Domestic Terms - Sky
1. DEFINITIONS IN THIS CONTRACT:
1.1 we, us or our means Sky Network Television Limited and its successors and assigns.
1.2 you or your means the person who is the subscriber under this contract.
1.3 Accessories means cabling, connectors, phone jacks or other equipment that is owned by you and/or a third party (other than us), but excluding the Antenna System, Decoder, Smart Card and other Equipment.
1.4 Antenna System means any antennae, cabling and related electronic equipment, other than the Decoder and the Smart Card, needed to receive and distribute the Signal within the HOME but excluding any cabling within wall cavities.
1.5 Decoder means any electronic device or devices authorised by us and associated leads and equipment in the HOME which unscrambles/decodes the Signal.
1.6 Equipment means, unless we state otherwise, all and any equipment provided by us (whether directly or indirectly) and installed at the HOME including (without limit) any Smart Card, Decoder, Antenna System and/or connectivity device.
1.7 HOME means the domestic single unit dwelling where we have consented to the Equipment being located, or relocated to under clause 9.1(a).
1.8 Selected Service means the images on the television screen and the accompanying sound produced by receiving and unscrambling/decoding the Signal for the subscription television services and any other functionality or services provided by the Equipment as chosen by you as agreed with us from time to time which is achieved by using the Equipment at the HOME in conjunction with a standard operational television set, but excluding any pay-per-view programming and any additional products and services as referred to in clause 5. You acknowledge that the Selected Service is a dynamic bundle of services. That bundle of services includes groups of channels and content within channels. That bundle may change over time to respond to consumer demand and content availability (for example, whether we are able to acquire certain content). We therefore reserve the right to make changes to the Selected Service in accordance with clause 8.
1.9 Signal means the scrambled/encoded or other transmissions of television channels and programmes and other services we transmit by whatever means for presentation to people in New Zealand who use the Equipment, or any part of those transmissions.
1.10 Smart Card means any card or cards or similar device we issue you to unscramble/decode the Signal.
2.1 You authorise us to (either directly, via our service providers, or otherwise) collect personal information about you, your household and the way you and your household use our products and services (including but not limited to your name, contact details, details of your Selected Service, any devices you use to access our services, your credit history and payment details, information about what services you use, when, where and how you use them, and how you communicate with us and others about our products and services including via direct feedback, social media, or customer service). This information is collected, held and used by us, and may be disclosed to third parties for the purposes of:
(a) communicating with you and your household (by telephone, post, email, text, in-app message or otherwise) in relation to this contract and to seek your feedback on our services;
(b) responding to claims or complaints made by you or any member of your household;
(c) cooperating with Government, regulatory or industry authorities;
(d) providing you with the Selected Service and any other products or services that you receive from us, including by cooperating and sharing information with our resellers and providers of services that are bundled with ours;
(e) running and administering promotions and competitions;
(f) marketing and promoting our and/or third party products and services to you and your household, including by targeting advertising (eg to ensure that people viewing our advertisements and any third party advertisements on our services are receiving advertisements that may be relevant to them);
(g) allowing you to view information about your account and your use of our products and services;
(h) monitoring (and enforcing) compliance with the law and applicable terms and conditions;
(i) improving and optimising our service offerings, market research, generating and providing statistical analysis and rating information; and
(j) credit and risk assessment and management, identity verification, and debt collection (which includes logging overdue debts and/or liquidated damages you owe us with credit reference agencies).
2.2 You may opt out of receiving commercial electronic messages from us by using the unsubscribe facility we provide in the message. As the database we operate for the Selected Service is separate to the databases we operate for other (stand-alone) services, you agree that in some cases you may need to opt out of our individual databases separately (and in order to stop receiving commercial electronic messages from us altogether, you may need to opt out more than once). Subject to the previous sentence, we will handle opt out requests in accordance with the Unsolicited Electronic Messages Act 2007.
3.1 Where we are providing Equipment that requires installation, then unless we state otherwise, we will as soon as reasonably practicable arrange for an employee or contractor to supply, deliver and install the Equipment at the HOME. We are not obliged, during the installation of the Equipment, to run cabling within wall cavities. You will pay any applicable joining/installation/connection or other specified fee to our employee or contractor, as determined by us and/or our employee or contractor. If you need more than a standard installation (or standard upgrade, as applicable), or if the Equipment we are providing is “self-installation”, then a service fee may apply for the additional services that we need to provide to you (as notified to you before you select that product or service). Set out on our website at www.sky.co.nz in our explanation of a standard installation and standard upgrade.
