Terms & Conditions

Terms and Conditions and Applicable Parties

These Terms and Conditions are made between Mercury IT Limited (“Mercury IT” or “we” or “our”) and the user of Mercury IT services (the “customer “or “you” or “your”). We reserve the right to amend these conditions from time to time and will post on our website, any amended terms at least 15 days prior to their taking effect.

These Terms and Conditions replace all previous Terms and Conditions, for any customer who does not have a signed and active Master Services Agreement (MSA), and apply for services to both existing customers and new customers. By using our services Mercury IT you are deemed to have accepted these terms and conditions and they apply as of the date of your application for Services.

If you are a using our services for business purposes you agree that provisions of the Consumers Guarantees Act 1993 do not apply to the full extent permitted by law.

This agreement and the relationships between the parties shall be governed by the laws of New Zealand.

Acceptance

Any instructions received by Mercury IT from the Client for the supply of Goods and/or Services shall constitute acceptance of the terms and conditions contained herein.

Applicable Parties

You may not transfer this agreement without our prior written consent. We have the right to transfer our rights and obligations under this agreement without your consent.

Our Services

We are not obliged to provide services unless we accept your application. We can decide whether or not to accept any application.

Mercury IT aims to provide you with the highest quality of services. Due to the nature of IT, these services may be interrupted from time to time due to planned or unplanned maintenance, equipment failures and other factors which may or may not be within our control. We will endeavour to notify you of any planned maintenance on our website (www.mercuryit.co.nz) but this may not always be possible where critical issues arise. We also use some external services e.g. Chorus networks, and have no control over their equipment and services. In the event of service failure, we will endeavour to restore services as quickly as possible and to minimise disruption to customers.

We reserve the right to change our rates from time to time and if we increase any rates, we will give you as much notice as reasonably possible.

Customer Responsibilities

Customers agree to comply with all applicable laws and regulations of New Zealand. It is your responsibility to ensure such compliance. Your use of our services must be for lawful purposes only.

Services must not be used for activities that are unlawful, antisocial, pornographic or similarly distasteful in nature or for spamming or sending of unsolicited email including sending to email addresses maintained by Mercury IT; or breach of copyright owned by another. Breach of these provisions may result in suspension and/ or termination of services. Mercury IT will be the sole arbiter of what constitutes a violation of these provisions.

Customers must ensure that contact information provided to us is correct and up-to-date and maintain confidentiality of any username and passwords provided.

They shall remain in force until either Mercury IT or the customer notifies the other in writing (including by e-mail) of intent to terminate agreement.

Prices

Prices do not include software. Any software that is provided by Mercury IT to give access remains the property of the software’s owners and the customer is responsible for any fees or donations asked for by the software’s owner. Payment to Mercury IT for your account must be paid in advance.

Payment

The customer agrees to pay for services set up with Mercury IT, whether directly or through a third party, regardless of whether these services are used or not. Details of account charges and contract periods are as displayed on the website or agreed expressly with Mercury IT, and may be subject to change by Mercury IT.

All accounts must be setup with direct debit or credit card. If a credit card is provided to pay for the initial invoice, this will be used for payment until a direct debit is setup. Credit card payments will include a $2 or 2.33% bank fee.

Payment is due according to the terms stated on the invoice, paid in New Zealand Dollars. Accounts unpaid within the payment terms may be suspended and/or terminated by Mercury IT immediately at Mercury IT’s discretion.

Overdue accounts may be subject to interest charge of 5% /month on the outstanding balance. Special arrangements for business customers to pay by the 20th of the following month may be available.

Costs incurred on collection of any overdue debts, including legal and debt recovery costs on a solicitor and client basis, are fully payable by the customer.

Payment for services is normally in advance, unless agreed in writing with Mercury IT. Payment terms are displayed on the Mercury IT website.

Invoices and statements are sent by email.

Any query regarding excess time or data charges must be made within 7 days of the receipt of the invoice. Mercury IT reserves the right to limit their exposure to the user by suspending the account until the full amount is paid. The time in suspension is not deducted from the following months subscribed time.

Charges are normally exclusive of GST unless otherwise specified.

Fair Use Policy

All Mercury IT services are subject to our Fair Use Policy. We may apply our Fair Use Policy where in our reasonable opinion your usage of our Services is excessive and/or unreasonable as detailed in this paragraph.

We have developed our Fair Use Policy by reference to average customer profiles and estimated customer usage of our Services.

