This Agreement was last revised on September 27, 2018.
PLEASE READ THIS ENTIRE SUBSCRIBER AGREEMENT CAREFULLY, AS IT CONSTITUTES A BINDING CONTRACT BETWEEN YOU AND GRAVITY INTERNET LTD (“GRAVITY”). BY APPLYING FOR OR CREATING AN ACCOUNT WITH GRAVITY, OR BY SUBSCRIBING TO OUR SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
This Subscriber Agreement is organised into seven “Sections”:
Section I – Key Provisions;
Section II – The Service, Your Subscription, This Subscriber Agreement, Dispute Resolution, and Binding Arbitration;
Section III – Payment;
Section IV – Permitted Use and Restrictions on Use;
Section V – Grant of Important Rights by You to Us, and Important Disclaimers, Acknowledgments, and Obligations;
Section VI – General (Note: Although located at the end of this Subscriber Agreement, these terms are important).
This Subscriber Agreement references other policies and agreements that also form part of your wider agreement with us:
- Acceptable Use Policy
- Fair Access Policy
- Installation, Re-installation & Maintenance Policy
SECTION I – KEY PROVISIONS
1.1 SPEED CLAIMS AND DISCLAIMERS.
Gravity’s satellite service is available only within New Zealand. Stated speeds and uninterrupted use of service are not guaranteed. Actual speeds will likely be lower than the maximum speeds during peak hours. In addition, when connected to the Service using Wi-Fi, the user’s experience will vary based on the proximity to the Wi-Fi source and the strength of the signal, and its usage is subject to the Fair Access Policy.
The listed speeds are only available in the footprint of the JCSAT-3A Satellite. The Gravity satellite internet service with speeds of up to 10 mbps down and 1 mbps up is available only within New Zealand. Specific locations within New Zealand, depending on your location may not be able to receive the full capability of the speeds stated.
You specifically agree that any Equipment provided to you may be new or refurbished as new. Any refurbished Equipment will have the same warranty as new Equipment.
If you have paid the full standard installation rate on an open term agreement, as listed on our website at the time of your installation, the Outdoor Unit (LNB, BUC and antenna) to be installed at your premises will become your property upon payment of the installation invoice. If you committed to a fixed term agreement, the Outdoor Unit remains the unconditional property of Gravity, even after the conclusion of your fixed term. The Indoor Unit (satellite modem) and Power Supply will at all time remain the property of Gravity.
Any reinstallation, return, or change in the location of the Equipment shall be performed by us at our service rates in effect at the time of such service. You are responsible for preventing the loss or destruction of all Equipment and it may be in your best interest to have insurance coverage for the Equipment. Any replacement or maintenance required on the Equipment will be performed by us at our service rates in effect at the time of such required service or replacement. Please refer to our Installation, Re-Installation & Maintenance policy.
1.3 SERVICE COMMITMENT AND TERMINATION FEES.
Gravity satellite internet packages (“Service Plan”) are provided on either a fixed term basis or on an open term basis.
If you have subscribed to a fixed term Service Plan, you agree to receive the Services for at least the length of that fixed term. After expiry of the fixed term, we will provide the Services to you on a month by month open term basis until terminated in accordance with this Agreement. Your fixed term Service Plan will start from the date your Service is connected or otherwise made available to you, unless specified otherwise in the Service Plan’s details. You agree to pay an early termination charge (the “Service Termination Fee”) if:
(1) you terminate the Services (except where we are in material breach of this Agreement and we do not remedy that breach within 14 days of you telling us); or
(2) we terminate the Agreement where you are in material breach of this Agreement and you do not remedy that breach within 14 days of us telling you,
before the end of any fixed term you have agreed with us.
The Service Termination Fee will be a sum of the following: (a) the cost components of the installation you received that we cannot recover (i.e. labour, travel, insurance), valued at $600.00, pro-rated for the number of months remaining in your fixed term Service Plan; and (b) the following costs (being the reasonable costs that have been incurred by us in relation to the provision of the Services to you, which cannot be avoided or mitigated as a result of termination of the Agreement or Services):
- when terminated between 0 to 6 months from start of fixed term, an amount not exceeding $1,000;
- when terminated between 7 to 12 months from start of fixed term, an amount not exceeding $750;
- when terminated between 13 to 18 months from start of fixed term, an amount not exceeding $500;
- when terminated between 19 months and end of fixed term, an amount not exceeding $250.
If you do not subscribe to a fixed term Service Plan, we will provide the Services to you on a month by month basis as part of an open term Service Plan until the Service is cancelled in accordance with this Agreement.
If you have subscribed to any Service Plan and you exercise your right to terminate your Service, or we terminate your Service in accordance with this Agreement, your credit or debit card will be charged the fees described below:
- Any current invoices
- All outstanding invoices
- Unreturned Equipment Fee
- If applicable, the Service Termination Fee
Upon termination, you will be required to return the Indoor Unit and Power Supply to Gravity via courier, at your cost. Unless the Outdoor Unit is owned by you, you will also be required to return the Outdoor Unit to our designated location, at your cost. Failure to return the required Equipment within thirty (30) days will result in an Unreturned Equipment Fee being incurred and charged to your account, for which you will be liable. The Unreturned Equipment Fee will be no greater than the full replacement cost of the Unreturned Equipment, including shipping, taxes and duties.
