We've worked hard to make sure that our obligations, and yours, are stated clearly in the following terms and conditions. We want to ensure that our interests, and yours, are protected.
1. Scope of Agreement
1.1. You accept from us the supply of broadband and other associated services as necessary or as agreed in accordance with these standard terms and conditions and any agreed Special Terms. Together, and as updated or amended from time to time, these all form our "Agreement" with you.
1.2. The Special Terms (if any) will prevail if there is any conflict or inconsistency between them and these standard terms and conditions.
1.3. You are responsible for paying for the services in this Agreement and for making sure your contractual obligations are met.
1.4. This Agreement applies to the Property for so long as you acquire broadband or other associated goods and services from us for residential (as opposed to business) purposes. If you move to another property, you may apply to become a Customer in respect of that other property by completing an online move form or contacting our Customer Service Representatives, and fulfilling our other criteria.
2. Becoming Our Customer
2.1. We only supply broadband services to joining or existing residential customers on standard payment plans who are supplied with Energy by us. Broadband services are not available to GLOBUG customers.
2.2. If you are, or are applying to be, a residential Energy customer of Mercury, you may apply to receive broadband services in any area where we offer broadband services in a number of ways, including:
(a) completing our account application procedures (including in person, with our Customer Service Representatives over the telephone, or by completing an application form in hardcopy or online on our website, mercury.co.nz); or
(b) you may also become a Customer if you are an existing customer of another broadband retailer whose business or customers we acquire.
2.3. We will respond to your application within 14 days. If your application is accepted (which we may do or decline to do, at our sole discretion), or you otherwise become a Customer, you will be bound by the terms of this Agreement.
2.4. We may choose not to accept your application if:
(a) you are not a residential Energy customer, or are not applying to be a residential Energy customer;
(b) you fail to meet our payment, credit or other criteria (for example, not providing us with the information we need to set up your account);
(c) you fail to meet any eligibility criteria set out in any Special Terms, or
(d) you or someone occupying your address has a debt owing to us or our agents from a previous account. If you have a debt owing to us or our agents from a previous account, we may require immediate payment of that debt before accepting you as a Customer.
2.5. More than one person may be the Customer at the Property, and each such person will be bound by (and jointly and severally responsible for complying with) this Agreement. We may recover unpaid invoices from any one or more persons who are a Customer.
2.6. You must notify us if you no longer wish to be a joint Customer. We may elect to terminate this Agreement with respect to the outgoing Customer or require the remaining Customers to enter into a new agreement (or elect to do both). You will not be charged an early termination fee (if any) where the remaining Customers continue to receive the broadband services at the Property. If you wish to terminate this Agreement, you must comply with clause 17.1.
2.7. You may nominate a preferred contact person or persons to make decisions and deal with us for you under this Agreement. You confirm that your nominated contact person is 18 years or older. You will remain responsible for meeting your obligations under this Agreement.
2.8. Once you have completed your application, you have committed to buying broadband services and/or any relevant Equipment from us. If you have made a mistake, call us on 0800 10 18 10 before your connection date and we will do our best to resolve any problems. If you choose to cancel your service after this time, we may charge you an early termination fee and other usage charges – please see your Special Terms (if any) for more information about charges that may apply.
2.9. If you currently receive broadband services from another provider, you should contact that provider directly in order to confirm any notice period and cancel those services. We strongly recommend double checking your agreement with your previous broadband provider to make sure you're aware of any early termination fees or other charges that will apply when you end your agreement with them, as we won't be responsible for those charges.
3. Start Date of this Agreement
3.1. Unless there is a different date set out in any Special Terms, you will be bound by this Agreement from:
(a) the date you agree to this Agreement, or become responsible for the broadband account for the Property or Properties to be supplied under this Agreement; or
(b) the date we first supply you with broadband or other services at any Property or Properties to be supplied under this Agreement.
3.2. If broadband is not supplied at the commencement of this Agreement, we will endeavour to commence supply as soon as reasonably practical, subject to any requirements set out in this Agreement.
3.3. This Agreement continues until lawfully terminated.
3.4. This Agreement is our entire agreement in relation to provision of broadband services and replaces all prior agreements, understandings, and communications relating to our supply of broadband to you at any Property or Properties supplied under this Agreement.
4. Your obligations regarding broadband supplied
4.1. You must not use our services in a way which breaches any laws or this Agreement with us, including our Improper Use policy which is set out at clause 9 below.
4.2. You must:
(a) only use the services for residential or private use and not for business or commercial purposes;
(b) use our services in a reasonable and responsible manner;
(c) comply with any reasonable restrictions we impose or directions we give regarding the use of our services;
(d) ensure that all information you give us is correct and complete, and where any information you have supplied to us changes (such as contact details), provide us with updated information as soon as possible; and
(e) promptly tell us if there has been a misuse of our services or you're aware of unauthorised access to your account.
4.3. All content accessed, sent and/or used by you through the broadband services is accessed at your risk, and Mercury and Our Representatives shall not be liable for any claims, losses, actions, damages or proceedings arising out of or otherwise relating to your access of such content. 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 virus, malware or other harmful code which you download.
4.4. You are responsible for making sure your internet-capable devices (eg TVs, laptops, PCs etc) are compatible with Mercury's services. We are not responsible for any costs you incur for any extra hardware or software you require to make use of our broadband service.
4.5. We do not proactively monitor what content you download or access, however, we must act on lawful requests for information and/or interception as well as infringement notices which we receive under the Copyright Act 1994. This action may include sending you an infringement notice.