If your usage of our Services materially exceeds estimated use patterns over any month, or is inconsistent with normal usage patterns, then your usage will be excessive and/or unreasonable.

If your usage is excessive and/or unreasonable we may contact, you to advise you that your usage is in breach of our Fair Use Policy.

We may then request that you stop or alter your usage to come within our Fair Use Policy.

If your excessive or unreasonable usage continues after receipt of a request to stop or alter the nature of such usage, we may without further notice, apply charges to your account for the excessive and/or unreasonable element of your usage; suspend, modify or restrict your use of the Services or withdraw your access to the Services.

Termination of Services

Customers may terminate their account by notice in writing to Mercury IT or by email to [email protected]. 1 months’ notice of cancellation is required and accounts may not be terminated during the period of any fixed contract term. (Consider: cancellation during a fixed term does not release you from paying for the balance of the fixed term whether you use the Services or not.) All charges incurred to the date of cancellation (or expiry of the fixed term) are payable by the customer.

Mercury IT reserves the right to suspend and/ or terminate an account for breach of these terms and conditions. Mercury IT may also terminate services with a customer by normally providing 7 calendar days’ notice of cancellation or is there is a breach of Terms and Conditions Mercury IT may suspend or terminate services immediately.

Upon termination all data relating to the customer stored on Mercury IT equipment will be deleted at a time of choosing by Mercury IT.

Compatibility

Mercury IT warrants that its communications software conforms to established telecommunications industry protocols, and should be compatible with most off-the-shelf consumer communications software. Mercury IT disclaims any express or implied warranty with respect to the performance, capacity, merchantability, or other compatibility issues of its hardware and software products and services.

Indemnification

Unless there is an active signed Master Services Agreement the customer assumes liability for and hereafter agrees to hold Mercury IT harmless, its employees, agents, officers and directors from all claims for lost profits, punitive or other adjudicated damages, expenses, including reasonable legal fees, incurred from usage of any service provided by with Mercury IT. Mercury IT does NOT WARRANT that services will be without interruptions or errors. Mercury IT will not accept any responsibility for costs, damage, disruption or inconvenience from any services disruption or complete loss of service or data (including loss of email and website data), nor from computer virus (and similar malicious programs, including spam), and is not liable for any associated telecommunications, equipment or software charges. Any data stored on Mercury IT equipment is stored at the customers own risk and no responsibility will be taken for loss or damage to the data.

Disputes

Any dispute shall, at the option of Mercury IT, be referred to mediation or arbitration. The Arbitration Act 1996 (or any replacement of that act) shall govern arbitration.

Laws

If any parts of these terms of trade shall be held to be illegal, unenforceable or invalid, the remaining parts shall continue in full force and effect. The laws of New Zealand shall govern these terms of trade and Mercury IT and the Client hereby submit to the non-exclusive jurisdiction of the courts of New Zealand.

Copyrights and Trademarks

Mercury IT does not authorize any client to use Mercury IT or any manufacturer’s trademarks, names or associated materials. To use these trademarks, names and associated materials, prior written approval must be given by Mercury IT or the relevant manufacturer.

Intellectual Property

Unless otherwise agreed in writing, Mercury IT is the owner of all copyright, trademarks and other intellectual property rights that may arise in relation to the services provided and shall only be used by the Client at Mercury IT’s discretion.

The Client warrants that all designs or instructions to Mercury IT will not cause The Mercury IT to infringe any patent, copyright, registered design or trademark in the execution of its obligations to the Client.

Confidentiality and Privacy

We will maintain as secret and confidential all information we obtain from the Client further to these terms and conditions and will not use that information for any reason other than as necessary for providing the services. This obligation will not apply to information that is in the public domain or that is known to us or obtained by us without breaching any obligation to you or that we are required to disclose by law.

The Client authorise us to collect, retain, use and provide to our staff and agents, and any person or body as required by law, any personal information about the Client for the purposes of credit assessment, debt collection purposes, meeting Mercury IT’s obligations to the client, and enforcing our rights against you. The Client has the right to access and require the correction of the Client’s information held by Mercury IT.

Liability

In no event will Mercury IT be liable (whether in contract, tort (including negligence), equity, breach of statutory duty or otherwise) to you for:

Loss of profits or savings, loss of goodwill or opportunity, loss or corruption of data, or wasted staff time; or

Loss, damage, costs or expense of any kind whatsoever which is indirect, consequential, or of a special nature, arising directly or indirectly from any services or products supplied by us to you, even if we had been advised of the possibility of such loss, damage, cost or expense.

To the extent allowed by law, our total liability under any claim of any nature arising directly or indirectly from any service or product will not exceed the fees paid by you for that service or product.

Indemnity

The client indemnifies Mercury IT against any and all liability, losses, damages, costs and expenses of any nature whatsoever awarded against, incurred or suffered by Mercury IT, whether direct or consequential, arising out of or resulting from the Client’s breach of this agreement.

Force Majeure

We will not be liable to you for any breach or failure to perform any of our obligations where such breach or failure is caused by anything beyond our reasonable control, including, but without limitation, inability to obtain supplies, war, civil commotion, terrorism, strike, lockout, an act of God, fire, and natural disaster including floods, earthquakes, tsunamis or other weather phenomena.

If we are unable to perform our duties and obligations under these terms and conditions as a direct result of any such reasons the operations of these terms and conditions will be suspended during the period in which the reason continues.

Fixed Contract Periods and Change of Account Type

Fixed contract accounts via a signed Master Services Agreement can provide a discount for a customer’s commitment to Mercury IT as well as Mercury IT agreeing to a level of professional liability.

Support

Mercury IT will normally provide a telephone support service during normal business hours (subject to specific account conditions). On busy and holiday periods, there may be a delay in answering calls or returning voice messages. This telephone support is for queries relating to the services provided by Mercury IT, and not to general IT/ PC problems. An after-hours service for urgent technical queries may also be available, but is not guaranteed. Mercury IT will endeavour to return customer queries left on voice messages at the earliest opportunity next working day. Queries can also be sent to [email protected].

Broadband Internet

Broadband speed is not greatly determined or influenced by Mercury IT equipment. All broadband speeds affected by your geographic location to your local exchange or cabinet, and potentially your office wiring, or router.

Domain Names

Mercury IT acts a reseller for some domain registrars. Mercury IT will invoice the customer for the domain or domain renewal in advance. Payment is due before the expiry of the domain. If payment is not received into the bank account of Mercury IT by the due date, Mercury IT may choose to cancel the domain. Mercury IT accepts no responsibility for any loss arising from the cancellation. Any reinstatement of the domain is subject to reinstatement and administration charges, payable in advance. Mercury IT reserves the right to refuse to act as a reseller in certain cases.

Email

Mercury IT’s mail servers are currently fast, reliable and efficient. We can maintain that level of Service only by effective management of email. The mail servers are configured to allow up to at least 20 megabyte emails to be sent or received at any time. Total mail box space should be kept under 40 megabytes at all times. If your mailbox exceeds 40 megabytes or your unread mail has resided there for more than 60 days, Mercury IT reserves the right to remove it in the interests of good mail management.

Mercury IT operates a spam and virus filtering service for email intended to remove spam and virus attachments. Whilst we endeavour to make this as efficient and effective as possible, spam and virus mails may still get to the customer and, on rare occasions, valid emails may also be blocked/ deleted by the filters. Mercury IT recommends customers use their own anti-virus and firewall systems to help provide further protection.

Web Hosting

Web Hosting is billed monthly or quarterly in advance unless otherwise arranged in writing with Mercury IT. If the account is not paid within the terms of the invoice, Mercury IT reserves the right to remove access and disable the web site. Continued non-payment of the account may result in complete termination of web hosting and deletion of all customer data.

The author of each web site is “the publisher”. Mercury IT does not moderate and takes no responsibility for the actions of the publishers. Mercury IT reserves the right to suspend or delete any site that is not compliant with the applicable laws of New Zealand and may do so at its sole discretion.

Unless agreed Mercury IT does not provide backup of customer websites and databases as part of its normal web hosting services and it is the responsibility of website owners to keep copies of all data stored on their sites in the event of data corruption or deletion whether by the customer or Mercury IT.

Ecommerce sites operated by customers are operated at the sole risk of the customer and Mercury IT does not warrant that services will be free from interruption. Data stored on websites and associated databases is fully at the risk of the customer.

VoIP Services

We will use all reasonable endeavours to make our services available to you at all times, however things beyond on control such as power outages or the performance of your internet connection may disrupt the service we provide.

You accept that our services are not required to support emergency calls.

You accept that Mercury IT VoIP might not be compatible with non-voice communications equipment such as home alarms, fax machines, Sky Digital and St John Alarms.

Any phone number that we allocate to you does not become your property and does not constitute any transfer of property rights.

If we need to change your number we will send you notification by email and give you as much notice as possible.

We can withdraw or terminate any number at any time without liability, particularly if you do not comply with the instructions for use.

Mercury IT retains ownership of all VOIP phone lines until the final bill is settled. Mercury IT will then transfer control of the number to you so you can port the number to another service provider.

Once control has been transferred, you may be able to port your Mercury IT number to another service provider. If you wish to do so you must contact the other service provider directly and you will be responsible for completing the porting requirements of that service provider. We will comply with our obligations under the Terms for Local and Mobile Number Portability in relation to the porting of your number.  You will be responsible for all costs associated with porting the number.

If your account is inactive for more than 6 months or disconnected, and you have not ported the associated phone number(s), we may at our sole discretion reallocate the numbers associated with your account.

We exclude all of our liability to you in connection with us providing services to you or failing to provide services to you. Without limiting this, we are not liable to you (and nor are any of our officers, employees, contractors or agents liable to you):

i) if any communication is intercepted, not properly transmitted or received;
ii) for any disruptions or delays with the use of our services;
iii) for any incompatibility with other services;
iv) if any software we supply does not operate properly;
v) for any equipment or network failures.

We are not liable to you for any fault in, delay or non-provision of services which is caused by an event beyond our reasonable control.

We are not liable for cost of calls if you login/access details have been used by a 3rd party with or without your control. All call costs in the instance of a 3rd party accessing your login credentials are liable to you, the customer of Mercury IT.

We are not liable for cost of calls if you own SIP PABX or other SIP device has been hacked or compromised by a third party with or without your control. All call costs in the instance of a third party accessing your SIP PABX or other SIP device are liable to you, the customer of Mercury IT.

If you use another service provider during any period when our service is not fully operational, we are not liable to pay any amount you are charged by that service provider.

You acknowledge that no third party whose network or services we use to supply services to you (nor any officer, employee, contractor or agent of such third party) is in any way liable to you in connection with our services.

If you need access to the 111 service during a power cut, please review if you qualify as a vulnerable customer under the Commerce Commission 111 Contact Code here, and if it applies, please download our application form to fill out and send back to us.

Third Party Software

Mercury IT provides access for some customers and their web designers to the webservers for the installation, maintenance or update of software. Mercury IT makes no guarantees and takes no responsibility for the performance (or lack of) for this software. Mercury IT reserves the right to upgrade, remove or alter any software due to security or performance issues at any time. This could be without consultation with web customers although, where possible, we will attempt to notify known users of the scripts of any change. Usage and maintenance is at the customers own risk.

Goods and Services

The Goods and/or Services are as described on the invoices, quotation, estimate, or any other document as provided by Mercury IT to the Client.

All parts are subject to availability.

Mercury IT provides professional IT consultancy, advice and support. Our computer repair services include hardware and software sales, installation, repair and upgrade/replacement. We also provide Remote Assistance and Call Outs when required.

Delivery of Goods

Any charges for handling (including packing materials) and freight charges are extra, and payable by the Client. The most cost effective delivery method will be chosen where possible.

Delivery of the Goods shall be made to the Client’s address. The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Client at Mercury IT’s address.

Delivery of the Goods to a carrier, either named by the Client or failing such naming to a carrier at the discretion of Mercury IT for the purpose of transmission to the Client, is deemed to be a delivery of the Goods to the Client.

The costs of carriage and any insurance which the Client reasonably directs The Mercury IT to incur shall be reimbursed by the Client (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Client’s agent.

Where there is no agreement that Mercury IT shall send the Goods to the Client, delivery to a carrier at limited carrier’s risk at the expense of the Client is deemed to be delivery to the Client.

The Mercury IT may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions of these terms and conditions.

Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of these terms and conditions.

Data Loss, Viruses and Spyware

The Client assumes all risk of data loss from any and all causes or in any way related to or resulting from the repair or service of computer hardware, software or other equipment by Mercury IT.

The Client agrees to bear full responsibility for all data backup prior to any repair or service of their computer hardware, software or other equipment by Mercury IT. The Client hereby indemnifies Mercury IT from any claim or liability related to data loss for any reason whatsoever.

The Client assumes all risk of computer Viruses, Spyware & Adware and will not hold Mercury IT responsible. The Client is responsible for the costs of consulting time and materials required to remove any computer Viruses, Spyware or Adware.