Gravity Service Plans are invoiced monthly and in advance. If you terminate your Service Plan at any time during the monthly billed period, you will not receive a partial refund.
If you opted in to accept the free email service provided by Gravity’s third-party email provider, upon termination of your Gravity account, Gravity will advise the third-party provider that Gravity will no longer be responsible nor liable for any fees associated with the email service. You may wish to continue the email service at your cost and discretion.
If you and Gravity have entered into a side agreement whereby the Equipment remains the property of Gravity, you will be required to de-install and return all Equipment at your cost, within thirty (30) days of terminating your Service Plan. Equipment must be returned in working order. Should you fail to return the Equipment, or the Equipment is found to be in non-working order, Gravity reserves the right to charge you for full replacement cost.
1.4 METHOD OF PAYMENT.
Except where additional methods of payment are specifically required or permitted under applicable law or regulation, or where Gravity explicitly and in advance permits another method of payment, you agree that you will provide a major credit or debit card (i.e., MasterCard, Visa) that Gravity may charge for all Service fees or other amounts payable under this Agreement (including any applicable Unreturned Equipment Fee and any Service Termination Fee). You hereby authorise automatic credit or debit card billing by Gravity for all such charges. You further agree that the charges described above will be billed to the credit or debit card that you have provided when you applied for the Service.
Where Gravity permits the payment of fees using the Farmlands Card and where you provide your Farmlands account details, you hereby authorise Gravity to automatically charge your Farmlands account for all applicable charges and outstanding invoices. In the event Gravity ceases to accept the Farmlands Card as a method of payment, Gravity will provide thirty (30) days written notice advising you of the pending removal of the payment method. It will become your responsibility to continue to pay for all Service fees using an alternative payment method accepted by Gravity (i.e., credit card, direct credit, etc).
SECTION II – THE SERVICE, YOUR SUBSCRIBERSHIP, THIS SUBSCRIBER AGREEMENT, DISPUTE RESOLUTION, AND BINDING ARBITRATION
2 THE SERVICE.
Gravity provides a two-way, satellite-based Internet access solution that carries information between the Internet and your personal computer, tablet, or other internet capable device (the “Service”).
2.1 COMPOSITION OF THE TERMS OF SERVICE.
3 MODIFICATIONS; RIGHTS OF CANCELLATION OR SUSPENSION
3.1 MODIFICATION OF THIS SUBSCRIBER AGREEMENT; NOTICES.
Gravity may revise this Subscriber Agreement (the “Agreement”) at any time by providing notice to you via the secure Gravity Customer Portal or by email. In the event you do not agree to such revisions, you may terminate your subscription (as provided herein) and stop using the Service before the later of the effective date of such modifications or thirty (30) days after such notice is delivered, in which event you will not be bound by such modifications. Otherwise, except as provided in Section 5.4 below, your continued use of the Service after such time constitutes your full acceptance of such modifications. Unless we provide notice to you of any revision to this Subscriber Agreement, and you accept or have been deemed to have accepted any such revision, this version of the Subscriber Agreement will govern the terms of your Gravity subscription until the Service is cancelled or terminated.
3.2 MODIFICATION OF THE SERVICE.
Gravity may discontinue, add to, or revise any or all aspects of the Service in Gravity’s sole discretion, including without limitation access to support services, publications, and any other products or services ancillary to the Service. In the event that Gravity makes any changes to the Service or its availability which will not have a material adverse effect on you, or if the change is required for legal, regulatory or technical reasons, or for security reasons including to prevent fraud, Gravity may, but is not required to, notify you. In the event that the change to the Service or its availability will have a material adverse effect on you, Gravity will notify you of such change, and you may terminate your subscription (as provided herein) and stop using the Service before the later of the effective date of such change or thirty (30) days after such notice is delivered, in which event you will not be bound by such changes.
3.3 PRICING REVISIONS.
Gravity may revise pricing for any Service Plans at any time by providing notice of any price change to you via the secure Gravity Customer Portal or by email. Gravity will provide at least thirty (30) days notice of any such change to you. In the event you do not agree to such price revisions, you may terminate your subscription (as provided herein) and stop using the Service before the later of the effective date of the price change or thirty (30) days after such notice is delivered, in which event you will not be bound by such changes. Otherwise, except as provided in Section 5.4 below, your continued use of the Service after such time constitutes your full acceptance of such pricing revisions.
Notwithstanding the above, your rights and our obligations under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 will always prevail.
3.4 TERMINATION BY SUBSCRIBER.
In the event Gravity modifies this Agreement, the Services (where such modification has a material adverse effect on your use of the Services), or related pricing or billing terms, you may terminate your Service Plan and this Agreement by giving notice of termination to Gravity within 30 days of your receipt of notice of such modification. If the modification has a material adverse effect on your use of the Services, any such termination will not be subject to a Service Termination Fee (but will be subject to any applicable Unreturned Equipment Fee).