3.2 You will, at your own expense, secure and maintain all necessary approvals and consents (including any landlord, property owner or body corporate approvals or consents) for the installation of the Equipment at or in the HOME, for any alterations to the HOME needed to install such Equipment and for our right of access under clause 10.3. We will have no responsibility whatsoever in relation to any such approval or consent.
Subject to earlier termination under clause 13 or as permitted by any mandatory provision of law, this contract will continue until terminated by either party giving 28 days’ notice to the other. If this contract is terminated before the end of any minimum term you have agreed to, you may need to pay an early termination fee under clause 14(c). Any minimum term will run from the date that the Selected Service can first be received by you.
5. PAY-PER-VIEW AND ADDITIONAL PRODUCTS/SERVICES
We and/or third parties may from time to time offer to you, via the Equipment or other means, pay-per-view programming or additional products or services which may incur additional fees charged by us or a third party. If you or any member of your household accepts any such offer, or the offer is accepted electronically, for example via your Decoder, personal computer or other device (except where you can satisfy us that the offer was accepted fraudulently by a third party, and that fraud was not caused by your carelessness or negligence), then additional terms and conditions may apply and you will: (a) abide by any such additional terms that apply to; and (b) pay the additional fees to us or to the applicable third party for; the programming, products or services that have been accepted. You must tell us immediately if you believe an unauthorised third party may have access to the Equipment or your account.
6. FEES AND CHARGES
You will pay us:
(a) or our employee or contractor, any joining/installation/connection or other specified fees payable upon first installation of the Equipment at the HOME;
(b) monthly in advance, on the due date for payment, the monthly fees for the Selected Service and for the supply of Skywatch (if supplied). We may vary such monthly fees from time to time on at least 30 days’ written notice to you, but if we increase the fees for a particular service that you have agreed to take for a minimum term (before that minimum term expires), then we will not apply those increased fees to your account without giving you the option to terminate this contract in accordance with clause 4 without incurring any early termination fees;
(c) on demand, GST on all payments under this contract;
(d) on demand, a reconnection or "box swap" fee for services associated with disconnecting and/or reconnecting Equipment: (i) if the Equipment is relocated to an alternate HOME under clause 9.1(a); (ii) if you ask us to reinstate any of our services after we have disabled the Decoder due to non-payment or late payment of any amounts that you owe us; or (iii) if you downgrade the Selected Service to a service with a different Decoder;
(e) on demand, a reasonable fee to cover costs incurred in relation to each dishonoured cheque, or other payment (whether by direct debit, credit card or otherwise);
(f) or the applicable third party, if you (or any person in your household) accepts any offer for any pay-per-view programming or additional products or services as referred to in clause 5, our or the third party’s additional fees as and when notified to you from time to time;
(g) on demand, any liquidated damages payable under clause 14 and a collection fee where we repossess the Equipment under clause 14(b)(ii);
(h) on demand, costs incurred for the collection of any overdue payments, including a fixed late payment fee, as specified on our website (but in no case will such late payment fee be more than a reasonable pre-estimate of the costs we incur in dealing an overdue payment); and
(i) on demand, any additional fees that apply to additional products or services we provide you from time to time (as notified to you before you select that product or service).
7. AVAILABILITY AND FAILURE TO TRANSMIT
7.1 We aim to provide high quality services which are available at all times. However, because we rely on satellite services and other networks and equipment that we do not own or control, we cannot promise that our services will always be available or fault free. Where we suffer faults or outages, we will try to restore the service as quickly as we reasonably can.
7.2 If we are not able to transmit the Selected Service (or any significant part of it) for a continuous period greater than 24 hours we will, if you request, credit you with a reasonable portion of the monthly Selected Service fee that reflects: (a) the extent to which the Selected Service was affected; and (b) the period when the Signal of the Selected Service (or any significant part of it) was not transmitted. This clause does not apply where: (i) you cannot receive the Selected Service due to causes that are particular to you, your HOME or your area (ie where the problem is at the receiving end rather than the transmitting end), such as power or internet failures; or (ii) you do not promptly notify us of an issue with the Selected Service in accordance with clause 11. The placement of individual screen messages does not amount to a failure to transmit and you will remain liable to pay the fee for the Selected Service during the period of any screen messaging.
7.3 In order to use certain features and functionality offered as part of the Selected Service, you may be required to have certain Accessories, and/or an internet connection. You are responsible for arranging such Accessories and/or a suitable internet connection, at your own cost. The delivery of content over the internet by its nature consumes data. You are responsible for any data charges you incur as a result of using the Selected Service.
7.4 The performance of streaming or playing content over the internet will depend on the specifications of your internet connection and we have no responsibility for poor performance of the Selected Service or delay or inability to play any content due to issues with your internet connection.
