Terms & Conditions

As a customer of Digital Cloud (NZ) Limited, these standard terms and conditions apply to the use of our services. By accepting provision of our services you acknowledge you have agreed to these standard terms and conditions. This document last updated 07/03/2017.

  1. About our Services
  1. We are not obliged to provide services and have the right to refuse service to anyone for any reason at any time.
  2. Digital Cloud (NZ) Limited will use all reasonable efforts to ensure that the services are reliable and available at all times, and will use skill and care in doing so. However, because we rely on networks and equipment which we do not control, we cannot promise that our services will always be available or fully-functioning. If our services are unavailable for any reason we will endeavour to restore service as soon as possible.
  3. While we take all reasonable security precautions, the nature of telecommunications services mean that we cannot guarantee the confidentiality of any calls or transmissions you make using our services.
  4. We will be responsible for determining the manner in which the services are to be provided.
  5. We may vary the service(s) from time to time, or decide to stop providing a particular service or plan. We will notify you prior to making the variation and will tell you about any substitute service we have available. Where the substitute service is inferior to the provided service, the Customer may terminate the Agreement through one month written notice with no penalty.
  1. Using our Services
  1. You must not use or permit our services to be used in any way which breaks any law, infringes anyone’s rights, is malicious, obscene or offensive or damages either the Digital Cloud (NZ) Limited network or that of any other network operator.
  2. You must keep confidential any password or PIN number which is used by you to access our services and we recommend, for security reasons, that you change these on a regular basis. If we request, you must change your password or PIN in a timely manner.
  3. You must comply with any reasonable restrictions we impose or directions we give regarding the use of our services.
  4. You must ensure that all information you provide us is correct. If any information you have supplied to us changes, you must provide us with updated information as soon as possible.
  5. You must notify us if you wish to terminate your Agreement or service(s).
  6. You must not resell the service(s) to others without the express written permission of an authorised Digital Cloud (NZ) Limited representative.
  7. You must immediately report any misuse of your services or disclosure of your account information.
  8. If you use a Voice over IP service, you are aware that your phone line will not work without power. If you require your phone line to work at all times we would recommend you install an Uninterrupted Power Supply (UPS). In the case of UFB services the ONT supplied by the fibre provider must also be protected by the UPS.
  1. Use of Information and Confidentiality
  1. You authorise us to collect, retain and use any information about you and/or the property which is the subject of the service(s) for the purposes of providing service(s) in the terms of this Agreement. Digital Cloud (NZ) Limited may also use the information we collect about you to obtain information about you from Credit Reporting Agencies for the purpose of credit checking where this may be required to provide services to you. You agree to us disclosing information about you to Credit Reporting Agencies for collection purposes.
  2. You may decide whether to provide us any information. If you do not provide required information, we may not be able to provide the services to you.
  3. Where you are a natural person, the authority under clause 3.1 is an authority or consent for the purposes of the Privacy Act 1993.
  4. We may record or monitor calls between us to verify information and for quality control and training purposes.
  5. You are entirely responsible for the confidentiality of any password(s) associated with your account(s). Furthermore, you are entirely responsible for any and all activities which occur under your account.
  6. You agree that all intellectual property rights in the service(s) and any improvements or changes made by Digital Cloud (NZ) Limited to any service(s) belong to Digital Cloud (NZ) Limited.
  1. Charges and Payment
  1. You must pay our charges for the services we provide to you, regardless of whether you or someone else uses those services.
  2. We will invoice you monthly for services we provide. Fixed charges are payable in advance. Usage-based charges (such as toll calls) are payable in arrears.
  3. Any monthly usage rights that remain unused at the end of any given month may not be carried over to later months or have any monetary value or credit ascribed to them.
  4. You must pay each invoice by the due date advised on the invoice. You may not withhold money you believe you do not owe us nor offset sums that we owe you, unless you have advised us of an amount that is in dispute, and the reason it is in dispute, by email, our website complaints process, or in writing.
  5. If you do not pay a bill by the due date, we may suspend or restrict services until all due payments are made, or may terminate the services.
  6. Network charges will still apply during the period of any suspension.
  7. We may, at our discretion, impose a credit limit on your account.
  8. If you breach any term of this agreement and we incur costs as a result, you must pay those costs on demand.
  9. Any expenses, disbursements and legal costs incurred by us in the enforcement of any rights contained in this Agreement shall be paid by the Customer, including any reasonable legal fees or debt collection agency fees.
  10. We will use your selected method of payment when invoices are due.
  11. Any requests for refunds will be reviewed by our team, and issued at our discretion. If your refund request is accepted, it will be processed within 30 days and refunded via your bank account or cheque. If your request for a refund is declined, we will advise you in writing of our decision, including the reason for your refund request being declined, within 10 working days. In considering your request, we will act reasonably, taking into account all factors which you have brought to our attention in writing and which we consider are material and relevant on an objective basis, and any other factors we consider relevant.
  1. Internet Services
  1. You must not knowingly transmit any worms or viruses or use our service in a manner which is likely to damage or compromise the security of either the network of Digital Cloud (NZ) Limited or that of any other party.
  2. You must use our service in a reasonable and responsible manner and in accordance with established “netiquette”.
  3. We do not control the information that can be accessed through the Internet. Accordingly, we are not responsible for any inaccurate, illegal or offensive information which may be obtained from your use of our services. We are also not liable for any viruses or other harmful code which you download via the Internet.
  4. If you use our virus filter, then you acknowledge that the service works by endeavouring to prevent our mail servers from forwarding contaminated emails to the recipient. However, we cannot guarantee that the service will prevent all viruses from being forwarded.
  5. Any static IP addresses provided for use by the Customer under this Agreement remain the property of Digital Cloud (NZ) Limited.
  6. Plan speeds refer to the maximum speed your service is capable of – actual speed depends on a variety of factors.
  1. Moving Address
  1. If you move address within your contract period to an area where the same or better service (ADSL, VDSL or UFB) is available from Digital Cloud (NZ) Limited and selected by you, then no additional move charges apply. Installation charges may apply if there are no existing services at the new address.
  2. If you move address outside your contract period to an area where the same or better service (ADSL, VDSL or UFB) is available, then no additional move charges apply. Installation charges may apply if there are no existing services at the new address.
  3. If you move address within your contract period to an address that we are unable to provide services to, then the relevant Early Termination Fee will apply.
  4. Other costs may apply, for example if the existing service at your new address is faulty, or we need to get a technician involved.
  1. Changing Plans
  1. If you wish to change your access type with Digital Cloud (NZ) Limited (for example from ADSL to UFB), you may enter in to a new term contract with us for the new service and we will waive any Early Termination Fee on your current plan.
  1. Phone Numbers