4.6. You are responsible for making sure that anybody else who you allow to use the services acts in accordance with this Agreement, as you will be responsible for their actions (including the charges for all services provided), no matter who uses the services.
5. Types and quality of services
5.1. We will supply you with broadband and provide other associated services as necessary or as agreed in accordance with:
(a) the requirements set out in this Agreement;
(b) all legal requirements and applicable statutes, regulations, industry rules and codes of practice (as amended, varied or replaced from time to time) as well as any requirements that the Network Provider may impose relating to use of its Network; and
(c) reasonable care and skill.
5.2. Not all services are available in all areas or to all Customers. We cannot guarantee our service will be available to you until it is successfully connected.
5.3. We will use reasonable endeavours to make our services available to you in accordance with this Agreement. However, our services rely on us using Networks and services owned by other people, including Network Providers. As a result, we cannot promise that our services will always be available or fully functioning, and we cannot guarantee the quality, reliability and coverage of the service that will be available to you. Other issues beyond our control (such as outages and Network problems) may also result in you being unable to connect or you may experience a less than an optimal service.
5.4. Our plan speeds are based off the national peak time average speeds from the latest Commerce Commission 'Measuring Broadband NZ' report. Actual speeds you experience may be higher or lower, as speed is impacted by many different factors such as Network Providers’ delivery of data to or from the Network, your Equipment, number of users accessing the services at your Property, your geographic location and many other factors. Because of this, we are unable to guarantee that your plan speeds will be available to you at all times.
5.5. The total amount of data you can upload or download is unlimited. Other factors may influence the particular speeds or latency you can achieve to servers nationally and internationally. Our control of these speeds is limited. Connections to servers outside our Network Providers’ Networks are on a reasonable endeavours basis. It may not be possible for you to achieve your desired or expected speeds or latency where you are connecting to Equipment outside our control.
5.6. While we take reasonable security precautions, due to the nature of telecommunications services, we cannot guarantee the confidentiality of any calls or transmissions you make using our services.
5.7. We have some service restrictions in place which may impact certain types of Customers. We block sites that are listed on the Digital Child Exploitation Filtering System. We also use Carrier Grade Network Address Translation ("Carrier Grade NAT") technology in our Network, meaning your IP address will not be publicly available. We take our legal obligations seriously and will comply with any laws which require us to manage traffic or restrict services available to our customers.
5.8. We do not offer static IPs.
5.9. We may from time to time change the manner in which, and the technology by which, Mercury provides the services. If such change detrimentally affects the service you receive, you may terminate this Agreement without incurring any early termination fee, provided you give us notice of such termination no later than 30 days following receipt of our notice that your services are changing.
6. Ownership and responsibility for Equipment
6.1. You are responsible for any Equipment on the Property that is not owned or provided by us or Our Representatives (for example, if you bring your own router). You are responsible for ensuring that it is compatible with our services, that it does not interfere with our Equipment or the Network, and that it meets all relevant legal requirements. We may not be able to help you if this Equipment is faulty or if it is not compatible with our services and you may not achieve the national peak time average speeds for your plan.
6.2. We may install Equipment at your house, or provide you with Equipment to help you connect to the Network. Where we do, you must not interfere, damage or tamper with that Equipment, or allow anyone to work on it who hasn’t been authorised by us to do so. You agree to follow any reasonable directions from us about any Equipment supplied by us or Our Representatives.
6.3. You must allow us or Our Representatives to test the configuration of your Equipment from time to time and comply with any reasonable directions we give to you to reconfigure your Equipment if we reasonable believe it is necessary to do so.
7.1. You will need a suitable router to use our broadband services. We can provide a router and everything you need to get up and running, or you can use your own. Our routers may be delivered to you with firmware preinstalled that gives us remote support access. This improves our ability to remotely troubleshoot your device, WiFi and firmware issues.
7.2. If you use a router we have provided, then once your router has been successfully delivered to you, you will own the router and it will become your responsibility. If your router doesn't arrive, it arrives damaged or there are any other issues with your router, please get in touch with us.
7.3. If you use the router we provide, our support team can help with any problems you might have with it and the router will be covered by the Consumer Guarantees Act 1993.
7.4. If you use your own router, we cannot guarantee that it will be compatible with our services, or that it will remain compatible, and our support team may not be able to help with any issues you have with it. Connection support to that router is your responsibility, and you may need to contact the manufacturer of that device for such support.
7.5. We strongly advise you to password protect any router that you use, so that others who are not authorised by you cannot access your network. We also strongly recommend that you use internet security software such as anti-virus and anti-malware software, as Mercury and Our Representatives will not be responsible for anyone who gains access to your computer.
7.6. We and our Network Providers reserve the right to occasionally manage your router to ensure a high level of security within any Network. This may include such tasks as updating router firmware, updating DNS settings and updating or changing general settings.
8. Installation and access
8.1. From time to time, we or our Network Providers may need to access your Property in order to provide you with the services. If we or they require, you must allow us or them safe, unobstructed and easy access as and when reasonably required for the purposes of installing, maintaining, monitoring and removing Equipment or any other reasonable purpose in respect of the services we provide you under this Agreement.
8.2. We and Our Representatives will carry proper identification at all times when accessing the Property for any purpose. Contractors will identify themselves when accessing the Property and will provide evidence of identification on request. You will need to stay at the premises until the work is finished, or you can arrange for someone who is over 18 and able to make decisions on your behalf to stay for you.