Subject to your payment of any applicable charges or outstanding accounts herein described, you may also terminate your Service Plan and this Agreement at any other time and for any reason with a minimum thirty (30) days’ written notice to Gravity. You must terminate this Agreement in accordance with the terms and conditions specified herein; failure to do so may delay or prevent us from knowing that termination was intended. Failure to terminate in accordance with this Agreement may result in your continued liability for all fees and charges associated with your Service Plan until such time as the Agreement has been properly terminated or Gravity has acknowledged such termination in writing, within a reasonable time.
(1) you exercise your right to terminate the Services (except where we are in material breach of this Agreement and we do not remedy that breach within 14 days of you telling us); or
(2) we terminate the Agreement where you are in material breach of this Agreement and you do not remedy that breach within 14 days of us telling you,
during a fixed term Service Plan before the end of the fixed period, a Service Termination Fee may apply subject to this Agreement.
3.5 TERMINATION OR SUSPENSION BY GRAVITY.
Gravity reserves the right to terminate, restrict, or suspend your Service and this Agreement at any time with notice, in whole or in part, if:
- (a) the Service is temporarily or permanently unavailable for any reason;
- (b) the health and safety of any person or our network is at risk;
- (c) for commercial reasons we can’t provide the Service;
- (d) you fail to pay any fees payable on time;
- (e) you fail to allow us access to your premises to perform our obligations under the Agreement;
- (f) you are otherwise in material breach of this Agreement and the breach cannot be remedied, or you do not remedy it within 14 days of us telling you.
If your Service and this Agreement is terminated, restricted, or suspended for any reason set out in (a) to (c) above, during a fixed term Service Plan before the end of the fixed period, a Service Termination Fee will not apply.
If your Service and this Agreement is terminated, restricted, or suspended for any other reason set out above, during a fixed term Service Plan before the end of the fixed period, a Service Termination Fee may be payable subject to this Agreement, together with any applicable Unreturned Equipment Fee and any current and outstanding invoices.
3.6 CONTINUATION OF OBLIGATIONS.
Notwithstanding any cancellation or termination of this Agreement or your account, or any suspension or termination of access to or use of the Service, you will remain responsible for any obligations accrued up to the date of such action, including payment of any charges that may be due as a result of or in connection with such action(s). Furthermore, any ongoing fees related to email services provided to you by Gravity’s third-party email provider will become your responsibility. If you wish to terminate the email services, this will also be your responsibility to inform the third-party email provider that you wish to terminate the email services.
4 WHO MAY USE THE SERVICE? – RESPONSIBILITY AND SUPERVISION.
4.1 AGE AND ACCOUNT SETUP.
You agree that you are at least 18 years of age and have the right and ability to enter into this Agreement. You agree that you are responsible for installing, establishing, and setting up, and for verifying and maintaining, the account, options, settings, and other parameters under which the Service is used, including (without limitation) all related passwords and user identification information. These account functions may be performed only by a person at least 18 years of age, without exception.
4.2 MULTIPLE USE OF ACCOUNT.
Multiple members of your household may share a single account, if authorised by you to use the account. In addition, up to five (5) members of the same household may access the Service at any given time through the same account.
4.3 INSTALLATION OF EQUIPMENT.
You acknowledge and agree that Gravity or its designated service provider (i.e., installation contractor) may be required to access your premises and/or computer system in order to install and maintain the components necessary for you to access the Service, including the Outdoor Unit, the Indoor Unit and the Power Supply, (the “Equipment”). This may include opening your computer to install, repair, or replace equipment or to install software on your computer at your location. By accepting this Agreement and scheduling a service or installation visit, you hereby authorise Gravity or its service provider to access your computer for the purpose of installing, repairing, or replacing Equipment for the purpose of facilitating your access to the Service. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER GRAVITY, ITS DIRECTORS, EMPLOYEES NOR ITS SERVICE PROVIDER, SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY LOSSES RESULTING FROM INSTALLATION, REPAIR, OR OTHER SERVICES, INCLUDING WITHOUT LIMITATION DAMAGE TO YOUR PREMISES OR COMPUTER, OR LOSS OF SOFTWARE, DATA, OR OTHER INFORMATION FROM YOUR COMPUTER. Gravity may check the health and status of your computer to ensure that your configuration is optimised for use with the Service.
4.4 SUBSCRIBER RESPONSIBILITY.
You shall be responsible for all access to and use of the Service through your account or password(s) and for any fees incurred for goods or services purchased thereon, or any other expenses incurred as a result of any use of your account. You promise to pay the amounts billed for any such goods or services, along with any related fees, taxes, and charges. Use of your account is limited to family members or temporary visitors residing at your permanent residence, and/or employees or temporary visitors to your business premises. You acknowledge that the Service is intended for households, or in some cases small businesses, or as a backup internet connection. You acknowledge that you are aware that areas accessible on or through the Service may contain material that is unsuitable for minors (persons under 18 years of age). You agree to supervise usage of the Service by minors who use the Service through your account. You hereby ratify and confirm any obligations a minor using your account enters into or assumes and any promises or permissions such minor makes or gives. You agree to: (1) provide us with true, accurate, current, and complete information about yourself; and (2) promptly update this information to keep it true, accurate, current and complete.
