Nitonet terms and conditions and Conditions
Any additional or different terms and conditions you stipulate or state in any communication with Nitonet will not be binding on Nitonet.
All capitalised terms and conditions used in these terms and conditions have the meanings given to them in clause 1.
"Associated Users" means users that are associated with your User Account, as confirmed by you;
"Commencement Date" means the date on which Nitonet notifies a Visitor in writing that his/her registration to become a Customer has been accepted by Nitonet;
"Customer" means a Visitor who has been notified by Nitonet that he / she is a Customer (following acceptance by Nitonet of that Visitor's registration to become a Customer, if the Visitor is accepted by Nitonet as a Customer) (also referred to as 'you' or 'your');
"Intellectual Property" means includes all copyright, trademarks, designs, patents, domain names, concepts, know-how, trade secrets, logos and all other similar property and rights whether registered or unregistered;
"Nitonet" means Nitonet International Limited a company registered in New Zealand (also referred to as 'we' or 'our');
"NitoPhone Software" means the NitoPhone application software made available to Customers to download in order to use the Services;
"Services" means the telecommunications services made available by Nitonet, as described on the Website;
"User Account" means the user account that you set up;
"Visitor" means a person that visits the Website and includes a person that registers to become a Customer (also referred to as 'you' or 'your');
"Website" means the website at www.nitonet.com.
2. Becoming a customer
2.1 By registering on the Website to become a Customer:
(a) you acknowledge that:
ii. you will not become a Customer unless and until your registration has been approved by Nitonet and you have been notified accordingly;
iii. you are not entitled or able to use the NitoPhone Software or the Services unless and until you are a Customer.
(b) You represent and warrant that:
i. you are 18 years of age or older;
ii. all details provided to Nitonet by you or on your behalf are accurate and complete;
iii. you are an authorised user of the credit or debit card used to place your order;
iv. you are lawfully entitled to use the Nitonet Software, Products and Services and the Website in the country in which you are located;
v. you have a valid and legal payment instrument linked to your registered address;
vi. if you are accepted by Nitonet as a Customer there are and will be at all relevant times sufficient funds available on the credit or debit card used to place your order to cover the cost of the Services you purchase;
vii. You understand and accept that automatic forwarding of calls to your registered mobile number(s) may occur based on control policy set up on your account. Default policy is for this to happen. You understand you can change this on your account at any time through self-service portal provisioned to you. Cost of call forwarding will be charged against your account.
2.2 We are required by law (e.g. local tax rules) to identify your country and region/state of residence for certain services. These may be acquired via Mobile Verification and/or ID Verification. If we are not able to ascertain your country and region/state as required, you accept that you may be charged default tax rate and airtime rate.
2.3 Nitonet may perform ID Verification using the information you provide to us. We will not store any of your government issued information on our system
2.5 Nitonet may at its discretion decline to accept any Visitor as a Customer.
2.6 You may only use the NitoPhone Software through your User Account. You are solely responsible and liable for all activities conducted through your User Account, including those of any Associated Users. To prevent unauthorised use, you agree that you will keep your password confidential and will not share it with any third party or use it to access third party websites or services. If you suspect that someone else knows your password, then you shall immediately change it in order to protect the security of your User Account. It is your responsibility to ensure that you do not respond to any unsolicited requests for credit card details, passwords or other data. Nitonet takes no responsibility for your failure to comply with the obligations in this clause 2.6.
2.7 The user id and password that you choose enable you to access our secure customer portal. You understand that the user id and password are different from your Nitonet assigned phone numbers.
2.8 You acknowledge and authorise Nitonet to capture use meta-data on your account in a safe and secure way for the purpose of improving service quality and Warranted Legal requirements.
3. Use of Services, Nitonet Software and Website
3.1 Nitonet will provide to you the Services that you select on the Website, in the manner described on the Website.
3.2 You are only permitted to use the Services, Nitonet Software and Services in the manner intended and you must not misuse the Services, Nitonet Software or the Website.
3.3 Access to the Services, the Nitonet Software and the Website is permitted on a temporary basis, and we reserve the right to withdraw or amend the Services without notice. We will not be liable if for any reason the Website is unavailable at any time or for any period. From time to time, we may restrict access to some or all parts of the Website.
You will not:
(a) commit or encourage a criminal offence;
(b) transmit or distribute a virus, trojan, worm, logic bomb or any other material which is malicious, technologically harmful, in breach of confidence or in any way offensive or obscene;
(c) hack into any aspect of the Service;
(d) corrupt data;
(e) cause annoyance to other users;
(f) infringe upon the rights of any other person's proprietary rights;
(g) send any unsolicited advertising or promotional material, commonly referred to as "spam";
(h) attempt to affect the performance or functionality of any computer facilities of or accessed through the Website.