8.3. We may pass on fees or charges from Network Providers and other suppliers that relate to the supply of services to you. We may also charge you for any services performed on your property requested by you or a third party contractor working on your behalf (for example, a builder, technician or arborist). Where these fees or charges may arise, we will tell you about them beforehand, and you will be able to cancel the services if you do not want to proceed.
8.4. We will not be liable for any cost you incur by directly engaging a third party (other than us) without our prior written consent, to perform any service in relation to the Network, regardless of whether our Network is fully operational at any given time.
9. Improper Use Policy
9.1. By using our services, you agree to comply with Mercury's Improper Use Policy. This means you won't use Mercury's services in a way that, in our reasonable opinion, is illegal, infringes anyone's rights, is malicious, harassing, obscene, offensive or otherwise causes detriment to us, our Customers and/or third parties.
9.2. Specific examples of what we consider Improper Use include (but are not limited to) the following activities:
(a) reselling or rebilling any of our services or otherwise providing our services to another party;
(b) using Mercury's services for the planning and distribution of spam and/or other unethical marketing activities;
(c) using Mercury's services to knowingly transmit or distribute any malware, viruses or harmful material or software;
(d) using Mercury's services to breach, or attempt to breach, the security and operation of any Network, Equipment, or any other system used by Mercury or any other third party. This includes (without limitation) hacking, cracking into, monitoring or using systems without authority; scanning ports; improper configuration of mail servers and FTP servers enabling distribution of spam; interference of service to any user or Network; denial of service attacks and unnecessarily excessive traffic;
(e) using our residential services for a use which, in our reasonable opinion, is a use for which the services were not intended, such as providing data storage services or providing content or upload services for commercial benefit; and/or
(f) otherwise using Mercury's services in a manner which is likely to or is intended to damage or compromise the security of our Network or anyone else's Network.
9.3. Mercury reserves the right at its discretion to review the service being provided to you if Mercury considers you are engaging in Improper Use of our services. If your use continues to fall outside of Mercury's Improper Use policy after receipt of a request to stop or alter the nature of such usage, we or a Network Provider may, without further notice, withdraw your access to the services.
10. Price and Payment
10.1. We will charge you for broadband services and any other products and/or services we provide to you at the rates, fees and charges detailed in your Pricing Plan or as set out in the Special Terms or as agreed with you from time to time. We may also charge you service fees for services provided under this Agreement at our then current rate. You may view our current service fees on our website or request a copy from us on 0800 10 18 10. We will notify you if we become aware that you will incur a fee that you have not already agreed to, and where appropriate explain how you can avoid that fee.
10.2. We will determine which Pricing Plan you are eligible for based on what type of broadband is available at your Property and applicable credit criteria. If you stop being eligible for the Pricing Plan you are on, or we determine that you would be better suited to a different Pricing Plan, we may transfer you to an alternative Pricing Plan for which you are eligible on giving you at least 30 days’ prior notice. If we transfer you to an alternative Pricing Plan, or you choose an alternative Pricing Plan under this clause, you will not be charged an early termination fee in respect of that change. Further, you may notify us that you wish to terminate the Agreement within 30 days of receiving notice of the proposed transfer. If you elect to terminate the Agreement under this clause, you will:
(a) not be charged an early termination fee (if any); and
(b) be invoiced the charges under your previous Pricing Plan up to the date that termination takes effect.
10.3. Subject to eligibility, you may choose an alternative Pricing Plan which you wish to apply to you and notify us of your choice. Should you be eligible for the plan chosen, we will transfer you to the alternative Pricing Plan chosen by you within 30 days of receiving such notice from you.
10.4. You agree to pay the charges (including GST) for broadband services supplied to you under this Agreement, and any other valid charges (including GST) payable under this Agreement, including any taxes, fees and levies which we may pass on to you. You are responsible for all fees and charges associated with your account, including any fees and charges incurred by any other person (whether authorised or unauthorised) who accesses your services. Your failure to pay any such charges when due will constitute a material breach of this Agreement.
10.5. We will provide you with sufficient information to enable you to check the amount we have invoiced to you for broadband and other products and services, including (where appropriate for the products and services):
(a) the charges for broadband supplied;
(b) any installation or hardware fees (eg for a router) you have agreed to;
(c) the period each charge relates to;
(d) all relevant fees and charges payable; and
(e) all other products and services provided to you.
10.6. Where possible we will endeavour to invoice you on a monthly cycle at the same time you receive your invoice for Energy, unless we have otherwise agreed. Your monthly cycle is based on when you connected your broadband services. For example, for a connection date of 5 September, your billing period for broadband services would be 5 September through to 4 October, and then the next billing period would start on 5 October. The exception is if you connect on the 29th, 30th or 31st of the month, then we will make your connection date the 1st of the month. For example, for a connection date of 29 September, your billing period for broadband services would be 1 October through to 31 October, and then the next billing period would start on 1 November. This means you may be paying for your broadband services in advance or in arrears or a combination of both depending on when your connection date is in your Energy billing cycle. There may be occasions where we are unable to invoice you for your broadband services on a monthly cycle. Where this happens, and you have trouble paying your invoice, please call us on 0800 10 18 10.
10.7. If you have more than one Property you want us to supply broadband services to and the Properties are under the same account with us, your monthly cycle for broadband billing for any subsequent Properties will be the same as for the first Property you get connected to our broadband services. You may be required to pay a part month charge for that first month – for example, if your existing monthly broadband cycle runs from 5 September to 4 October, and your second Property had broadband connected on 1 October, you will receive a part-month charge for the period from 1 October to 4 October, and will be charged in accordance with the existing monthly broadband cycle thereafter.