5 DISPUTE RESOLUTION AND BINDING ARBITRATION.
5.1 DISPUTE RESOLUTION AND BINDING ARBITRATION.
Notice of Dispute. Prior to filing any claim against the other, you and Gravity agree that you will first send the other a written Notice of Dispute. Any Notice of Dispute to Gravity should be sent by courier to: Gravity Internet Ltd, Level 7, 5-7 Kingdon Street, Newmarket, Auckland 1023, New Zealand (the “Notice Address”). Any Notice of Dispute to you will be sent to your billing address, which is your responsibility to keep up to date. The Notice of Dispute should describe the nature of the problem or dispute and set forth the specific relief sought, including the amount of any monetary damages sought. If the party receiving the Notice of Dispute agrees within 30 days to provide the specific relief requested in the Notice of Dispute, no formal claim may be filed, or arbitration commenced, with respect to the subject of the Notice of Dispute. If we are unable to reach an agreement to resolve the dispute within 30 days after the Notice of Dispute is delivered, either you or Gravity may commence an arbitration.
Binding Arbitration. Except as otherwise provided herein, if any dispute arising out of or relating to this Agreement is not resolved in accordance with the above, either you or Gravity may, by giving written notice to the other, require the dispute to be determined by the arbitration of a single arbitrator. The arbitrator will be appointed by both of us or, failing agreement within five (5) days of the notice requiring arbitration, by the President of the New Zealand Law Society on application by either of us. The arbitration will be conducted as soon as possible and in accordance with the provisions of the Arbitration Act 1996.
Any issue as to the arbitrability of any dispute shall be decided by the arbitrator, except that any question as to the applicability or enforceability of the prohibition on class proceedings in Section 5.2 below shall only be decided by a court.
This agreement to arbitrate shall survive termination of this Subscriber Agreement and will apply to any claims brought or disputes arising before or after termination of this Subscriber Agreement.
This Dispute Resolution and Binding Arbitration provision (all subparts of this Section 5) shall, to the extent permitted by New Zealand law, apply to all pending and future claims, disputes, arbitrations, and litigation, including those involving former subscribers whose agreements terminated prior to the adoption of this provision.
5.2 PROHIBITION ON CLASS ARBITRATION.
OU AND GRAVITY AGREE THAT NO DISPUTE OR CLAIM MAY BE BROUGHT OR MAINTAINED AS PART OF A CLASS ARBITRATION OR OTHER REPRESENTATIVE ARBITRATION, REGARDLESS OF WHETHER THE APPLICABLE ARBITRATION RULES WOULD OTHERWISE PERMIT CLASS OR REPRESENTATIVE PROCEEDINGS. ACCORDINGLY, YOU AND GRAVITY MAY ONLY PURSUE A CLAIM AGAINST THE OTHER IN AN INDIVIDUAL CAPACITY, AND MAY NOT PURSUE A CLAIM AGAINST THE OTHER ON BEHALF OF ANY OTHER PERSON, AND NO OTHER PERSON MAY PURSUE A CLAIM ON BEHALF OF YOU OR GRAVITY AGAINST THE OTHER. AN ARBITRATOR MAY ENTER AN AWARD ONLY IN FAVOUR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
5.3 LIMITATIONS ON ARBITRATION PROVISION.
Notwithstanding Section 5.1 above, but subject to Section 5.2 above, you or Gravity may bring an individual action against the other in court, and arbitration shall not be required, as to any dispute relating to the validity or enforcement of either party’s patents, copyrights, or other intellectual property.
5.4 RIGHT TO OPT OUT; FUTURE CHANGES.
If Gravity makes any future change to this Dispute Resolution and Binding Arbitration provision, you may reject any such change by sending Gravity written notice within 30 days of receiving notice of the change. In that case, any dispute arising between you and Gravity will be governed by the Dispute Resolution and Binding Arbitration provision, or any equivalent provision, in effect as of the date you received notice of the change.
5.5 EXCEPTION TO SEVERABILITY.
Notwithstanding Section 21.1 below, if for any reason the prohibition on class proceedings set forth in Section 5.2 above is not enforced as written with respect to any dispute, then Section 5.1 above as it relates to Binding Arbitration also will not apply to that dispute.
SECTION III – PAYMENT
6.1 FEES, TAXES AND OTHER CHARGES.
You agree to pay, in advance, and in accordance with the provisions of the billing option you selected, any registration, activation, and/or monthly fees, minimum charges, and other amounts charged to or incurred by you, or by users of your account, at the rates in effect for the billing period in which those amounts are charged or incurred. You agree to pay all applicable taxes and assessments related to your use of the Service or the use of the Service by users of your account. Information on charges and surcharges (if any) that are to be paid to us and are incurred by you or by users of your account will be made available to you on the secure Customer Portal, and you agree that this is sufficient notice for all purposes as to charges incurred and paid or to be paid to us. Gravity reserves the right to increase fees, surcharges, or monthly subscription fees, or to institute new fees at any time upon thirty (30) days’ prior notice. You understand and acknowledge that you may not receive a bill in the mail for your Service. Additional terms relating to pricing, billing and payment are set forth and available on the Website. You agree to pay an Unreturned Equipment Fee and/or Service Termination Fee should it be applicable and as referred to in other sections of this Subscriber Agreement.