Breaching this provision would or may constitute a criminal offence and Nitonet will report any such breach to the relevant law enforcement authorities and disclose your identity to them.
3.5 You may store, print and display the content supplied solely for your own personal use. You are not permitted to publish, manipulate, distribute or otherwise reproduce, in any format, any of the content or copies of the content supplied to you or which appears on this Website nor may you use any such content in connection with any business or commercial enterprise.
3.6 Nitonet grants to the Customer a limited, non-exclusive, non-assignable licence to download and install the NitoPhone Software on a personal computer or mobile device and use the Nitonet Software through your individual Nitonet User Account. Nitonet reserves all rights not expressly granted to you under these terms and conditions.
3.7 You may not and you agree not to:
(a) sub-licence, sell, assign, lease, export, import, distribute or transfer or otherwise grant rights in the Nitonet Software to any third party;
(b) undertake, cause, permit or authorise the modification, creation of derivative works or improvements, translation, reverse engineering, decompiling, disassembling, decryption, emulation, hacking, discovery or attempted discovery of the source code or protocols of the Nitonet Software or any part or features thereof (except to the extent permitted by law);
(c) remove, obscure or alter any copyright notices or other proprietary notices included in the Nitonet Software;
(d) use the Nitonet Software or cause the Nitonet Software (or any part of it) to be used or to provide commercial products or services to third parties. The foregoing shall not preclude you using the Nitonet Software for your own business communications, subject to clause 3.2 above;
(e) other than for the purposes of download and installation, use the Nitonet Software except through your User Account.
3.8 Nitonet does not represent or warrant that the Nitonet Software, Products and/or Nitonet websites will always be available, accessible, uninterrupted, timely, secure, accurate, complete and error-free or will operate without packet loss, nor does Nitonet warrant any connection to or transmission from the internet, or any quality of calls made through the software.
3.9 You agree to use Nitonet Software, Products and Nitonet Websites in accordance with all applicable laws.
3.10 We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of this Website or to your downloading of any material posted on it, or on any website linked to it.
3.11 The Website may contain links to other websites (the "Linked Sites"), which are not operated by Nitonet. Nitonet has no control over the Linked Sites and accepts no responsibility for them or for any loss or damage that may arise from your use of them. Your use of the Linked Sites is subject to the terms and conditions of use and service contained within each such site.
3.12 We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of this Website or to your downloading of any material posted on it, or on any website linked to it.
4. Prohibited Use
4.1 You may not:
(a) intercept or monitor, damage or modify any communication which is not intended for you;
(b) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage, emulate or disassemble the Software, Products, Nitonet Websites, communication or protocols;
(c) commit or encourage a criminal offence; transmit or distribute a virus, trojan, worm, logic bomb or any other material which is malicious, technologically harmful, in breach of confidence or in any way offensive or obscene; hack into any aspect of the Service; corrupt data; cause annoyance to other users; infringe upon the rights of any other person's proprietary rights; send any unsolicited advertising or promotional material, commonly referred to as "spam"; or attempt to affect the performance or functionality of any computer facilities of or accessed through this Website. Breaching this provision would constitute a criminal offense and www.Nitonet.com will report any such breach to the relevant law enforcement authorities and disclose your identity to them.
(d) send unsolicited communications (e.g. "SPAM", "SPIM" or "SPIT") or any communication not permitted by applicable law or use the Nitonet Software, Products or Nitonet Websites for the purposes of phishing or pharming or impersonating or misrepresenting affiliation with another person or entity;
(e) expose any third party to material which is offensive, harmful to minors, indecent or otherwise objectionable in any way, including but not limited to: nudity, bestiality, pornography;
(f) use the Software, Products or Nitonet Websites to cause or intend to cause embarrassment or distress to, or to threaten, harass or invade the privacy of, any third party;
(g) use (including as part of your User ID and/or profile picture) any material or content that is subject to any third party proprietary rights, unless you have a licence or permission from the owner of such rights; or
(h) collect or harvest any personally identifiable information, including account names, from the Software, Products or Nitonet Websites;
(i) impact or attempt to impact the availability of the Software, Products or Nitonet Websites for example, with a denial of service (DOS) or distributed denial of service (DDoS) attack;
(j) use or launch any automated system, including without limitation, robots, spiders or offline readers that access the Software, Products or Nitonet Websites. Notwithstanding the foregoing, you agree that Nitonet grants to the operators of public search engines permission to use spiders to copy materials from the Nitonet Website for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. Nitonet reserves the right to revoke these exceptions at any time;
(k) engage in any activity that is false or misleading.
4.2 Any breach of these terms and conditions or of applicable law may result in Nitonet requesting you to remove the content or Nitonet removing your content. Failure to comply with these terms and conditions may also result in you losing access to, or cancellation of your User Account. We may also remove your content without informing you if we receive a notice of intellectual property infringement from a third party.