This section applies if we provide telephone services to you.

  1. The phone numbers that you are assigned remain the property of Digital Cloud (NZ) Limited and does not become the property of the customer.
  2. We may need to change your phone number from time to time, if so, we will give as much notice as possible. We will not be liable for any costs which you or anyone else may incur as a result of such a change.
  3. You will advise Digital Cloud (NZ) Limited if you wish your phone number(s) to appear in the White Pages directory. If you do not instruct us to publish your phone number in the directory, it will not appear.
  4. You agree that no member of the Telecom or Spark group of companies (or their officers, employees, contractors or agents) has any liability to you in connection with the directory assistance service or your phone book listing.
  1. Supply of Equipment

This section applies if we provide equipment to you in connection with the provision of services.

  1. We will ensure that the equipment provided will be of a suitable quality and will be fit for the purpose for which it is provided and will determine the specific make and model of the equipment.
  2. Where we dispatch equipment to you, a delivery charge may apply.
  3. You acknowledge we have supplied to you any equipment specified in your application form.
  4. You agree to look after the Digital Cloud (NZ) Limited equipment and use all reasonable means to prevent it from harm.
  5. If we supply you with equipment and you terminate your connection with us, charges will apply if our equipment is not returned in good working condition.
  6. If we supply equipment to you and, for any reason, we cannot supply service, equipment must be returned to us in its original condition, including packaging and all accessories. If it is not returned in original condition, this may affect any refunds due, or incur a restocking fee.
  1. Consumer Guarantees Act
  1. You may have the benefit of statutory guarantees under the Consumer Guarantees Act 1993. If you are in trade and you are acquiring the services and/or equipment in trade, then you agree that the provisions of the Consumer Guarantees Act 1993 do not apply.
  1. Liability
  1. Subject to the section “Consumer Guarantees Act” and clauses 5 and 6 below, and except as expressly set out in these terms, Digital Cloud (NZ) Limited excludes any liability of any kind (whether in contract, tort (including negligence), equity or otherwise) to you or anyone claiming through you, relating to loss of profits or revenue, interception of data or unauthorised access to your information, loss or corruption of data, lost business or missed opportunities, wasted expenditure or savings you may have had, or any form of indirect or consequential loss whatsoever arising from your use of the equipment or services.
  2. Subject to the section “Consumer Guarantees Act” and clauses 5 and 6 below, we exclude all of our liability to you in connection with us providing services to you or failing to provide services to you. Without limiting this, we are not liable to you (and nor are any of our officers, employees, contractors or agents liable to you) in the following circumstances:
    • If any of our services are not available at any time or are faulty.
    • For any delay in commencing the provision of services.
    • If any software or equipment we supply does not operate correctly.
    • For any error in any directory listing which we arrange.
    • If your computer, or computers, become affected by any virus or worm.
  3. We are not liable to you for any fault in or non-provision of services caused by an event beyond our reasonable control.
  4. If you use another service provider’s services during the period when our service is not fully operational, we are not liable to pay any amount you are charged by that service provider. You acknowledge that no third party whose network or services we use to supply services to you (nor any officer, employee, contractor or agent of such third party) is in any way liable to you in connection with our services.
  5. If we are held to be liable to you for any reason, then our liability to you is limited to an amount equal to our average charges to you for one month in respect of any single event or related series of events and to a maximum amount equal to our average charges to you for a three-month period in any one year.
  6. For the avoidance of doubt clauses 1, 2, 4, and 5, above, set limits and exclusions on our liability for failing to meet our obligation to provide equipment and/or services to you in accordance with our contract and these terms and conditions but does not relieve us of any obligations imposed on us under any consumer laws, including the Consumer Guarantees Act 1993 and Fair Trading Act 1986 (as applicable). Clause 3 above does relieve us of that obligation in the circumstances specified. If you consider that we have failed to fulfil our obligations, then you can request a refund (see the section “Charges and Payment” which will apply to such a request).
  1. Cancellation
  1. If you have selected 12-month term as the contract term, and you cancel within this period (as calculated from the date the billing commenced) then you will be required to pay an early termination fee of $299 + GST. Digital Cloud (NZ) Limited services are offered with open term and 12-month term options depending on your customer classification (i.e., residential, business or wholesale). Different early termination charges apply (if any) depending on which term option you select. The early termination charges reflect installation fees, setup fees, and equipment (such as for example a modem) typically supplied as part of a service package is usually supplied on a cross subsidised basis where the cost of the equipment is recouped through the charges applicable over the term of the contract (or through early termination charges if the contract is terminated early).