Unless otherwise specified, all fees and charges include GST of 15%, and all amounts stated are in New Zealand dollars.
YOU MUST PROVIDE CURRENT, COMPLETE, AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION IN ORDER TO KEEP YOUR ACCOUNT CURRENT, COMPLETE, AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE). CHANGES TO SUCH INFORMATION CAN BE MADE AT https://secure.getgravity.nz . IF YOU FAIL TO PROVIDE US WITH ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT GRAVITY MAY CONTINUE CHARGING YOU FOR ANY SERVICE PROVIDED UNDER YOUR ACCOUNT, AND THAT YOU WILL BE RESPONSIBLE FOR ANY LATE FEES ASSOCIATED WITH GRAVITY’S INABILITY TO OBTAIN PAYMENT BASED ON BILLING INFORMATION YOU HAVE PROVIDED (TO THE EXTENT NOT DUE TO OUR ERROR OR NEGLIGENCE).
You agree that all charges are considered valid unless disputed in writing within thirty (30) days after the date you receive your credit or charge card bill. You agree that Gravity will not be responsible for any expenses that you may incur resulting from overdrawing your bank account or exceeding your credit limit as a result of an automatic charge made under this Agreement.
In the event that you used a debit card to activate your subscription, you authorise Gravity to initiate debits for payment of the monthly charge for the Service. Gravity, pursuant to this authorisation, will debit the monthly service charge for the Service from your account each month. In addition, Gravity will deduct from your account any Service Termination Fee (if applicable) arising from termination of your Service. Gravity will not be responsible for any overdraft or other third-party fees or penalties resulting from Gravity debiting from your account any amount authorised by this Agreement or any other agreement between you and Gravity. Gravity will charge a return fee for each debit that is declined by your bank. The return fee will vary from bank to bank and will be the maximum amount allowed by any applicable laws.
You acknowledge that the recurring debit authorised hereunder will purchase the Service and that Gravity will continue to debit funds from your account until you revoke this authorisation by going online to https://secure.getgravity.nz to change the payment method or by couriering a written request to Gravity Internet Ltd, Level 7, 5-7 Kingdon St, Newmarket, Auckland 1023, New Zealand.
Gravity will make available to you a statement for each billing cycle showing payments, credit purchases, and other charges. Payment of the outstanding balance is due in full each month, and may be billed in advance or pre-charged as set forth above. If your payment is not received by us on or before the invoice due date, you may be charged a late payment fee of $15.00 per overdue invoice. Gravity may, at its sole discretion, waive late fees in certain circumstances or for compassionate reasons. Gravity may, but is not required to, accept partial payments from you. If partial payments are made, they will be applied to statements starting with the oldest outstanding statement. In the case of late payment or non-payment, you understand and agree that Gravity may report such late payment or non-payment to the appropriate credit reporting agencies. If Gravity chooses to use any collection agency or law firm to collect money that you owe us or to assert any other right which we may have against you, you agree to pay the reasonable costs of collection or other action including, but not limited to, the costs of a collection agency, reasonable legal fees, and court costs, as provided by New Zealand law.
6.3 COMMENCEMENT AND DURATION OF SUBSCRIBERSHIP FEES.
You acknowledge that a monthly subscription fee will apply for each and every month (or portion thereof) that you subscribe to the Service. Once you subscribe, your account and payment obligations will continue until terminated as set forth herein.
SECTION IV – PERMITTED USE AND RESTRICTIONS ON USE
7 SOFTWARE LICENSE.
To facilitate your use of the Service, Gravity may provide you with software and written materials including documentation (the “Software”). Subject to the terms of this Agreement, Gravity grants you a limited personal, non-exclusive, non-sublicenseable and nontransferable license to use and display the Software on any machine(s) on which you are the primary user or which you authorise for use. Unauthorised copying of any portion of the Software, including software that has been modified, updated, or merged or included with the Software, as well as the documentation provided, is expressly forbidden. You may not sublicense, assign or transfer this license or the Software except as expressly permitted by Gravity. Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations under this license is void. You agree that you shall not, nor shall you permit others, to copy, duplicate, reverse engineer, decompile, or create derivative works from the Software, in whole or in part, including any written materials provided in conjunction with the Software. Gravity will occasionally provide automatic software and technology upgrades to improve the Service, such as virus and spam screening technologies, although these upgrades may not be consistent across all platforms and devices. You agree to accept and to take no action to interfere with such automatic upgrades, scanning, and related services.
8 SPECIFIC RESTRICTIONS ON USE OF THE SERVICE.
8.1 PROHIBITED CONDUCT.
You agree to comply with the terms of the Gravity Acceptable Use Policy, available on the Website. Violations of the Acceptable Use Policy may result in suspension or termination of Service.
8.2 FAIR ACCESS POLICY.
To ensure fair Internet access for all Gravity subscribers, Gravity maintains a Fair Access Policy. This policy establishes an equitable balance in Internet access for all Gravity subscribers. Gravity may dynamically or manually manage network allocation for each Service Plan to ensure such fair and equitable balance for all Gravity subscribers. The Fair Access Policy can be viewed on the Website.
8.3 COMPLIANCE WITH LAWS.
You agree to comply with all applicable New Zealand laws, rules, and regulations in connection with the Service, your use of the Service, and this Agreement.
8.4 NO RESALE.
You agree not to reproduce, resell, transfer, trade, sublicense, or exploit for any commercial purposes your subscription to the Service, any portion thereof, or any capabilities or applications enabled by the Service.
8.5 ASSUMPTION OF RISK.
Gravity may, but shall not have any obligation to, screen content transmitted through and stored on the Service for objectionable material and material that violates any law or regulation, the terms of this Agreement, or the Acceptable Use Policy (collectively, “Objectionable Content”). Gravity may, but shall not have any obligation to, remove from the Service, or refuse to store or transmit, any Objectionable Content. You agree to bear all risks associated with any and all content you use, transmit, or receive on or through the Service, and agree that you will not rely on any such content.
Without limiting the foregoing, Gravity advises you of its obligations under the Telecommunications Interception Capability & Security Act 2013. For more information regarding the act, please refer to: legislation.govt.nz
SECTION V – GRANT OF IMPORTANT RIGHTS BY YOU TO US, AND IMPORTANT DISCLAIMERS, ACKNOWLEDGMENTS, AND OBLIGATIONS
9 COPYRIGHT AND LICENSES.
Gravity reserves all copyrights and other rights in and to any content available through the Service which is identified as, claimed by us as, or known by you to be, proprietary to Gravity or its licensors (collectively, “Proprietary Content”). The Proprietary Content is protected under New Zealand and international copyright laws, including as a collective work. All copying, modification, distribution, publication, or other use by you, or by any user of your account, of any such content or other works is prohibited, except as expressly permitted by Gravity.
10 NO ENDORSEMENT.
Gravity does not endorse or in any way vouch for the accuracy, completeness, truthfulness, or reliability of any service, opinion, advice, communication, information, or other content on or made available through the Service. Such content does not necessarily constitute or reflect the views or approval of Gravity or any of its subsidiaries or affiliates.
YOU ACKNOWLEDGE THAT INTERNET SITES, AND USE OF THE INTERNET, MIGHT CONSIST OF, INCLUDE AND/OR PROVIDE ACCESS TO IMAGES, SOUND, MESSAGES, TEXT, SERVICES, OR OTHER CONTENT AND MATERIAL THAT MAY BE UNSUITABLE FOR MINORS AND THAT MAY BE OBJECTIONABLE TO MANY ADULTS. YOU ACKNOWLEDGE THAT GRAVITY IS NOT RESPONSIBLE FOR ANY SUCH CONTENT OR MATERIAL AND THAT ACCESS TO SUCH CONTENT AND MATERIAL THROUGH THE SERVICE IS AT YOUR SOLE RISK.
12 LIMITED WARRANTY ON EQUIPMENT.
Gravity warrants to the original buyer that under normal use and wear the Equipment used to access the Service, which includes the Indoor Unit (satellite modem), Power Supply, and Outdoor Unit (Antenna, LNB & BUC), will be free from defects in material and workmanship for a standard limited warranty term of 12 months from the date of activation. Any Equipment replaced or repaired under this warranty will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. This warranty is not transferable. If under normal use and wear, the Equipment becomes defective in materials or workmanship during the warranty period set forth above, Gravity shall at its option and expense, perform one of the following:
- We will repair or replace the defective Equipment within thirty (30) days of the date the defective Equipment was returned to Gravity’ designated address at your expense, to cause it to comply with the terms of this Limited Warranty. Reconditioned replacement components, parts, units or materials may be used if the Equipment is repaired or replaced.
- If service to the Outdoor Unit (satellite antenna and transmitter) is required, Gravity will, at its expense, repair or replace it pursuant to the limited warranty for the first six months after installation. From six months to the end of your limited warranty period, Gravity will cover the cost of the replacement equipment, but the cost of the onsite service technician visit, if necessary, will be paid by you. You may request a price estimate prior to the work, based on the type of the replacement. If your satellite antenna needs to be re-pointed after the first 6 months of service, a standard onsite visit fee will be charged to you. Reconditioned replacement components, parts, units, or materials may be used if the Equipment is repaired or replaced.
- We may upgrade the Equipment to a later-generation product that performs the same function and complies with the terms of this Limited Warranty.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THESE ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR DEFECTS DURING THE WARRANTY PERIOD IN ANY EQUIPMENT COVERED BY THE LIMITED WARRANTY. To request Limited Warranty service you must contact Gravity Customer Support.
This Limited Warranty will be void in its entirety if the Equipment is serviced by anyone other than Gravity or a Gravity-Authorised Service Agent. Gravity neither assumes nor authorises any Authorised Service Agent or any other person or entity to assume any other obligation or liability beyond that which is provided for in this Limited Warranty.
This Limited Warranty does not cover damage or affected operation of the above-referenced Equipment resulting from:
- Non-professional installation; re-pointing of the Antenna; removal, repair, or disassembly of Equipment by anyone other than a Gravity-Authorised Service Agent.
