Welcome to the B+W Website.
Your access to and use of our internet site, the B+W Store and any services and Products we provide to you are all subject to the following notices, disclaimers, terms and conditions. Further, when you use any service or purchase any product, you will be subject to the rules, guidelines, policies, terms and conditions, which we indicate to you on this Website at the time as being applicable to such service or product.
These terms and conditions apply in addition to any Other Agreement you may currently have with M2 NZ Limited or Black + White Services Limited in connection with the Services and may be changed at any time and any such changes will be notified on the Website. Please note that the Products for sale on the Website are only available to those customers situated within New Zealand.
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
"B+W", "we, "our" and "us" shall mean M2 NZ Limited (but only in the context of the provision of Services under any Other Agreement).
"B+W Store" means the part of the Website operated by B+W as the medium by which Products and services are offered for sale by us to our customers situated within New Zealand.
"Content" means all Trade Marks, text, graphical and other visual content, as well as all audio content and other information contained in our Website "GST" means goods and services tax chargeable in accordance with the Goods and Services Tax Act 1985.
"Other Agreement" or "Other Agreements" means any other terms and conditions that apply to you in relation to any Services offered or supplied by M2 NZ Limited.
"Nominated Payment Authority" means the form of credit/charge card authority accepted by us and provided by you for payment of the Price.
"Price" means the recommended retail price for the Products in New Zealand, and includes GST and any other sale tax but excluding those costs and charges as described in clause 4.2, which you will be liable. Please note that all prices posted on the Website are for on-line purchases only and will not be matched at any offline retail location and prices are subject to change without notice.
"Products" means those products and goods from time to time supplied by us to our customers situated in New Zealand and for sale in the B+W Store all of which are subject to these Terms and Conditions.
"Services" means those telecommunications services supplied by M2 NZ Limited to its customers all of which are subject to specific terms and conditions as set out in the Other Agreements.
"Trademarks" means all of our trademarks, whether registered or unregistered.
"Website" means this internet site operated by B+W and includes where applicable the B+W Store.
"you" means you our customer, whether an individual, a company, or any other form of entity.
2 USE OF OUR WEBSITE
2.1 The Website is operated by B+W. By using the Website, you agree to these Terms and Conditions. If you disagree with any of these terms and conditions, you should not purchase from or otherwise use the Website.
2.2 By using the Website you acknowledge that you have read, understood and accepted these Terms and Conditions and agree to be bound by them and that any order and/or application you place through the Website to acquire Products and Services constitutes a legally binding offer to purchase capable of being accepted by B+W. You are liable for every order/application you make and if your order/application is accepted you will be subject to these terms and conditions relating to Products and to the Other Agreements relating to your use of specific Services.
2.3 If you are under the age of 18, you must only use this Website, or any Products or Services offered by us with parental or caregiver consent, provided they are over the age of 18 and accept these terms and conditions on your behalf.
2.4 If you are purchasing on behalf of a company, association, partnership or other such entity ("Entity") then:
- You warrant that you are authorised to agree to these terms and conditions on behalf of the Entity;
- You warrant that you are authorised by the Entity to make the purchase;
- Delivery of the Product(s) ordered must be to the Entity's address in New Zealand;
- You must be authorised to use the Entity's credit card used to make the purchase; and
- References in these terms and conditions to "you" include the Entity (as defined above).
By purchasing from the Website, you warrant that you meet the relevant conditions of this clause 2.4.
2.5 As a condition of use of the Website, you agree:
- Not to disrupt activity online;
- To ensure that the Website, Services and Products are not used for any illegal activity or which may expose us to potential litigation including (but not limited to) copyright and trade mark infringement, the publication of obscene or defamatory information or material, information or material that infringes the rights of third parties, or is likely to be misleading or deceptive or otherwise breaches the Fair Trading Act 1986;
- Not to use anybody else's computer system, communications services or data, including by hacking or by attempting to circumvent user authentication or other security measures;
- Not to post or use any software or device which may facilitate a continued connection or degrade or impede the service of another user, such as pinging, mail bombs or war dialling;
- Not to run network scanning software or use open relay to distribute messages; and;
- Not to introduce anything harmful or destructive (such as viruses, worms, Trojan horses, time bombs or bots) to, or interfere in any way with B+W's or anyone else's computer system or communications services.