10.8. You must pay us the full amount of any invoice (including any estimated invoices) by the date for payment shown on the invoice. When we receive payment from you, we may use that to pay any overdue amount (including amounts you owe us for Energy) before paying your current fees and charges.
10.9. If you fail to pay any of our fees and charges in full and by the due date, we may terminate your use of our broadband service. We may recover from you any collection costs, legal fees or other costs incurred by us relating to late payment or non-payment (including dishonoured payment) of our invoices. If you have difficulty paying an invoice, you should contact us.
10.10. If you dispute the accuracy of an invoice, you must notify us of the dispute, and the amount in dispute, as soon as possible (and, in any event, before the due date for payment). The only disputes to which this clause applies are disputes as to accuracy. The undisputed portion of each invoice must still be paid by the due date, but you may withhold the disputed amount until the dispute is resolved in accordance with clause 16 below. If the withheld amount is found to be payable by you, we will notify you in writing and you must pay that amount within 14 days of the date of that written notice. If you have paid a disputed amount and it is found that we have made an error and charged you an incorrect higher amount, we will refund the difference between the incorrect and correct amounts by crediting your account.
10.11. If, for any reason, we make an error in calculating the amount owing and charge or have charged you an incorrect amount:
(a) if we have overcharged you, on becoming aware of the error, we will promptly credit your account with the difference between the incorrect and the correct amounts;
(b) if we have undercharged you, we will invoice you for the underpaid amount to the extent reasonable taking into account whether we or you contributed to the error or could reasonably have been expected to know of the error. No interest is payable on any amount overpaid or underpaid in the case of an incorrect invoice.
10.12. If an invoice is sent more than two months late, and you are not responsible for its lateness, we will consider arrangements with you such as extended time to pay (to at least the length of time covered by the invoice), or adjustments to the amount payable (to the extent reasonable).
10.13. You may pay your invoice by any one of a number of different methods appropriate to the products and services we provide to you. However, your payment method for broadband and other services must be the same payment method as for your Energy services. For payment options please see your invoice, contact us on 0800 10 18 10 or see our website (mercury.co.nz).
10.14. If you hold more than one account with us and you close one such account, we may transfer any balance outstanding in respect of the account being closed into any account which remains open. The amount transferred must be paid by you in accordance with the payment terms of the account under which it was incurred, but a default in payment may be treated by us as a default under this Agreement.
10.15. Should you request a product or service that involves an additional cost, we will advise you of the additional cost at the time of the request for the product or service, or an estimate if the actual cost is not known.
10.16. Where you owe us overdue amounts, we may require you to enter into debt repayment arrangements (including, by way of example, pre-payment for broadband and associated products or services).
10.17. If we require you to pre-pay for broadband and associated products or services because you owe us overdue amounts, then:
(a) we will give you reasonable notice of the requirement to move to that pre-pay arrangement; and
(b) we may apply up to one half of each pre-payment amount toward payment of that debt and any applicable fees, and the balance of each pre-payment amount as pre-payment for the broadband and associated products and services to be supplied, until the debt is paid in full.
11. Interruptions to supply
11.1. Our services rely on power, and will not be available during any power failure or if we terminate your electricity services under our Energy agreement with you.
11.2. You should consider making other arrangements for continued service if you need continued service for a particular reason. If our services are unavailable for any reason, we will endeavour to work with the relevant Network Providers to restore them as soon as possible.
12. Faults and call-out services
12.1. We will try to resolve any fault that you report to us as quickly as possible. To make a service request or report an incident, you should do so by contacting Mercury at firstname.lastname@example.org or call us on 0800 10 18 10. Our standard residential support hours are 8am to 9pm Monday to Friday and 8.30am to 5pm on Saturday and Sunday.
12.2. If we send a technician to your Property and no fault is found, or the fault is caused by you, there may be a $150 charge (such charge will be advised to you before you agree to have a technician be sent to your Property).
12.3. You acknowledge that to the maximum extent permitted by law, no Network Provider or third party whose Network or telecommunications services we use to supply services to you (nor any officer, employee, contractor or agent of any such third party) is in any way liable to you in connection with any fault or defect in that Network or those telecommunications services that affects our services. This clause is intended to confer a benefit which those third parties can enforce. This clause does not affect any rights or remedies available to you under the Consumer Guarantees Act 1993 or the Fair Trading Act 1986.
13.1. We, Our Representatives or our Network Providers may disconnect you from our services:
(a) if you materially or persistently breach any term of this Agreement (including our Improper Use policy);
(b) if you fail to pay an invoice or part of an invoice relating to the corresponding supply of broadband or other services (whether to your current or past address or addresses) by the due date and you are not disputing liability for the unpaid amount using our Dispute Resolution Process;
(c) if you are no longer a Mercury residential Energy customer at the Property you're receiving our broadband services;
(d) if we suspect your account has been compromised;
(e) if we consider it is reasonably necessary to protect or maintain a Network;
(f) if you ask to have your broadband disconnected; or
(g) to the extent that we must do so in response to the Network Provider requiring the supply to be disconnected.