8. RIGHT TO SUSPEND, CANCEL OR ALTER SERVICE
We may make changes to the Selected Service from time to time, including by:
(a) cancelling or suspending the whole or any part of the Selected Service and/or substituting in place of the Selected Service or any part of it alternative programming, products or services;
(b) altering the packages of subscription television services offered by us;
(c) making changes to the content offered on the Selected Service (eg channels or content on a channel) as our content rights change and with a view to maintaining viewer interest;
(d) altering the mechanism by which we transmit the Signal and/or the format of the Signal; and/or
(e) changing, adding and removing features and functionality of the Decoder, Equipment or any other products or services provided to you.
If we make a major change to the Selected Service that is likely to be materially detrimental to a significant portion of subscribers to the Selected Service (eg if we removed all sports content and replaced it with cooking content, or restricted transmission times to two days per week), we will give as much notice of the change as we reasonably can in the circumstances, and allow you to terminate this contract as set out in clause 4, without incurring any early termination fees.
9. CARE OF EQUIPMENT
9.1 Unless we expressly state otherwise, we own the Equipment at all times and you must not:
(a) remove the Equipment from the HOME or remove or replace any connections to the Equipment without our prior written consent;
(b) sell, lease, dispose of, lend or otherwise part with possession of, or modify in any way, the Equipment;
(c) use the Equipment for any purpose other than viewing the Selected Service, or using any other programming, products or services selected in accordance with clause 5, inside the HOME in accordance with this contract;
(d) deface, obliterate or remove any label or mark which identifies our ownership of the Equipment; or
(e) do any other act which may adversely affect or prejudice our ownership of the Equipment.
9.2 You: (a) must use the Equipment in accordance with our instructions (which we may alter from time to time by notice to you); and (b) are responsible for maintaining the HOME (including the places where the Antenna System is attached to, enters and passes through, the HOME).
9.3 Unless we expressly agree otherwise, you must immediately return the Equipment to us or one of our authorised agents on termination of this contract.
9.4 You will be liable for any loss (including by fire) or theft of, or damage however caused to, the Equipment during the term of this contract and while it remains in your possession (if longer). It is your responsibility to have insurance cover, if you elect to do so, against potential liability under this clause.
9.5 This contract applies to any additional Smart Cards, Decoders or other Equipment that we provide to you to enable the Selected Service, or any of our other services, to be viewed on more than one television set within the HOME.
10. EQUIPMENT/YOUR RESPONSIBILITIES
10.1 The Decoder includes software that is owned by third parties. You have a limited licence to use a copy of that software only within the Decoder and only for the term, and for the purpose of, this contract. You must not copy, reproduce, decompile, create derivative works of, reverse engineer, modify, sublicense, distribute or use for any other purpose either the Decoder or the software in the Decoder or attempt, or authorise or permit any other person, to do so.
10.2 You must not record, copy, play, publish, sell, distribute or otherwise use or retransmit the whole or any part of the Selected Service, any additional programming, products or services referred to in clause 5, or the Signal under any circumstances for any purpose whatsoever other than for your personal, non-commercial use within the HOME as permitted by the Copyright Act 1994. You shall: (a) access and use the Selected Service in accordance with this contract, any additional agreed terms that may apply, and our instructions and requirements (which we may alter from time to time); (b) not reverse engineer, break, decode or otherwise interfere with any encryption, security, copy protection or other mechanisms used by us in relation to the Decoder, the Signal or our other products or services; (c) not make any attempt to receive or access without payment or our permission, any of our other products and services; and (d) not attempt, or authorise or permit any other person, to do so.
10.3 If we request, you must provide us with reasonable access to the HOME, or any other location that you own or lease, in order to maintain, replace or repossess any Equipment or where we have reasonable grounds to believe that you are not complying with your obligations under this contract.
10.4 We may at any time in our absolute discretion require that you exchange any Equipment (including any Smart Card) for any new equipment (including a new Smart Card) that we provide or specify. We may also download new software to, and retrieve information from, a Decoder at any time without notice to you.
10.5 You will ensure that any PIN numbers we allocate you or you select are kept secret and are only disclosed to authorised members of your household. You are responsible for any charges incurred using the Equipment and/or your PIN. If you or any person in your household uses your PIN to access or unblock any service then you are fully responsible for who views that service and any payments associated with the provision of that service.
11. DEFECTIVE DECODER
Subject to clause 9.4, where we provide the Decoder to you, we will be responsible for maintaining the Decoder in good working order and condition. You must advise us as soon as the Decoder is damaged or is not in full working order or there is any other issue with the Selected Service.