3 APPLICATION FOR SERVICES/ORDERFOR PRODUCTS
3.1 You must order the Products and/or apply for the Services in accordance with the instructions on the Website.
3.2 Receipt of an electronic application or verification of application does not constitute acceptance of your order, nor does it signify confirmation of our offer to supply.
3.3 We have the absolute discretion to decline your order/application for any reason and/or to refuse to provide any Service/sell any Product for any reason whatsoever without reference to you. We may require the provision of additional information/verifications before accepting your order/application. All orders are subject to availability of Products.
4.1 You will pay us the price for the Products by authorising us to charge any one of your Nominated Payment Authorities.
4.2 You must pay us for the purchase of the Products in full (including those costs described in clause 5.2) by authorising us to charge your Nominated Payment Authority prior to the date on which we dispatch the Products to you from our warehouse.
4.3 All payments for Products are payable in New Zealand dollars.
4.4 If your credit card is declined by its financial institution, delivery of the relevant order will not be made. We reserve the right to refuse to accept payment from any particular Customer by credit card for any reason whatsoever.
5.1 The price for any Product shall be the price quoted on the Website at the time you submit your order, and, where relevant, for delivering the Products to you. No adjustment to the price will be made if the price for the Product changes between the
time you submit your order and delivery.
5.2 Except where specifically stated otherwise, our prices do not include delivery charges (refer clause 8 for the details of those charges).
5.3 We have the absolute right to withhold delivery or cancel an order where we have any doubts whatsoever about your credit worthiness.
5.4 We may vary the prices posted on the Website at any time without notice to you.
6.1 We may add new Products and Services, cease to supply Products and Servicesand change Products and Services at any time without notice.
6.2 The terms and conditions relating to your use of all Services are those specifically set out in the Other Agreements. Where there is any inconsistency or conflict between these Website terms and conditions and those set out in the Other Agreement(s) then the terms and conditions of the Other Agreement(s) will prevail.
7 TITLE AND RISK
7.1 Orders are not binding on us until accepted by us. Should we not accept your order then all monies that you have paid will be refunded to you.
7.2 We remain the owners of the Products we supply to you including any proceeds from the sale of the Products until you have paid in full all amounts that you owe to us.
7.3 Products are at your risk as soon as they have been dispatched from our warehouse and even though ownership of the goods may not have passed to you. We will not be liable to you if goods are lost or damaged in transit. You are solely responsible for the accuracy of your nominated delivery address in New Zealand.
8 FREIGHT & DELIVERY
8.1 We will at your cost, freight the Products to you by whatever method and route we consider to be the most expedient. For details of the various freight options available to you please see our Delivery Options.
8.2 If we have specified a delivery date, we will try and deliver the Products to you by that date. However:
- We will be entitled to deliver the Products to you after the stated delivery date or cancel the contract without being liable to you in any way if the delay in delivery is in respect of causes outside our control or we are for any reason unable to deliver the Products to you;
- Where you fail or refuse to take delivery of the Products, the Products will be left at the delivery address you have nominated and be deemed to be delivered at that point in time. We will not be liable to you in any way for loss or damage following delivery.
9 RETURN OF PRODUCTS
You may return Products to us in one of the following situations:
9.1 Where the Products are faulty or damaged or if we deliver the wrong Products. In this situation we will at your option either:
- replace the Products if available; or
- give you a full refund on your Nominated Payment Authority.
9.2 All Products returned in accordance with clause 9.1 must be returned in their original condition and packaging, together with the invoice and packing slip which accompanied the Products.
9.3 If you wish to return a Product to us, please follow the following procedure:
- Make sure you fill out the return slip which we will provide to you on request; and
- Wrap the Product securely and send it to us in a parcel post pack or, if the Product is too large, then a sturdy carton, together with the invoice which accompanied the Product and the return slip to the address on the return slip.
9.4 You must also provide us with the following information:
- The reason for the return of the Product which must be one of the following:
- the Product received is not that which you ordered;
- the Product(s) are faulty or damaged.