13.2. For disconnections due to non-payment, disconnection notices will be sent to the address (whether physical or electronic) you have given us, at least 7 Business Days prior to the intended date of disconnection (provided that notice need not be given if we have entered into a payment arrangement and you default on that arrangement). We will also provide you with a separate final warning no less than 24 hours before the intended disconnection. Broadband will only be disconnected on a Business Day that is not a Friday or the day before a public holiday. Disconnection notices will include the intended time frame within which disconnection will take place, information on the charges you may have to pay for disconnection and reconnection, and the steps you can take to avoid disconnection.
13.3. For disconnections due to any of the other reasons set out at clause 13.1, we will call you to let you know (or send you an email to the email address we hold for you if we are unable to contact you by phone) that your broadband will be disconnected 7 days from the date we contact you by phone or email. We will let you know information on the charges you may have to pay for disconnection and reconnection, and the steps you can take to avoid disconnection (if any). We will also confirm the disconnection date and expected time by email no less than 24 hours before the intended disconnection. You will receive a SMS message on the day of disconnection confirming disconnection has taken place.
13.4. If your Energy services are being disconnected under clause 13 of the standard terms and conditions for residential Energy customers, you will receive notice of disconnection of your broadband services at the same time as notice of disconnection of your Energy services.
13.5. We may disconnect your broadband service without notice where we reasonably deem your activity to be malicious, illegal or fraudulent, or activity which may pose a material threat to our or Our Representatives' Network or other customers.
13.6. If we agree to reconnect your broadband supply, we may require one or more of the following prior to reconnection:
(a) proof of payment of outstanding moneys owed to us;
(b) payment of any collection costs we incur in obtaining payment of the amounts you owe us;
(c) agreement on a payment arrangement satisfactory to us, which may include pre-payment for the broadband and other products and services we provide to you; and/or
(d) a satisfactory arrangement for access to Equipment to be made.
Our current fees associated with disconnection and reconnection can be found on our website or by calling us on 0800 10 18 10.
13.7. If your broadband supply is disconnected at your request (including temporary disconnections) or because of your breach of this Agreement, we may charge you for any costs associated with the disconnection and reconnection, including the costs of any disconnection or reconnection steps we take.
13.8. Once you have satisfied the requirements for reconnection, we will restore your supply as soon as reasonably practicable.
14. Network Provider requirements
14.1. We do not own the Network through which our broadband services are provided to you. Our Network Providers do and they are responsible for the Network.
14.2. You must abide by the terms of the local fibre company’s or other Network Provider’s end user terms, which will apply to you as the end user of broadband services. You understand that our Network Providers may enforce those terms directly against you should you breach them. The applicable terms will depend on which area you live in:
(a) For Whangarei, the local fibre company is Northpower Fibre Limited - northpowerfibre.co.nz/fibre/agreements.
(b) For Hamilton, Hawera, New Plymouth, Tauranga, Tokoroa and Wanganui, the local fibre company is Tuatahi First Fibre Limited - tuatahifibre.co.nz/ultra-fast-broadband/.
(c) For Christchurch, the local fibre company is Enable Networks Limited - enable.net.nz/for-home/end-user-terms/.
(d) For all other areas, the local fibre company is Chorus New Zealand Limited - chorus.co.nz/chorus-end-user-terms.
More information is available at crowninfrastructure.govt.nz/ufb/who/.
15.1. Nothing in this clause shall limit or reduce your rights (if any) under the Consumer Guarantees Act 1993 or the Fair Trading Act 1986, unless you acquire broadband or other goods and services from us for the purpose of a business, in which case you agree that the Consumer Guarantees Act 1993 will not apply.
15.2. If we or our Network Providers are ever liable to you for losses arising from a breach of this Agreement or arising from our negligence, our maximum combined obligation to pay damages or losses is limited to $5,000 for any one event and a total of $10,000 in respect of all events in any 12 month period. This limitation does not apply for any loss or damage caused by fraud, wilful breach or wilful damage.
15.3. Your liability to us under this Agreement is limited to $5,000 for any one event and a total of $10,000 in respect of all events in any 12 month period. This limitation does not apply to your obligation to pay any amounts owed by you under this Agreement, under any indemnities, or for any loss or damage caused by fraud, wilful breach of wilful damage.
15.4. If you suffer any loss as a result of your agreement with us, you must take reasonable steps to avoid or minimise your loss. We are not liable for any loss that results from your failure to take those reasonable steps or any loss to the extent that it is caused or contributed to by you.
15.5. Except to the extent required by law, we will also not be liable to you for any economic loss (including lost profits), indirect or consequential loss or damage (including lost data).
15.6. You will indemnify us and Our Representatives for all costs, losses, liabilities, claims, or damages (including legal costs) that may be incurred in recovering amounts owed by you under this Agreement.
16. Dispute resolution
16.1. If you wish to lodge a complaint with us please phone our Customer Service Team on 0800 10 18 10, fill in a formal complaint form at mercury.co.nz/help/contact-us/formal-complaints, or write to us at:
Mercury NZ Limited
Private Bag 92008
Victoria Street West
Our Dispute Resolution Process is a free service and will apply if you have a complaint or dispute concerning any matter in relation to this Agreement (other than a complaint about the nature or level of our charges). A copy of our Dispute Resolution Process can be obtained on request from our Customer Service Representatives or viewed on our website (mercury.co.nz/help/contact-us/formal-complaints).
(a) we have not resolved your complaint within 20 Business Days and have not written to you explaining why we need more time to reach a resolution; or
(b) we have taken longer than 6 weeks to resolve your complaint; or
(c) you are not happy with our proposed resolution,
you may refer the dispute to the Telecommunication Dispute Resolution (TDR) who provide a free and independent dispute resolution service. TDR can be contacted at:
Free phone: 0508 98 98 98
Post: Telecommunications Dispute Resolution
PO Box 5573
Fax: 04 918 4901
Please note that before contacting the TDR, any complaints must be registered with us first.
16.3. If you dispute the correctness of broadband charges on your invoice we will not disconnect your broadband supply for non-payment of the disputed portion of your invoice until the matter has been dealt with through our Dispute Resolution Process. This will not prevent disconnection for other reasons, such as for materially or persistently breaching this Agreement.
16.4. If a complaint is complex or involves other parties (including Network Providers), we will investigate on your behalf. In some cases, we may refer you or your complaint to a third party (like a Network Provider) to manage and resolve pursuant to their dispute resolution process.
16.5. Once a dispute in respect of charges is resolved, clause 10.13 will apply with respect to any amount payable by us or you.
17.1. Subject to any fixed term under your Special Terms (if any), if you want us to stop supplying you with broadband, you may terminate this Agreement with respect to the supply of broadband by giving us at least 30 days' prior notice, unless we agree to a shorter notice period. We will cease supplying broadband to the Property at the end of the notice period. You will still be able to use your broadband supply during that notice period unless you transfer to another broadband supplier during that time.
17.2. We may terminate this Agreement where you materially or persistently breach any term of this Agreement. If you breach any term of this Agreement, and that breach is capable of being remedied, we may give you 14 days’ written notice of default. If you:
(a) remedy that breach within that 14 day period, and fully indemnify us for the consequences of that breach, the notice of default shall be deemed to be withdrawn and this Agreement shall continue in full force and effect;
(b) fail to remedy that breach within that 14 day period and/or do not indemnify us for the consequences of that breach, we may at our discretion, on 1 Business Days' notice, terminate this Agreement with respect to the corresponding supply of broadband or other products or services.
If you breach any term not capable of remedy we may, at our discretion, immediately terminate this Agreement with respect to the corresponding supply of broadband or other products or services.
17.3. Notwithstanding clause 17.2, we may also terminate this Agreement:
(a) immediately with respect to the supply of broadband if our agreement with a Network Provider is terminated;
(b) with 7 days' notice if you no longer meet the eligibility criteria for your services, for example you are no longer a Mercury residential Energy Customer, or you change to an Energy Pricing Plan that Mercury does not offer broadband with;
(c) immediately if you are adjudicated bankrupt; or
(d) immediately in accordance with clause 20.
17.4. On termination of this Agreement, we may, after giving you any required notice, disconnect your broadband and immediately cease supplying broadband and other associated services to you. If your Energy services are not terminated at the same time as this Agreement, your agreement in relation to the supply of Energy services will continue in full force and effect.
17.5. You will remain responsible for paying for all broadband and other associated services supplied to you prior to termination of this Agreement or up to and including the date of disconnection (whichever is the later).
17.6. Where our service to you relies on a Network Provider or other third party providing services to us, then we may need to terminate your service if the Network Provider or other third party is unable or unwilling to provide that service to us, if the Network Provider or third party are withdrawing it from general availability, or replacing it with a new service. Where this occurs we will provide as much notice as we are reasonably able and where practical, try to move you to a comparable service.
18. Moving premises
18.1. If you move out of the Property, you need to give us no less than 10 Business Days' advance notice together with details of your forwarding address. Your next invoice will include your final charges for broadband at your current Property.
18.2. Depending on where you move in New Zealand, we may still be able to supply you with broadband – it will depend on what broadband and Energy services are available at your new property. If we agree (which we may do or decline to do at our sole discretion) to supply you with broadband at your new address, your account with us will, from the date such supply commences, cover both the supply of broadband and other associated services at your new address and all outstanding charges carried over from your old address.
18.3. If you do not give us any of the notifications required under clause 18, you will remain liable for all broadband and other associated services supplied to the Property until such notice is actually received by us.
19. Force majeure
19.1. You acknowledge that, subject to clause 19.3, we cannot be held liable for interruption to the broadband and associated products and services provided to you under this Agreement, or other breach of this Agreement, due to any delay, default or failure of operation by any event beyond our reasonable control, and acts of terrorism, war, accident, act of God, industrial action, embargo, partial or complete Network failure (such as outages, Network problems and problems with our Network Providers), Equipment failure or default by you or any Network Provider or third party ("Force Majeure Event"). If we are unable to carry out any of our obligations to you because of a Force Majeure Event, this Agreement shall remain in place except our obligations shall be suspended without liability for as long as the Force Majeure Event continues. If we suffer a Force Majeure Event that will last for a significant period of time, we will endeavour to notify you of this at the earliest practical time.
19.2. We acknowledge that, subject to clause 19.3, you cannot be held liable for your breach of this Agreement due to any delay, default or failure of operation to the extent caused by any event beyond your reasonable control, including acts of terrorism, war, accident, act of God, industrial action, embargo, partial or complete network failure, Equipment failure or default by any third party. You may not claim the benefit of this clause when you have failed or delayed in performance of your obligation to pay money to us under this Agreement, except where you have the financial ability to make payment but you are prevented from doing so by an event beyond your reasonable control affecting a banking system which prevents the relevant funds being transferred from you to us (or our nominee).
19.3. Neither party may claim the benefit of this clause 19 in respect of any event which the party affected could have prevented or overcome that event by exercising a standard of reasonable care.
20.1. We may change the services we provide, these standard terms and conditions, our Dispute Resolution Process, Pricing Plans and/or Payment Methods at any time by giving you at least 30 days’ prior notice of such change, including by way of example on your invoice or on our website. Such changes will apply following 30 days' notice. If the total aggregate invoiced price is increased by more than 5%, we will send you separate written notice of the change as soon as possible (including an explanation of the reasons for the change). Otherwise we will let you know of the changes, either by written notice or in a public notice in a local newspaper at least 30 days before the changes come into effect. Your continued use of broadband and other products and services we provide to you will be deemed acceptance of those changes.
20.2. If you do not accept any changes to our standard terms and conditions made under clause 20.1, you must notify us no later than 30 days following receipt of prior notice of the proposed change. We will then have the option in our discretion of either terminating this Agreement (and in such case you will not be charged an early termination fee), or advising you that the Agreement can continue in its current form.
20.3. If your Special Terms include a fixed term for Broadband services and we increase the price of the services you use, or if we make any change that negatively affects your use of Broadband or associated services (including as described in clause 5.9), you may terminate this Agreement without incurring any early termination fees, provided you give us notice of such terminate within 30 days of our notice of the price increase or other change. If you are not on a fixed term, you will be able to terminate your Agreement with us before any such changes take effect.
20.4. From time to time, we may need to discontinue the services we provide to you. Where we are unable to provide you with, or you do not wish to receive, an alternative service, we will terminate this Agreement after giving at least 30 days' prior notice and, if you are on a fixed term, you will not incur any early termination fees.
21.1. Subject to any Special Terms and any other provisions of this Agreement, we will send any written notice or invoice to you by either:
(a) posting or delivering the notice or invoice to the Property or the last postal address given;
(b) advising you by electronic message (including email, facsimile, text or other means) to the last contact address given; or
(c) by a public notice or on our website (located at mercury.co.nz);
(d) or in person or by telephone.
You acknowledge that written notices include those notices that are stated on, or included with, your invoice.
21.2. Notices are deemed to have been received:
(a) if personally delivered (whether in person or by telephone), on such delivery;
(b) if posted, within two days of posting;
(c) if posting the public notice in a local and/or national newspaper and/or on our website, on the day after the day on which the newspaper is available for purchase and/or our website is updated to include such notification; or
(d) if sent by facsimile or email, on successful transmission or, if sent after 5pm, on the next Business Day after transmission.
22. Information and Privacy
22.1. You agree to provide us with such information as we may require for the purposes of this Agreement. You agree that no reasonable request for information will be refused, including requests for the supply of information or data in a specified manner or to a specified timetable. By entering into this Agreement, you authorise any person to provide us with such information about you as we may require in response to our queries and for any of the purposes provided for in this clause 22.
22.2. We may need to collect, and you hereby consent to us obtaining, your personal information (e.g. name, address, your bank details) so we can supply broadband to you, carry out our responsibilities under this Agreement and otherwise provide products, services or information about products or services (including from third parties) to our Customers. The provision of a driver licence number or other form of identification will also generally be required, unless we notify you otherwise. The information you give us must be correct, complete and up-to-date. If any of the information becomes incorrect or changes, you must let us know as soon as possible. You must promptly cooperate with us and Our Representatives in our efforts to investigate and resolve issues relating to personal information.
22.3. We will hold any personal information in accordance with the provisions of the Privacy Act 2020. The person to whom such information relates may at any time request access to, and if necessary correction of, that information. We will use any personal information collected in accordance with this clause 22, only for the purposes of:
(a) supplying you with broadband and other associated products and services, including any technical support;
(b) operating your account;
(c) improving Customer service and product features;
(d) debt recovery (by either us or an assignee);
(e) providing Credit Information (as defined in the Credit Reporting Privacy Code 2020) about you to credit reporting agencies, participating in their monitoring service and receiving updates on the information they hold about you or on any matters which may impact upon our ongoing relationship with you;
(f) conducting market research and obtain your views on products and services offered by us;
(g) conducting data analysis to identify particular products and services that may be of interest to you; and
(h) providing you with information about other goods and services that we, the Network Provider, and our partners and sponsors or (unless you instruct us otherwise) other persons may from time to time wish to offer you.
22.4. We may verify the information or collect other information about you for the purposes set out in this clause 22, from the sources we consider to be appropriate, including (but not limited to):
(a) other organisations or people such as credit reporting agencies, and the Network Provider;
(b) data collected from mobile applications;
(c) our websites and other websites on which we may, from time to time, interact with you (such as Facebook, Twitter and other social media websites); and
(d) directly from you (including through our agents such as telemarketers).
22.5. We will not disclose any personal information to any person other than:
(a) the Network Provider and Our Representatives for the purposes of supplying broadband to you (including your router, if applicable), carrying out our responsibilities under this Agreement and otherwise providing products or services to our Customers, including technical support;
(b) debt recovery and/or credit reporting agencies and/or Our Representatives and/or our lawyers, and other broadband suppliers in New Zealand and/or their agents;
(c) any person in connection with any dispute organisation or scheme that we are a member of and any person to whom we are required to disclose such information either by law or in compliance with industry codes and standards;
(d) the Ministry of Social Development including Work and Income New Zealand and Family and Community services, social services and/or budgeting agencies where your broadband account is overdue and we reasonably believe that it is in your best interests to do so;
(e) any other person for the purposes set out in this clause 22, including (but not limited to) government agencies, social services and budgeting agencies, persons nominated by you pursuant to clause 2.8 and joint Customers,
and you acknowledge and agree that those other persons may retain and disclose such personal information for so long as is reasonably required for their lawful purposes.