5. Intellectual Property ownership
5.1 Nitonet or its licensors own all Intellectual Property in the Website, the NitoPhone Software and the Services.
5.2 Nothing in these terms and conditions operates to assign ownership to you of any Intellectual Property.
5.3 The content and compilation of content included on the Nitonet Websites, (excluding User Submissions) such as sounds, text, graphics, logos, icons, images, audio clips, digital downloads and software, are the property of Nitonet, its affiliates, subsidiaries or licensors. Such copyright protected content cannot be reproduced without Nitonet's express permission. Nitonet reserves all rights not expressly granted in the Nitonet Websites.
5.4 You will not take any action to jeopardise, limit or interfere with Nitonet's Intellectual Property rights in the Nitonet Software, and/or Nitonet Websites.
5.5 "Nitonet", associated trademarks and logos and the "N" logo are trademarks of Nitonet. Nitonet has registered and filed applications to register its trademarks in many countries worldwide. Nitonet's trademarks and trade dress may not be used in connection with any product or service that is not Nitonet's, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Nitonet. All other trademarks not owned by Nitonet or any of its related companies that appear on the Website are the property of their respective owners. You are not permitted to and shall not register or use any trade name, trademark, logo, domain name or any other name or sign that incorporates any of Nitonet's intellectual property (in whole or part) or that is confusingly similar thereto.
5.6 Except where expressly stated to the contrary all persons (including their names and images), third party trademarks and content, services and/or locations featured on the Website are in no way associated, linked or affiliated with www.Nitonet.com and you should not rely on the existence of such a connection or affiliation. Any trade marks/names featured on this Website are owned by the respective trade mark owners. Where a trade mark or brand name is referred to it is used solely to describe or identify the products and services and is in no way an assertion that such products or services are endorsed by or connected to www.Nitonet.com.
6.1 Upon receiving your order we carry out a standard authorisation check on your payment card to ensure there are sufficient funds to fulfil the transaction. Your card will be debited upon authorisation being received. The monies received upon the debiting of your card shall be treated as a deposit against the value of the product or service you wish to purchase. Once the order has been processed and you have been sent a confirmation email the monies paid as a deposit shall be used as consideration for the value of products or service you have purchased as listed in the confirmation email.
6.2 You accept that you shall pay required taxes as applicable in your country of residence. Nitonet shall apply the guidelines of the law to charge you this tax amount. The tax shall be in addition to the face value of the products and/or services procured from Nitonet.
7. Linking to this Website
7.1 You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any website that is not owned by you. This Website must not be framed on any other site, nor may you create a link to any part of this Website other than the home page without explicit permissions from us. We reserve the right to withdraw linking permission without notice.
8.1 You may terminate the Agreement you have with us at any time by requesting closure of your user account.
8.2 Nitonet may terminate or suspend your use of the NitoPhone App, user account, or access to the Website at any time:
(a) if you are in breach of these terms and conditions;
(b) if Nitonet suspects that you are using any of our software or products and services to break the law or infringe upon third party rights;
(c) if Nitonet reasonably suspects that you are trying to exploit or misuse any of our services;
(d) if Nitonet reasonably suspects that you are using Nitonet's products, software and or Website fraudulently or if your user account is being used fraudulently by a third party;
(e) on thirty (30) days' notice if Nitonet decides to discontinue a product or service;
(f) immediately if required due to a change in or adverse interpretation of laws/regulations or where required by a regulator or authority with a lawful mandate, or by any of Nitonet's partners;
(g) on thirty (30) days' notice if Nitonet decides to end offering the NitoPhone Software to users in your jurisdiction;
9. Consequences of termination
9.1 Upon termination of your relationship with Nitonet: (a) all licenses and rights to use the Software, Products and/or Nitonet Websites shall immediately terminate; (b) you will immediately cease any and all use of the Software, Products and/or Nitonet Websites; and (c) you will immediately remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software in your possession or under your control.
9.2 To the maximum extent permitted by law: Nitonet will be under no obligation to refund unspent credit on your account
10. No warranties
10.1 For the purposes of this clause 10, "Nitonet" includes its subsidiary companies and affiliated legal entities and all their directors, officers, agents, licensors and employees.
10.2 To the maximum extent permitted by law: the software, products and Nitonet websites are provided "as is" and used at your sole risk with no warranties whatsoever; Nitonet does not make any warranties, claims or representations and expressly disclaims all such warranties of any kind, whether express, implied or statutory, with respect to the software, products and/or Nitonet websites including, without limitation, warranties or conditions of quality, performance, non-infringement, merchantability, or fitness for use for a particular purpose.