- Failure to follow instructions.
- Fire, flood, wind, lightning, earthquake, or other acts of God.
- Spills of food or liquids.
- Problems with electrical power.
- Misuse, abuse, accident, vandalism, alteration, or neglect.
- Use in combination with other external devices not manufactured or provided by Gravity.
This Limited Warranty does not cover items in the following categories:
- Software provided by any party other than Gravity.
- External devices not manufactured or provided by Gravity.
- Any payments for labour or service to representatives or service agents not authorised by Gravity.
EXCEPT AS SPECIFICALLY PROVIDED ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY LAW:
- THE EQUIPMENT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE;
- GRAVITY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE EQUIPMENT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE; AND
- THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE EQUIPMENT IS ASSUMED BY YOU.
No oral or written information or advice given by Gravity, its dealers, distributors, agents, or employees, shall create a warranty or in any way increase the scope of this warranty, and you may not rely on any such information or advice.
All liability and obligations of Gravity under this Limited Warranty shall terminate upon expiration of the applicable warranty period provided herein. This Limited Warranty sets forth the entire responsibility of Gravity with respect to the Equipment. Gravity shall have no further liability to you or to any third party arising from the sale of the products whether based on warranty, contract, negligence, or other theories of liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, GRAVITY SHALL HAVE NO LIABILITY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY NATURE ARISING OUT OF GRAVITY’S BREACH OF THIS LIMITED WARRANTY, WHETHER SUCH DAMAGES AROSE IN CONTRACT OR TORT, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. To the maximum extent permitted by law, in no event shall Gravity’s liability for any breach of this Limited Warranty exceed the amount paid by you for the Equipment.
Gravity may, at its option, elect to ship replacement equipment in advance of receiving a failed item from you. If you do not return such failed equipment to the address specified by Gravity within 30 days of Gravity shipping your replacement equipment, you agree to pay, and Gravity will automatically charge your account an Unreturned Equipment Fee of no greater than the full replacement cost of the Unreturned Equipment, including shipping, taxes and duties. This fee will be collected in addition to your monthly service charge via your standard payment method (your credit/debit card on file or via invoice).
Despite the foregoing, obligations and rights held under the Consumer Guarantees Act 1993 and Fair Trading Act 1986 shall always prevail.
13 DISCLAIMER OF WARRANTIES ON THE SERVICE AND EXCLUSION OF LIABILITY.
13.1 WARRANTY DISCLAIMER.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, GRAVITY DOES NOT OFFER ANY WARRANTY IN CONNECTION WITH THE SERVICE. THE SERVICE IS MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. GRAVITY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICE WILL BE ERROR-FREE, SECURE, OR UNINTERRUPTED, OR OPERATE AT ANY MINIMUM SPEED. YOU AGREE THAT YOUR USE OF THE SERVICE, AND SUCH USE BY ANYONE USING YOUR ACCOUNT, IS AT YOUR SOLE RISK. NO ORAL ADVICE OR WRITTEN INFORMATION PROVIDED BY GRAVITY, ITS EMPLOYEES, AFFILIATES, OR THE LIKE SHALL CREATE A WARRANTY.
13.2 LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER GRAVITY NOR ANY OF ITS INFORMATION OR CONTENT PROVIDERS, SERVICE PROVIDERS, LICENSORS, EMPLOYEES, OR AGENTS SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICE OR INABILITY TO USE THE SERVICE. IF FOR ANY REASON ANY PORTION OF THE FOREGOING LIMITATION OF LIABILITY SHALL BE VOIDED, THEN IN SUCH EVENT THE MAXIMUM, SOLE, AND EXCLUSIVE LIABILITY OF GRAVITY, ITS DEALERS, DISTRIBUTORS, AGENTS, EMPLOYEES, OR THIRD-PARTY CONTENT PROVIDERS, IF ANY AND WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO GRAVITY BY YOU FOR SERVICES FURNISHED UNDER THIS AGREEMENT FOR THE PERIOD OF TIME COMMENCING UPON THE OCCURRENCE OF SUCH ERROR, DEFECT, OR FAILURE, AND CEASING UPON THE DISCOVERY AND RECTIFICATION OF SUCH, IN WHOLE OR IN PART; PROVIDED, HOWEVER, THAT IN NO EVENT SHALL SUCH PERIOD OF TIME EXCEED THE TWELVE- (12-) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE WHICH SUCH ERROR, DEFECT, OR FAILURE IS FIRST DISCOVERED IN WHOLE OR IN PART.
Without limiting the foregoing, Gravity shall not be responsible for: (a) any failure to transmit or store, or for any deletion of, any communication, message, email, or content transmitted through, sent to, or received by the Service or Gravity’ servers; or (b) any modification, suspension, interruption, or discontinuance of the Service.
You accept liability to us for your breach of this Agreement, violation of any applicable laws, or negligence, but you will not be liable for any loss to the extent it is caused by us. Your liability is limited to the twelve (12) month value of your Service Plan costs in any twelve (12) month period. This limitation does not apply to your obligations to pay any outstanding fees or charges or for any loss or damage caused by fraud, wilful breach of this Agreement, breach of our intellectual property, breach of any applicable law, or damage to tangible property.