22.6. Our Representatives, including debt recovery and credit reporting agencies, to whom we may disclose your personal information may:
(a) pass and disclose that information to other debt recovery and/or credit reporting agencies and their subscribers;
(b) use that information for the purposes of debt recovery and/or credit reporting;
(c) publish that information on their debt recovery and/or credit reporting databases; and/or
(d) provide that information to third parties for purposes of checking repayment history and/or creditworthiness.
22.7. You acknowledge and agree that we may record our telephone conversations with you to assist us with complying with our obligations under this Agreement and for record keeping and training purposes. If we do so, the recordings will be kept secure and you may request access to them at any time.
23.1. We each agree to maintain the confidentiality of each other’s confidential information, and to use and disclose such information only for the purposes of exercising our rights or performing our obligations under this Agreement or as otherwise required by law.
24.1. Subject to clause 24.5, we may assign or transfer rights or obligations under this Agreement by notice to you. On giving that notice, we will be released from the obligations assigned or transferred, and the assignee or transferee will assume those obligations. We will provide to you the contact details for the assignee or transferee, and notify the date on which the assignment or transfer will take effect.
24.2. We may subcontract or delegate the performance of any of our obligations under this Agreement.
24.3. You may not assign your rights or obligations under this Agreement.
24.4. If we are likely to have a receiver, liquidator, administrator or other similar officer appointed, we will take all reasonable steps to ensure the continuity of broadband services.
24.5. Without affecting our right to terminate this Agreement, if you are in default under this Agreement, including any payment default in, we may at any time refer or transfer any outstanding payments to debt collection agencies without notice to you.
25.1. No waiver of any breach, or failure to enforce any provision of this Agreement, by either party shall affect, limit, or waive that party’s right to enforce and compel strict compliance with the provisions of this Agreement.
25.2. If any provision of this Agreement is held to be invalid, unlawful, or unenforceable, then that provision shall be deemed to be modified only to the extent necessary to remedy that result and the remainder of this Agreement shall remain in force.
25.3. On termination of this Agreement, the following provisions shall remain in effect until their purpose is served:
(a) clause 4 (your obligations regarding broadband supplied);
(b) clause 6 (ownership and responsibility for equipment), to the extent it relates to Equipment not owned by you;
(c) clause 8 (installation and access), to the extent necessary for disconnections and removal of Equipment not owned by you;
(d) clause 10 (price and payment), to the extent it relates to amounts incurred but not paid by you;
(e) clause 15 (liability);
(f) clause 22 (information and privacy); and
(g) clause 23 (confidentiality).
25.4. The provisions of clauses 6, 8 and 15 are for the benefit of, and enforceable by, both us and Our Representatives pursuant to the Contracts and Commercial Law Act 2017.
26.1. In this Agreement except where the context otherwise requires:
‘Agreement’ means these standard terms and conditions, your Pricing Plan, our Dispute Resolution Process, and any Special Terms.
‘Business Day’ means a day, other than a Saturday or Sunday, on which New Zealand registered banks are open for business in Auckland.
‘Customer’ means a person who has applied to have broadband supplied by us and whose application we have accepted or who has otherwise become a person to whom we supply broadband and associated services pursuant to clause 2 of this Agreement.
'Customer Service Representatives' means our Customer Service Representatives available by phoning 0800 10 18 10 for residential Customers or by emailing email@example.com.
'Dispute Resolution Process’ means Mercury's dispute resolution process available on request from our Customer Service Representatives and available on our website (mercury.co.nz).
'Energy' means electricity and/or gas.
‘Equipment’ means any hardware (such as a router), software or other infrastructure used in connection with a broadband service.
‘GST’ means goods and services tax as defined by the Goods and Services Tax Act 1985.
'Improper Use' means using our services outside our Improper Use policy, as set out at clause 9.
‘Network’ means the telecommunications system used to provide the services to you and other Customers.
‘Network Provider’ means local fibre companies, and any third party with whom we have an arrangement to resell services, and their officers, employees, contractors or agents.
‘Our Representatives’ means any person we engage in connection with the products and services we offer to our Customers, and may include Network Providers, third party service providers, our employees or contractors or agents, or the employees, contractors or agents of the Network Provider.
‘Pricing Plan’ means our rates, fees and charges (excluding any pre-payment arrangement) in accordance with the applicable pricing schedule (and Special Terms (if any)) which we determine you are eligible for and is most appropriate for you based on your broadband installation.
‘Property’ means the land and buildings to which we agree with the Customer to supply broadband.
‘Special Terms’ means any special terms that have been agreed between us that add to or modify these standard terms and conditions.
‘We’, ‘us’, ‘our’ means Mercury NZ Limited and includes its officers, employees, contractors, agents, successors, and assignees.
‘You’ and ‘your’ means you, the Customer.
26.2. Words importing persons include corporations and vice versa.
26.3. Reference to any statute or regulations, industry code or standard include a reference to that statute or those regulations or that industry code or standard as amended, modified or replaced and, in the case of a statute, include all orders, ordinances, regulations, and by-laws made under or pursuant to that statute.
26.4. Unless the context otherwise requires, the singular includes the plural and vice versa.
26.5. Reference to persistent breach shall include, by way of example, a breach of this Agreement on three occasions within a 12 month period (regardless of whether each such breach is remedied).