobile Phone is blacklisted, no person will be able to use that Mobile Phone on the 2degrees Network or another New Zealand mobile network. Mobile Phone blacklisting alone will not prevent further unauthorised use of Services or the accrual of further Charges under your Account, you must suspend the SIM card to prevent unauthorised use of Services under your Account.
- Once you or your affected End User has recovered the lost or stolen SIM card or Mobile Phone, you can request any suspension or blacklisting to be removed by contacting Customer Care.
- You will be responsible for any Charges incurred on your Account up until the time that you request that we suspend your Account in accordance with clause 9(a). We are not liable for any loss you may suffer as a result of the loss, theft, damage, destruction or unauthorised use or misuse of your Mobile Phone or SIM card, unless they are in our care at the time.
- During any suspension of your Account you will remain liable for any outstanding Charges and any applicable specific Services terms and conditions will continue to apply to you.
- If a SIM card associated with your Account is lost or stolen and your Account is suspended in accordance with this Agreement we will, if requested by you, transfer your Account to a replacement SIM card issued to you by us. We reserve the right to charge a reasonable fee for any replacement SIM card issued to you and for completing any transfer.
- Voicemail is one of the Services we provide.
- You will be required to set up a 4 digit voicemail PIN to activate your voicemail account. Your voicemail PIN will be used by you to control access to your voicemail account. You are responsible for keeping your PIN and all other information relating to your voicemail account confidential at all times.
- Un-played messages will be stored in your voicemail account for 30 days only and will then be deleted. Your voicemail account will be de-activated after 60 days of inactivity (i.e. where no messages are deposited or retrieved). We may also limit the length and number of messages which may be stored in your voicemail account.
- Calls to your voicemail account from your Mobile Phone will be charged. You are responsible for all access to your voicemail account and for any Charges incurred as a result. See www.2degreesmobile.co.nz for our voicemail charges.
- All of the Services are subject to the Fair Use Policy set out in this clause 11.
- Your use of the Services must be fair, reasonable and not excessive, as reasonably determined by us by reference to average and/or estimated typical customer usage of the Services. We will consider your usage to be excessive and unreasonable where it:
- materially exceeds the average and/or estimated use patterns over any day, week or month (or other period of time as determined by us); and
- causes us to incur additional costs or affects the performance of the 2degrees Network or affects another 2degrees’ customers’ use of or access to the Services,
- Where we offer any included Services under a Plan or other Service (such as included voice or video calls, text or picture messages, data transfer and internet use via the 2degrees Network), such use is offered for your individual private and personal use and benefit only. In no case does any Service allow for activities aimed at making profit or reselling the Service or using the Service in an unfair or excessive way and any such use of the Services by you is a breach of this Agreement. Furthermore, the use of all Services is permitted only through a Mobile Phone. Use of Services through PBX or any other line connected to a computer for the purpose (or any other purpose) of making a large number of voice and video calls and/or sending a high volume of data and/or simultaneously sending text or picture messages is not permitted.
- For the avoidance of doubt, fair use of our Services excludes activities such as auto-dialling, premium services, continuously call forwarding, tele-marketing, call centres or other activities that use our services for commercial gain and use of Cellular Trunking Units (including SIM boxes and GSM gateways).
- If in our reasonable opinion we consider your usage to be Excessive Usage or in breach of clause 11(c) we may immediately suspend, modify or restrict your use of the Services or withdraw in full or in part your access to the Services without notice to you.
- In some parts of New Zealand the Services will be provided to you through the Vodafone Network pursuant to the National Roaming Agreement.
- At all times when using the Services you are a 2degrees customer and Vodafone does not provide, grant or confer any benefit, right or privilege on you. Vodafone excludes to the maximum extent permitted by law all liability of Vodafone, the Vodafone group of companies and their personnel to you arising from or in connection with the provision of national roaming services by Vodafone to 2degrees.
- You can use your Mobile Phone in other countries. For a list of the countries, services available and any specific roaming overseas terms and conditions please visit www.2degreesmobile.co.nz.
- The terms and conditions on which you may use overseas networks will depend on your Mobile Phone, the country you are visiting and the terms and conditions of the Network Operators whose networks you connect to in each country. The terms and conditions and charges of those other Network Operators will apply in addition to ours.
- You will select your Plan as part of the Activation process for your Account.
- You may terminate your existing Plan and change to another Plan at any time. Please note that early termination or Plan transfer charges may apply. Please note that if you change your Plan, new specific terms and conditions may apply to your new Plan.
- The entitlements included in your Plan:
- cannot be redeemed for cash, phone equipment, early disconnection charges or other Charges or anything else, and cannot be transferred or assigned;
- expire on termination of this Agreement, at which point any unused entitlements will not be refunded or redeemed, and will be forfeited on disconnection by you;
- cannot be used if Services have been suspended to you or by you under this Agreement or if you have exceeded any credit limit applicable to your Account; and
- are subject to any further terms and conditions applying to the particular Plan.
If you acquired a Mobile Phone or any associated hardware or equipment, or other accessories, from us or any of our Agents, then subject to clause 18 all claims in respect of that hardware are covered by the manufacturer’s warranty (if any).
- The Charges for the Services we provide to you are set out in any specific terms and conditions which apply to a particular Plan, Value Pack or other Service. Unless stated otherwise you will be billed on a monthly basis in arrears for the Services provided to you under your Account. Any Charges you incur while roaming overseas may be billed several months in arrears.
- All calls are charged by the minute, with part minutes rounded up to the next whole minute. Each call you make or other Service you use will be charged at the standard rate applicable when the call or your use of the Service commenced, unless specified otherwise in any specific terms and conditions of any Plan, Value Pack or other Service.
- The Charges for the Services we provide may be changed, by us and/or new Charges introduced from time to time. We will notify you of any changes we make and you may be entitled to end this Agreement in accordance with clause 28.
- We will allocate you a Billing Date on Activation. Your Plan Charges will be pro-rated from the date of Activation until your first Billing Date. Value Packs commence on the date of purchase and Value Pack Charges are included in your Bills. Charges for recurring Value Packs are included in each Bill from commencement until you end the Value Pack.
- We will send to you and/or make available your Bill on or about your Billing Date by email. We reserve the right to amend your Billing Date and to send you interim Bills.
- Your Bill will include the amount payable by you for Charges incurred by you during the previous month, and the Due Date for payment.
- You can view your Bills at any time by visiting Your 2degrees. Your most recent Bill will be available on Your 2degrees the day after your Billing Date. .
- You are liable for all Charges incurred under your Account, no matter who incurs them. For example, unless you have suspended your Account or a connection under your Account in accordance with clause 9(a) where a SIM card belonging to your Account has been lost or stolen, you are responsible for the Charges relating to anyone else’s use of that SIM card. If you consider you have any unexplained usage and/or Charges that are outside your reasonable control, you can let us know within 1 month after you receive your Bill for such usage and/or Charges and we will investigate this for you.
- We reserve the right to charge you for the reasonable costs we incur to collect any overdue Charges from you.
- We further reserve the right to charge you a reasonable fee if you request information we hold about you on your Account, including call data information or other use of the Services. The fee we charge for such requests will take into our reasonable costs associated with retrieving that information.
- We may charge a reasonable account administration fee in relation to any connection(s) to the Services we regard as being dormant or for providing statements or for dealing with unused credit balances.
- At the end of this Agreement we can use any remaining credit balance left on any of your Accounts with us or use any moneys we owe you to recover any outstanding Charges. We will refund you any unused credit or security deposits remaining on your Account after all outstanding Charges are paid.
- If there is a mistake on your Bill, please let us know as soon as possible. In any event you must pay your Bill by the Due Date. If upon our investigation we find that there has been a mistake with your Bill, we will apply any correction to your next Bill.
- Our Charges may vary for sending communications (i.e. calls and texts) to a mobile phone number connected with a different New Zealand or international Network Operator and we will publish these Charges in any specific terms and conditions and on our website at www.2degreesmobile.co.nz.
- If you use your Mobile Phone while you are overseas you will incur charges from the Network Operator(s) in the relevant roaming country. These charges will be reflected in your Bill. Please note that minute or other entitlements which may be included in any Plan or Value Pack may not apply when you use your Mobile Phone overseas. Roaming charges will vary between Network Operators and may be subject to change from time to time. Please contact Customer Care or visit www.2degreesmobile.co.nz for further information on roaming charges.
- You must pay the amount set out in your Bill by the Billing Date.
- We reserve the right to require immediate payment of any Charges in excess of any credit limit applied on your Account or any usage in breach of this Agreement, including the Fair Use Policy.
- If Payment (other than of any Charges incurred in respect of any mobile repayment option) has not been made by the Due Date, we may charge interest on all sums outstanding at the Default Interest Rate until the date we receive Payment in full. Our right to charge interest is without prejudice to any other rights we have (including to charge default fees).
- We only accept Payment of your Bill by credit card, debit card, direct debit or online banking (we do not accept payment by cash, cheque or any other method).
- We reserve the right to charge an administration fee for any late or dishonoured Payments.
- If you do not pay any Bill by the Due Date we can, without prejudice to any other rights we have, suspend, bar, re-direct or restrict your use of all or any of the Services (including any unused minutes we may allow you to carry over from a previous billing period) without giving you prior notice. If we suspend, bar, re-direct or restrict the Services you will continue to be liable for all outstanding Charges.
- If you are acquiring the Services for the purposes of a business, or if you indicate to us you are doing so, then we both acknowledge and agree that:
- we are each ‘in trade’;
- any Services or Mobile Phones or other goods supplied to you and acquired by you under this Agreement are done so for a business purpose; and
- the statutory guarantees and implied terms, covenants and conditions contained in the Consumer Guarantees Act 1993 are excluded to the fullest extent permitted at law, and do not apply.
- If you are acquiring the Services or any Mobile Phones or other goods under this Agreement other than for the purposes of a business, then you may have the benefit of statutory guarantees under the Consumer Guarantees Act 1993. If the Act applies to you, all rights that you have under it will apply in addition to the rights set out in this Agreement.
- If you are acquiring the Services for the purposes of a business, or if you indicate to us you are doing so, then we both acknowledge and agree that:
As a consumer you have rights under consumer laws, including the Consumer Guarantees Act 1993 and the Fair Trading Act 1986. Nothing in this clause will affect any rights you have, or any obligations we owe you, under those.
(b) Our liability to you:
(i) Except where we are liable to you under the Consumer Guarantees Act or the Fair Trading Act, we are not liable to you or anyone claiming through you for indirect, special or consequential loss, loss of profit, loss of revenue, loss of business or missed opportunity, loss of data, wasted expenditure or lost savings arising from or in connection with your use of the Services or otherwise in connection with this Agreement, including but not limited to:
(A) your connection to the 2degrees Network or the Content or any Service we provide to you;
(B) failure, interruption or delay in the supply of, any Service, or any part of them or any negligence in this regard;
(C) the fitness of all or any of the Services for any particular purpose;
(D) the inaccurate transmission of any call; and
(E) your use of the Mobile Phone or any SIM card (whether authorised or not).
(ii) We are not liable to you for any loss to the extent it is caused by you (for example, by your negligence or breach of contract); and
(iii) If we are found liable to you, our liability to you or anyone claiming through you will be limited to $5,000 for any event or series of related events, or $10,000 for a number of events within any 12 month period.For the purposes of this clause 19 references to “we” and “our” include our officers, employees and agents, as well as any Network Operator.
(c) Your liability to us:
(i) You are not liable to us for any loss to the extent it is caused by us (for example, by our negligence or breach of contract);
(ii) You are not liable to us for indirect, special or consequential loss, loss of profit, loss of revenue, loss of business or missed opportunity, loss of data, wasted expenditure or lost savings arising from or in connection with your use of the Services or otherwise in connection with this Agreement; and
(iii) If you are found liable to us, your liability will be limited to $5,000 for any event or series of related events, or $10,000 for a number of events within any 12 month period. This limitation does not apply to your obligation to pay any Charges or mobile repayment option instalments, or for any loss or damage caused by fraud, wilful breach or wilful damage.
Any SIM card we issue to you or which otherwise comes into your possession remains our property. You must return it to us in good condition and within 30 days of termination of this Agreement, or otherwise if requested by us, and we reserve the right to charge you a reasonable fee if you fail to do so.
- We do not warrant that any Mobile Phone or other equipment supplied to you by someone else, and which has not been approved by us, will be compatible with the 2degrees Network or will support your use of the Services.
- If any Mobile Phone or other equipment supplied to you by someone else does not work properly, you need to contact the equipment supplier or manufacturer, rather than us, about the problem, which may be covered by the warranty (if any) offered by the relevant supplier or manufacturer.
- Content which you may access or is provided to you (Third Party Content), using the Services, is for your personal use only. You may not forward, copy, reproduce, re-sell or distribute Third Party Content or interfere with it in any way. You acknowledge that this obligation is also expressly for the benefit of our Agents and approved third party suppliers.
- We may monitor Content originating from you or accessed by you using the Services and remove any Content that we consider to be inappropriate, illegal or in breach of the rights of any third party. We are not responsible for any Content, or for any loss whatsoever that you may suffer in connection with your accessing any Content that does not originate directly from us.
- You agree that you are responsible for ensuring that you have the right to send all Content that you send when using the Services. We may alter Content that you send using the Services in order to enable the delivery of that Content to the recipient.
- We will allocate to you, or you may select from us (where this Service is available), a Mobile Phone Number, or it may be allocated to you by another Mobile Telecommunications Provider and Ported by you for use on the 2degrees Network. Subject to the terms of this Agreement you have full rights to use the Mobile Phone Number allocated to you.
- If you are Porting a Mobile Phone Number for use on the 2degrees Network from another Mobile Telecommunications Provider you confirm that you have the authority to request the Porting of that Mobile Phone Number, or have the relevant consent from the individual who has the rights to that Mobile Phone Number, to request the Porting of that Mobile Phone Number. You will be liable for any loss or damage resulting from breach of this obligation.
- You may Port your Mobile Phone Number to another Mobile Telecommunications Provider. If you wish to do so, you must contact the Mobile Telecommunications Provider to whom you wish to Port to and you will be responsible for completing the Porting requirements of that Mobile Telecommunications Provider.
- We will comply with our obligations under the Terms for Local and Mobile Number Portability in relation to the Porting of the Mobile Phone Number to the other Mobile Telecommunications Provider. You will be responsible for all costs associated with Porting the Mobile Phone Number.
- Any Mobile Phone Number we allocate to you or you select from us is not owned by you and we may change any Mobile Phone Number we have allocated to you or you have selected from us at any time. We will give you notice in accordance with clause 28 if we need to change your Mobile Phone Number.
- If you change the Mobile Phone Number we allocate to you to another Mobile Phone Number selected by you from us (not being a Mobile Phone Number Ported by you), and we find the selected Mobile Phone Number for sale within six months of when the SIM card using that Number was activated, we may disconnect your connection(s) to the Services without prior notice.
- If you or we disconnect your connection(s) to the Services, and you have not Ported the Mobile Phone Number allocated to you by us or selected by you from us prior to disconnection, we may re-allocate the Mobile Phone Number to another customer.
- You agree to procure from each of the End Users listed on any Application Form their authorisation for the collection, disclosure and use of personal information about him or her by us on like terms as set out in this clause 24, and to advise them of any rights they may have under the Privacy Act 1993.
- You may terminate your Account, any Service, or any connection(s) to any Service, or terminate and switch to a Prepay Account, at any time by contacting Customer Care, and such termination will be effective from your next Billing Date. Please note early termination charges may apply if you terminate prior to the end of any fixed term.
- If you are switching to a Prepay Account you will need to provide us with a minimum of 5 Working Days’ notice, if you wish for your Account to be switched to Prepay by your next Billing Date. If you do not provide us with such notice, we may be unable to switch your Account to Prepay on your next Billing Date, and in such case, your Account may only be switched to Prepay on the second Billing Date following the date of your notice.
- If you Port your Mobile Phone Number to another Mobile Telecommunications Provider your Account will be terminated effective from your next Billing Date.
- We may terminate this Agreement, your Account and/or terminate or suspend or restrict any connection(s) to a Service:
- immediately without notifying you if:
- you make abusive, offensive or nuisance calls or communications (including spam), or use any of the Services in an offensive way;
- you are abusive or offensive to our staff, our Agents, or any other person;
- we suspect you of using the Services for any unlawful activity;
- you continue to use the Services in breach of our Fair Use Policy after we have requested that you cease doing so; or
- you tamper with or modify any SIM card issued to you by us, or
- immediately by notifying you if:
- you breach this Agreement (other than a breach specified in clause 25(d)(i)) and (i) we have notified you that you have breached this Agreement (including if you have failed to pay any Bill by the Due Date) and you have failed to remedy that breach within 14 days of such notice, or (ii) the breach is material and cannot be remedied;
- you fail to pass any credit check which we may reasonably consider necessary from time to time; or
- you become insolvent, or bankrupt, or make any arrangements with creditors or go into liquidation or become subject to an administration order or receiver is appointed over any of your assets or if we have good reason to believe that you are unable to pay the Charges
- immediately without notifying you if:
- Where your Account and/or any connection(s) to a Service is terminated for a reason that is not due to an unlawful act or omission, or a material breach of this Agreement by 2degrees, then you must pay us on termination:
- any applicable early termination charges;
- all other Charges incurred up to the date of termination, including any Mobile Phone repayment balance; and
- any other moneys payable by you under this Agreement.
- If you feel that we are in material breach of this Agreement with you (including by way of an unlawful act or omission) then you must give us written notice setting out the alleged breach in sufficient detail to allow us to conduct an investigation. If are satisfied that we have materially breached this Agreement with you and have failed to remedy that breach within 28 days of receiving your notice, then you may immediately terminate this Agreement. On termination you may remain liable for all or a portion of your outstanding Charges as determined by 2degrees on a case by case basis.
- Notwithstanding anything else in this Agreement, we may terminate this Agreement and your Account for any reason by giving not less than 30 days prior notice and in this case you will you will not have to pay an early termination charge. You will only be required to pay any other outstanding Charges incurred up to and including the date of termination (which, for the avoidance of doubt, includes all remaining mobile repayment option instalments not yet paid which remain payable on the original dates agreed).
- You acknowledge that any Value Pack benefits will be lost on termination of your Account.
- If this Agreement and/or your Account and/or any connection(s) to a Service is either suspended or terminated in accordance with clauses 25(a), (c) or (d) :
- we may charge you a reconnection charge before you are able to recommence using the Services and you may need to buy a new SIM card;
- you may lose your allocated or selected Mobile Phone Number (unless you have Ported the Mobile Phone Number to another Mobile Telecommunications Provider);
- you may lose any data stored on your SIM card or contained in your voicemail account; and
- you must return your SIM card to us if we so request.
- If your Account and/or any connection(s) to a Service is restricted you will be able to continue using the un-restricted Services and our usual Charges for those Services will continue to apply.
Ending this Agreement does not affect any rights and/or responsibilities which are intended to continue after this Agreement ends.
We have certain obligations towards other Network Operators and our dealers, Agents and suppliers. Those persons (and their officers, employees, contractors and agents) will not be liable to you or anyone else for any claims, costs, damages, losses or other liabilities of any kind arising in any way from the Services we provide or from your use of those Services. This clause creates an obligation for the benefit of other Network Operators and/or our dealers, Agents and suppliers and may be enforced or otherwise relied upon by them.
We may change this Agreement and/or vary any Service at any time in accordance with this clause 28. This might involve transferring you to another available Plan or Service if we reasonably believe that you would be in a better position or would not be in a materially different position as you were prior to the transfer.
For any changes that increase your monthly Plan Charge or reduce your Plan Benefits:
(i) We will give you 30 days’ notice before making that change; and
(ii) If you are on a fixed term Plan and we make such a change, you can let us know if such a change would be detrimental to you. If we agree, acting reasonably and in good faith, you will be entitled to terminate your Agreement without any early termination charge or change your Plan without any plan transfer charge.
(d) For any changes to Value Packs, standard rates, and/or the terms of this Agreement or Services (not already covered by this clause) that may be detrimental to you:
(i) We will give you at least 10 working days’ notice, and where possible we will try to give you 30 days’ notice before making that change;
(ii) If you are on a fixed term Plan and we make such a change, you can let us know if such a change would be detrimental to you. If we agree, acting reasonably and in good faith, you will be entitled to terminate your Agreement without any early termination charge or change your Plan without any plan transfer charge; and
(iii) In considering whether you may be affected by such a change, we may consider if, and the extent to which, you have used or have been billed for the Value Pack, standard rate and/or Service to which the change relates during the three months before the date we notify you of the change.
(e) Clauses 28(c)(ii) and 28(d)(ii) do not apply if the change arises from, or relates to, a regulatory or legislative charge outside our control (for example a tax or levy imposed by law), or is in response to a change by a third party supplier (such as another network operator).
(f) Requests for termination under clause 28(c)(ii) and 28(d)(ii) must be made within 30 days from the date we notify you of the change. If you continue to use the Services after this period, you are deemed to have accepted the change.
(g) We reserve the right to make urgent changes to this Agreement if required by law or for security or technical reasons.
(h) If we are required to notify you of a change under this clause 28, we may do so by bill insert, email, voicemail or text message. Notice of all changes will also be posted on our website www.2degreesmobile.co.nz. Please check our website regularly for updates.
We may transfer to someone else all or any part of our obligations under this Agreement, and assign or transfer any of our rights under or in connection with this Agreement. Any assignee or transferee will have the same rights and powers as if they were named as 2degrees.
If we fail or delay to exercise any right or power under this Agreement, this will not be a waiver of that right or power. Any failure or delay will not prevent us from exercising that right or power in the future.
If any term of this Agreement is held to be illegal, unenforceable, invalid, or void this will not prejudice or effect the legality, enforceability or validity of the remaining provisions of this Agreement which will continue in full force and effect.
We will not be liable for any delay or failure to provide the Services or any other delay or failure in meeting our obligations under this Agreement to the extent that such delay or failure is caused by any event outside of our reasonable control.
We may subcontract or delegate the performance of any of our rights or obligations under this Agreement to any related company, Agent, service provider or other third party. In that case, each of those companies, agents, service providers or third parties and their officers, employees, contractors and agents will have the benefit of any terms of this Agreement that confer benefits on us.
If you have any dispute with us in relation to any of the Services, or otherwise in connection with this Agreement, please contact Customer Care.
This Agreement is governed by the laws of New Zealand and you submit to the jurisdiction of the New Zealand courts.