12.1 You agree, to the maximum extent permitted by law: (a) not to bring any claim (including a claim in negligence) whatsoever against any third party service or infrastructure provider used by us in providing products and services to you under this contract (including any satellite or telecommunications provider that we use, their related companies and the personnel and officers of such providers and their related companies) (“Service Providers”) for any loss or damage suffered by you or persons in your household in connection with, or related to, this contract; (b) that all liability (including liability in negligence) of Service Providers is excluded; and (c) that this clause 12.1 confers a benefit on Service Providers which may be relied on and enforced by them under the Contracts (Privity) Act 1982.
12.2 Nothing in this contract affects your rights (and our obligations) under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986. However, apart from any rights you have under applicable law that cannot be legally excluded:
(a) we do not make any guarantees or promises about the Equipment or the Selected Service; and
(b) If you are liable to us or we are liable to you in connection with this contract for any reason, neither of us will have to pay the other more than: (a) $5,000 for any event or series of related events; or (b) $10,000 for all events in a 12-month period. This liability cap will not apply to: (i) either of our fraud, wilful breach or wilful damage; or (ii) your breach of intellectual property rights or criminal activity. We are not liable for any loss that is caused by you or by your failure to take reasonable steps to avoid or minimise your loss.
13. TERMINATION AND SUSPENSION
We may immediately terminate, or temporarily suspend this contract (by disabling the Decoder from unscrambling/decoding the Signal) or the provision of all or any part of the Selected Service if: (a) it is reasonably necessary to do so for operational or technical reasons (including but not limited to maintenance or upgrades of the Selected Service); (b) we believe on reasonable grounds that you are using the Selected Service in breach of this contract or applicable laws, or (c) you fail to pay any amount you owe us under this contract on the due date. Any such termination or suspension will be without prejudice to our other rights and remedies. If we suspend your account under subclause (b) or (c), and you rectify your breach or non-payment, then we may (at our discretion) agree to reactivate this contract subject to conditions (including requiring you to pay a bond or alter the package(s) you subscribe to).
14. EVENTS AFTER TERMINATION
On termination of this contract:
(a) we are entitled to immediately disable the Decoder from unscrambling/decoding the Signal;
(b) where you fail to return the Equipment in accordance with clause 9.3 we may, at our option: (i) require you to pay to us on demand, as liquidated damages for the breach of clause 9.3, an amount equal to the cost of replacing the Decoder, as determined by us; and/or (ii) on reasonable notice and when you or other occupants are at the HOME, visit the HOME to collect the Equipment;
(c) if that termination is before the expiration of the minimum term referred to in clause 4, then you agree to pay us on demand, as liquidated damages, an early termination fee as determined by the Early Termination Fee Calculation set out on our website at www.sky.co.nz (which fee is based on the loss we are likely to suffer as a result of your early termination, and varies according to factors including the number of months between the date of termination and the end of the minimum term, the type of Equipment you had installed and the monthly fees payable for the Sky Starter Service), except that you will not have to pay an early termination fee where we suspend or terminate this contract under clause 4 or 13(a), or where you terminate this contract under clause 6(b), 8 or 16.4;
(d) you must immediately pay us all amounts you owe us including any liquidated damages payable under this clause 14; and
(e) clauses 2, 6, 9, 10, 12 and 14 of this contract will survive for our benefit.
15. FORCE MAJEURE
If we are prevented from carrying out any of our obligations under this contract by reason of any act of God, inclement weather, floods, earthquakes, fires, volcanic eruptions, acts of government, civil unrest, strike, sanctions, failure or interruption of satellite services, the internet, equipment, systems or facilities, or (without limitation) any other circumstance beyond our reasonable control, we will try to advise you of the existence of the circumstances and their expected duration. The performance of this contract will, to the extent that it is made impossible or impractical by such circumstances, be suspended until such circumstances cease.
16.1 Any notice required to be given under this contract is deemed to be properly given if left at, or sent by prepaid letter, email or facsimile to the last known address of the recipient.
16.2 We may at any time assign this contract to any person, company or business entity, so long as such assignment does not materially affect your rights under this contract. You may not assign or otherwise transfer your rights or obligations under this contract without our express consent.
16.3 If any term of this contract is held to be invalid, unenforceable or illegal, then the remaining terms will continue in full force and effect.
16.4 We will have the right to change this contract at any time by notice to you or by putting a notice on our website, provided that if we change this contract in a way that materially disadvantages a significant portion of subscribers to the Selected Service, then we will allow you to terminate this contract without incurring any early termination fees.