15 LIABILITY FOR UNAUTHORISED USE.
You agree to notify us immediately after you sell, give away, or otherwise transfer your Equipment to anyone else. You are considered the registered recipient of the Service until Gravity receives such notice, and you will be liable for any charges or fees incurred by the use of your Equipment by anyone else up to the time that Gravity receives your notice, unless otherwise provided by New Zealand law. You may not assign or transfer your service without Gravity’s written consent. If you do, Gravity may inactivate your service. If your Equipment is stolen or otherwise removed from your premises without your authorisation, you must notify the Gravity immediately, or else you may be liable for payment for unauthorised use of your Equipment system. You will not be liable for unauthorised use after Gravity has received your notification.
16 PROPRIETARY RIGHTS.
All copyright or other proprietary rights notices contained in or associated with the content available through the Service must be preserved on any copies made of such material; provided, however, that no copies shall be made in violation of Section 7 or any other provision of this Agreement. The placement of copyrighted material in any public posting area, or any software library, without the consent of the copyright owner is prohibited.
As between you and Gravity, Gravity owns all intellectual property rights in and to the Services, Software, and Equipment (excluding any other content, information or other material that is uploaded, downloaded, posted, emailed or otherwise transmitted, accessed or made available by means of the Service by you, for which you shall be solely responsible).
SECTION VI – GENERAL
17 LIMITS ON TRANSFERS; NO RIGHT OF SURVIVORSHIP.
Unless otherwise agreed in writing, your right to use the Service, or to designate other users of your account, is not transferable and is subject to any limits established by Gravity. Your right to use your account and any unique identifiers assigned to you by Gravity shall terminate upon the termination of this Agreement. This Agreement will terminate immediately upon your death. If you are on a fixed term Service Plan, no Service Termination Fee will apply for termination of Services due to death.
18 CHOICE OF LAW.
This Agreement is made in New Zealand. This Agreement and all of the parties’ respective rights and duties in connection herewith, including, without limitation, claims for violation of consumer protection laws, unfair competition laws, and any claims in tort shall be governed by and construed in accordance with the laws of the New Zealand. You agree that this Agreement is set forth in the English language for the mutual convenience and benefit of the parties. A printed version of this Subscription Agreement and of any notice given in electronic form shall be admissible in judicial and administrative proceedings relating to or based upon this Subscription Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
19 ELECTRONIC DELIVERY POLICY AND YOUR CONSENT.
By applying for or using the Service, you consent to receive all agreements, disclosures, policies, notices, and other information (collectively, Notices) provided by Gravity or its affiliates via paper, aural, and/or electronic delivery at Gravity’ sole and absolute discretion. For purposes of example and not limitation, Gravity may deliver or display Notices to you by email, pop-up window, or posting a message in the secure Customer Portal or the Gravity Website. You agree that certain supplemental or enhanced services made available to subscribers may also have their own procedures for providing Notices.
20 CONSTRUCTION AND DELEGATION.
Neither the course of conduct between parties nor trade practice shall act to modify the provisions of this Agreement. Gravity may authorise or allow its contractors and other third parties to provide services necessary or related to making the Service available and to perform obligations and exercise Gravity’s rights under this Agreement, and Gravity may collect payment on their behalf, if applicable. The provisions of any Sections of this Agreement, which by their nature should continue, shall survive any termination of this Agreement.
21.1 Notice; Severability.
Where notification by Gravity is contemplated by or related to this Agreement, notice may be made by any reasonable means. If any term of this Agreement is found by a New Zealand court to be invalid, illegal, or unenforceable, it shall be construed in such a way as to eliminate the offending aspects while still giving as much effect as possible to the intentions of such term. Where an entire provision is invalid, illegal, or unenforceable and cannot be so repaired, then the term shall be considered to be stricken from this Agreement as if it had not been included. In any such case, the balance of this Agreement shall remain in effect in accordance with its remaining terms notwithstanding such invalid, illegal, or unenforceable term.
21.2 No Waiver.
Gravity may enforce or decline to enforce any or all of the terms of this Agreement in its sole discretion without waiving its rights to enforce such provisions in the future. In no event shall Gravity be required to explain, comment on, suffer liability for, or forfeit any right based on its enforcement, non-enforcement, or consistency of enforcement of these terms.
Captions used in this document are for convenience only and shall not be considered a part of this Agreement or be used to construe its terms or meaning.
22 ASSIGNMENT OF ACCOUNT.
Gravity may sell, assign, or transfer your account to a third party without notice to you.
23 ENTIRE AGREEMENT.
This Agreement, as published on the Website, as well as the additional online documents specifically referred to herein as being a part of this Agreement (e.g., the Acceptable Use Policy), constitute the entire and only agreement with respect to the subject matter hereof between you and Gravity. This Agreement supersedes all representations, proposals, inducements, assurances, promises, agreements, and other communications with respect to the subject matter hereof except as expressly set forth in this document. By applying for or using the Service, you agree to the terms and conditions of this Agreement. This Agreement can be amended only in the manner expressly provided for herein.