- In the case of faulty or damaged Products only, the method of type of refund you require, which must be either one of the following:
- Full refund, in which case you must provide us with your credit card details;
- Replacement Products.
10 WARRANTY & GUARANTEES
10.1 Subject to the specific terms of these Terms and Conditions we guarantee:
(a) That every transaction involving your credit card will be encrypted using appropriate encryption software including not less than 128 bit SLL encryption;
10.2 This clause 10.2 shall apply where you are a consumer under the Consumer Guarantees Act 1993:
- If you purchase the Products for business purposes you agree that the Consumer Guarantees Act 1993 does not apply;
- Nothing in these Terms and Conditions is intended to have the effect of contracting out of the provisions of the Consumer Guarantees Act 1993 except to the extent permitted by that Act, and these Terms and Conditions are to be modified to the extent necessary to give effect to that intention.
10.3 All representations or terms (including any condition or warranty expressed or implied by law, statute or otherwise) not expressly included in these terms and conditions are hereby expressly excluded. You acknowledge that you have not relied on any representation or statement made by us other than the express provisions of these Terms and Conditions.
10.4 The Content, material and information provided on the Website is supplied upon the condition that you will make your own determination as to its fitness or suitability for your purposes prior to use of the Website and/or any Products you decide to acquire. We will not be liable for any damages, losses or liabilities, including but not limited to, any failure of performance, error, omission, interruption, defect, delay in operation of transmission, computer virus, or line failure. We will not be liable for any damages, loss or injury, including, but not limited to special or consequential damages that result from the use of or the inability to use, the materials in this Website and any Products.
10.5 Under no circumstances will we be liable to you or any third party claiming through you for any loss of profits, contract, indirect or consequential loss of any kind whatsoever, nor for any special, indirect, consequential or punitive damages.
10.6 Where you supply the Products in trade to a person acquiring then for business purposes, you agree that it will be a term of sale with that person that the Consumer Guarantees Act 1993 does not apply in respect of the Products.
10.7 Nothing contained in the Website shall be construed as a recommendation to use any Product.
11 COPYRIGHT & USE OF MATERIALS
11.1 Unless otherwise specified, we are the owner or possess rights in respect of the copyright in all property rights in the Content and materials appearing on the Website, including the text, site design, logos, graphics, icons, button icons, audio clips, software and images, as well as the collection, assembly and arrangement of those items. You are granted permission to electronically copy and to print hard copy portions of the Website for the sole purpose of ordering Products with the Website or using the
Website as a shopping resource. Any other use of materials on this site, including reproduction for purposes other than those noted above, modification, distribution, or republication, without our prior written permission is strictly prohibited.
11.2 You may use the Content of the Website only for the purposes of reading and shopping at the Website, or placing an order and for no other purpose. All rights not expressly granted herein are reserved. Any unauthorised use of the Content appearing on the Website may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.
11.3 Material from the Website and other sites owned, operated, licensed or controlled by us or any of our related, affiliated, or subsidiary companies may not be copied, reproduced, distributed, modified, published, uploaded, posted, or transmitted in any
way, without our prior written consent.
11.4 Modification, distribution, or use of the material contained in our Website for any purposes other than for your personal use directly violates our intellectual property rights. The material contained within this site is copyrighted and protected by world-
wide copyright laws and treaty provisions, even if it is not stated to be so protected and is provided for lawful purposes only.
11.5 In order for you to use our Products, it may sometimes be necessary for us to download configuration or other software to your mobile device. This may happen automatically when you have requested that one of our Products be supplied to you. You acknowledge and agree that:
- Your right to use such software is limited to being a mere licensee (not owner) upon license terms and conditions as may be notified to you by us or one of our third party suppliers at the time the software is downloaded to your mobile device;
- If these licence terms are not notified to you and are not contained anywhere in the software which is downloaded to your mobile device, then you will receive a personal, revocable and non-transferable licence to use that software solely for use in conjunction with the relevant Product and for no other purpose. Any reverse engineering, decompilation, reproduction or redistribution of the software or any component of it is expressly prohibited;
- Your use of the software will be free of charge unless we notify you that there is a charge. We may do this either by displaying the charge on our website or in any other terms and conditions which apply to that software.
11.6 You acknowledge that Black & White IP Limited (BWIL) possesses rights and entitlements in relation to the Website and the Content and that your duties regarding these Terms and Conditions are also owed to BWIL. You agree that all of your obligations, duties, liabilities, restrictions and covenants under these Terms and Conditions confer a benefit on BWIL and are enforceable against you at the election of BWIL. For the avoidance of doubt it is agreed and declared that BWIL can and may enforce its rights under the provisions of the Contracts (Privity) Act 1982 as if it were a contracting party to these Terms and Conditions.
12.1 The information and services on the Website are provided for guidance only and are presented in good faith and believed to be correct as at the date on which they are prepared. Nothing contained in the Website should be construed as a recommendation to use any particular Product. We make no warranties or representations about the accuracy or completeness of this Website, its content or the content of any Web Site "hypertext linked" to or from this Website. To the extent permitted by law, B+W reserves the right, but makes no binding commitment, to update or correct the terms and conditions and information contained in the Website at any time, without notice.
12.2 You shall also ensure that the Products are not used for any purpose for which they are not suitable and shall solely be responsible for using all necessary skill and care in handling, storing and using the Products.
12.3 Products must be used strictly in accordance with the instructions and directions provided. You must read the packaging carefully. It has important information and instructions relating to the use of the Products. Please note that in order to obtain the
full benefits from the use of the Products they must be used strictly in accordance with the instructions and directions provided.
12.4 All handsets are sold exclusively for use with a SIMcard. They may be locked to the B+W network and, unless unlocked, may not be used with another service provider's SIMcard.
12.5 Although we endeavour to accurately display and describe the colours of the Products, we do not guarantee the colour of any product delivered to you will exactly match the colour of any image of that Product on Website (as the colours displayed on your computer system or in printed form will vary).
13 APPLICABLE LAWS
13.1 This Agreement shall be governed by and construed in accordance with the laws of New Zealand and shall be subject to the exclusive jurisdiction of the New Zealand Courts.
13.2 Except as otherwise described, all materials on the Website are made available only to provide information about the Website, and the Products and services to be supplied on the Website. The Website is controlled and operated by us, from our offices within New Zealand. We make no representation or warranty that the materials in this Website are appropriate or available for use in other locations, and access to them from territories where their contents are illegal is prohibited. We accept no liability
whatsoever to you in respect of such matters.
13.3 If you choose to access the Website from outside of New Zealand, you are solely responsible for compliance with applicable local laws and we make no warranty or representation that the information complies with any laws, rules, regulations, procedures, codes or governmental directives, outside of the jurisdiction of New Zealand. You indemnify us absolutely in respect of any liability arising for us as a result of your non-compliance.
13.4 You may not use or export the materials in the Website in violation of New Zealand laws and regulations.
In connection with the supply of Products and services pursuant to the Website, we use a substantial number of trademarks and service marks on the Website. These trademarks and service marks may not be used or reproduced without our prior written
15.1 If any provision of these Terms and Conditions are held by any competent authority to be invalid or unenforceable in whole or in party, the validity of the other provisions of these Terms and Conditions and the remainder of the provisions in question shall not be affected thereby.
15.2 The headings to the clauses of these Terms and Conditions are for ease of reference only and shall not affect the interpretation or construction of these Terms and Conditions.
15.3 If the performance of our obligations under these terms and conditions is prevented by reason of "force majeure" (which shall include prevention occasioned by fire, casualty, accident, act of God, natural disaster, act of war, any law, order, proclamation,
regulation, demand or requirement of any government or government agency, strikes, labour disputes, shortage of labour or lack of skilled labour, shortage or unavailability of Products delay in performance, electricity or communications failures, or other causes
whatsoever (whether similar to the foregoing or not) beyond our reasonable control of) we shall be excused from such performance to the extent of such prevention.
15.4 From time to time we may vary these terms and conditions without notice. Please check these terms and conditions periodically for changes. Your continued use of the Website after the terms and conditions have been changed indicates your acceptance of those changes.