  2. You can terminate your service by advising us in writing. We may require you to confirm in writing any advice you give us by phone.
  3. We can terminate the provision of any service to you with 30 days’ notice if a third party service provider or carrier does anything that prevents us from supplying that service to you on a commercially viable basis.
  4. We can terminate this agreement, or the provision of any service to you immediately if you breach any term of this agreement or if we reasonably believe that you have supplied incorrect or misleading information to us or you fail to meet our credit criteria. We will make best endeavour to give you five days’ notice prior to terminating the agreement.
  5. If this agreement is terminated for any reason you must still pay us for services provided to you up to the date of termination.
  1. Warranties
  1. No representation, condition, warranty or promise expressed or implied by law or otherwise applies to services except where expressly stated in this agreement.
  2. Digital Cloud (NZ) Limited will pass on to the customer the benefit of any warranty given by its suppliers or a third party such as the manufacturer where the goods are manufactured or supplied by a third party other than Digital Cloud (NZ) Limited.
  1. Disputes
  1. If you have a dispute with Digital Cloud (NZ) Limited in relation to any of our services or your account, please contact our customer services team.
  1. Force Majeure
  1. Neither party is liable to the other for failing to meet their obligations under this agreement except as specified in clause (next clause) to the extent that the failure was caused by an Act of God or other circumstance beyond its reasonable control. However, where a party has been unable to perform its obligations for a period of 60 days or more, the other party may give notice in writing to the first party.
  2. Nothing in clause 1 (the above clause) shall excuse the Customer from any obligation to make payments of sums owing to Digital Cloud (NZ) Limited while those sums are due and owing to Digital Cloud (NZ) Limited under this agreement.
  1. Changing Terms and Conditions
  1. We may change these terms at any time and will inform you of any change by emailing or writing to you, or by putting a notice on our social media feeds and/or website.
  2. If you are on a 12-month term and you consider that the change to these terms is materially detrimental to you on an objective basis, you may request us to advise whether we will waive or reduce early termination charges if you terminate early because of the changes to these terms.
  3. We will consider your request and advise you whether we will waive or reduce early termination charges and the amount of any reduced early termination charge. Any waiver or reduction will only apply if you terminate your service within one month of our advice to you.
  4. When considering your request, we will take into account whether the change to these terms is materially detrimental on an objective basis and whether the change is a result of a legitimate need to accommodate market developments.
  1. Notice
  1. If you wish to notify us of anything you can do so by writing to us, or by calling us. We may require you to confirm in writing any advice you give us by phone.
  2. If we wish to communicate with you or notify you of anything we can do so by phone, facsimile, or email to the last known address or number we have for you.
  3. Any notice delivered personally or sent by facsimile or email after 5.00pm on a working day or any day that is not a working day will be deemed to have been received on the next working day.
  4. If your contact details change you must advise us of the new details as soon as possible.
  1. Entire Agreement, Variation and Non-Waiver
  1. This agreement contains all of the terms, representations and warranties made between Digital Cloud (NZ) Limited and the Customer and supersedes all prior discussions and agreements covering the subject matter of this agreement.
  2. No variation or waiver of any provision of this Agreement shall be recognised or binding on Digital Cloud (NZ) Limited unless it is in writing and signed by an authorised representative of Digital Cloud (NZ) Limited.
  3. Failure or delay by Digital Cloud (NZ) Limited to enforce any of the terms and conditions contained within this agreement shall not be deemed to be a waiver of any of the rights or obligations Digital Cloud (NZ) Limited has under this agreement.
  4. If any provision of this agreement shall be invalid, void, illegal, or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
  5. The customer shall not assign all or any of its rights or obligations under this Agreement without the written consent of Digital Cloud (NZ) Limited. Digital Cloud (NZ) Limited reserves the right to transfer our rights and obligations under this Agreement to anyone else. We will notify you if we do so. The transfer of our obligations under this agreement to anyone does not relieve us of our liability to you but our obligations may be fulfilled for us by any person to whom we have transferred our rights and obligations.