10.3 The content displayed on this Website is provided without any guarantee, conditions or warranty as to its accuracy. Unless expressly stated to the contrary to the fullest extent permitted by law, www.Nitonet.com and its suppliers, content providers and advertisers hereby expressly exclude all conditions, warranties and other terms and conditions which might otherwise be implied by statute, common law or the law of equity and shall not be liable for any damages whatsoever, including but without limitation to any direct, indirect, special, consequential, punitive or incidental damages, or damages for loss of use, profits, data or other intangibles, damage to goodwill or reputation, or the cost of procurement of substitute goods and services, arising out of or related to the use, inability to use, performance or failures of this Website or the Linked Sites and any materials posted thereon, irrespective of whether such damages were foreseeable or arise in contract, tort, equity, restitution, by statute, at common law or otherwise. This does not affect www.Nitonet.com's liability for death or personal injury arising from its negligence, fraudulent misrepresentation, misrepresentation as to a fundamental matter or any other liability which cannot be excluded or limited under applicable law.
11. Limitation of liability and indemnity
11.1 Nothing in these terms and conditions shall exclude or restrict Nitonet's liability for (a) death or personal injury, (b) loss resulting from Nitonet's wilful default or gross negligence, (c) fraud or deliberate misrepresentation, or (d) any liability which cannot be limited or excluded by applicable law.
11.2 Nitonet will have no liability whatsoever, whether in contract, tort (including negligence) or otherwise, and whether or not the possibility of such damages or losses has been notified to Nitonet, in connection with or arising from your use of Nitonet websites, or any Nitonet communications software or other software that is provided free of charge. Your only right or remedy with respect to any problems or dissatisfaction with such software and/or Nitonet websites is to immediately de-install such software and cease use of such software and/or Nitonet websites.
11.3 Subject to clauses 11.1 and 11.2 above, Nitonet shall not be liable to you, whether in contract, tort (including negligence) or otherwise, and whether or not the possibility of such damages or losses has been notified to Nitonet, for:
(a) any indirect, special, incidental or consequential damages; or
(b) any loss of income, business, actual or anticipated profits, opportunity, goodwill or reputation (whether direct or indirect); or
(c) any damage to or corruption of data (whether direct or indirect);
(d) any claim, damage or loss (whether direct or indirect) arising from or relating to:
(e) any product or service provided by a third party under their own terms and conditions of service;
(f) any Other Technology;
(g) any third party website.
11.4 Subject to clauses 14.1 - 14.3 above, Nitonet's total liability to you under or in connection with these terms and conditions (whether in contract, tort (including negligence) or otherwise shall not exceed in aggregate the amount paid by you for the products in the 12 month period immediately prior to the date of the event giving rise to the relevant claim, subject to a maximum of the amount paid by you to Nitonet in the 12 month period preceding the event giving rise to the claim.
11.5 If any third party brings a claim against Nitonet in connection with, or arising out of:
(a) your breach of these terms and conditions;
(b) your breach of any applicable law of regulation;
(c) your infringement or violation of the rights of any third parties (including intellectual property rights);
(d) your User Submissions or (v) your complaint in relation to any User Submission,you will indemnify and hold Nitonet harmless from and against all damages, liability, loss, costs and expenses (including reasonable legal fees and costs) related to such claim.
11.6 You agree to indemnify, defend and hold harmless www.Nitonet.com, its directors, officers, employees, consultants, agents, and affiliates, from any and all third party claims, liability, damages and/or costs (including, but not limited to, legal fees) arising from your use this Website and all Nitonet services and products or your breach of the terms and conditions of Service.
12. Governing Law
12.1 The Agreement is governed by and construed in accordance with New Zealand law and the parties submit to the non-exclusive jurisdiction of the New Zealand courts.
13.1. We operate a complaints handling procedure which we use to resolve disputes when they first arise. To make a complaint or to comment, please contact: firstname.lastname@example.org
14. General provisions
14.1 Entire agreement: The Agreement constitutes the complete and exclusive statement of the agreement between the parties, superseding any and all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of the Agreement.
14.2 Amendments: No amendment to these terms and conditions will be effective unless it is in writing and signed by both parties.
14.3 Waiver: No exercise or failure to exercise or delay in exercising any right or remedy by a party will constitute a waiver by that party of that or any other right or remedy available to it.
14.4 Partial invalidity: If any provision of the Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of the Agreement and its application will not be affected and will remain enforceable to the greatest extent permitted by law.
14.5 Independent contractor: Nitonet is an independent contractor to the Customer and is in all respects independent of the Customer. Nothing in the Agreement constitutes either party a partner, agent, employee or joint venturer of the other.
14.6 Suspension: Nitonet may suspend performance of its obligations under the Agreement for so long as it is unable to perform for reasons outside of its control.
14.7 Assignment: The Customer must not transfer or assign, or attempt or purport to transfer or assign, its rights under the Agreement.
14.8 Severability: If any provision of the Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted.