These terms of service constitute the agreement between Orca Communications Limited (OrcaCom, we or us) and the end user (you, your or customer) of Orca Communications services. By activating or using any of the services, you represent that you are of legal age to enter this agreement and that you have read and understand the terms and conditions of this agreement. Additional terms may apply to your use of some of our services, if there is any conflict between these terms and any additional terms, the additional terms will prevail.
1.1 In November 2020, the Commerce Commission published the 111 Contact Code to ensure that vulnerable consumers can contact emergency services in the event of a power failure at their premises. The Code requires retail landline service providers to inform customers which telecommunications technologies and devices may not work in the event of a power failure, how they can protect themselves, and where to go for support.
1.2 What Services are affected?
Fibre and fixed wireless will not work in the event of a power failure unless you have a backup power supply, so if your landline is supplied over these technologies you will not be able to use it to contact the 111 emergency service during a power cut. Certain devices at your premises, such as cordless phones and medical alarms without an inbuilt battery, may also not work in the event of a power failure without a backup power supply, so you may not be able to use them to contact the 111 emergency service during a power cut. We recommend keeping a charged mobile phone on hand to ensure you have means of contacting the 111 emergency service in the event of a power failure at your premises. Please be aware that the 111 code does not cover any medical services and/or alarms - such as those provided by St John - you may have installed in your home. Please talk to the provider of these services if you have any concerns about their reliability.
1.3 Who is a vulnerable consumer?
The code defines a vulnerable consumer as someone who is at particular risk of requiring the 111 emergency service and does not have a means for contacting the 111 emergency service that can be operated for the minimum period in the event of a power failure.The code defines a vulnerable consumer as someone who is at particular risk of requiring the 111 emergency service and does not have a means for contacting the 111 emergency service that can be operated for the minimum period in the event of a power failure.
1.4 How do I get my account listed as Vulnerable?
You can apply to be listed as a vulnerable consumer if someone at your premises relies on your landline connection for medical, safety, or disability reasons by emailing us at this address: support@orcacom.co.nz. If your application is successful we will send you an appropriate means of contacting the 111 emergency service in the event of a power failure at your premises at no cost. We will not deny or cease supply of a retail landline service on the basis that we know, or suspect, a consumer is, or may become, a vulnerable consumer. Please email us at support@orcacom.co.nz if you have any concerns about the information provided, or if you have any sort of complaint about this process.
2.1. We, or a carrier or network operator nominated by us, will supply the services that you subscribe to on the basis of the terms set out in this agreement. In the course of supply we will:
i) use reasonable endeavours to ensure that services are supplied reliably and consistently (but we do not guarantee that the services will operate uninterrupted without any faults);
ii) if faults do occur, use reasonable endeavours to ensure that they are remedied as quickly as reasonably possible.
2.2. We are not responsible for any losses suffered by you as a result of:
i) any interruption of services caused by an event outside of our reasonable control, including any restrictions on the service by a carrier; or
ii) suspension of services for breach of any of the terms of this agreement;
iii) your use of the services other than in accordance with this agreement.
2.3. You acknowledge that we may suspend or restrict your access to the services at any time when we consider it necessary to protect our own network or that of any third party or we believe that you have breached any of our terms and conditions.
2.4. Charges for services will continue to be payable during a suspension. If services are suspended because of your breach we may charge you a reconnection fee.
2.5. EMERGENCY SERVICES - 111 DIALING. You acknowledge and understand that if there is a service outage for ANY reason, such outage will prevent ALL Service, including 111 dialing. Such outages may occur for a variety of reasons, including, but not limited to those reasons described elsewhere in this Agreement. OrcaCom strongly recommends that you keep another form of telephone (mobile or landline) to use during those periods when the service is not available. You acknowledge and understand that OrcaCom's liability is limited for any Service outage and/or inability to dial 111 from your line or to access emergency service personnel, as set forth in this document.
2.6. You accept that OrcaCom might not be compatible with non-voice communications equipment such as alarms, fax machines, cable and medical alarms.
2.7. You agree that you will at all times abide by the requirements of OrcaCom Acceptable Use Policy as published on our website and amended from time to time.
2.8. You acknowledge that we may be obliged to provide assistance to law enforcement agencies in respect of your acquisition or use of the Products and Services and that you will not make any claim against us in relation to that assistance.
3.1. In return for us providing these Products and Services to you, you must pay us the relevant fees, if we increase any rates we will give you as much notice as reasonably possible. The latest rates are available on our website www.orcacom.co.nz. If you do not agree to pay those increased fees you must, within 20 days of receiving that notice from us notify us in writing or by email that you do not accept the increase. Upon receiving that notice from you, unless agreed by us, your right to use the subject Products and Services will cease. In the event that no other Products and Services are then the subject of our agreement, the Agreement will immediately terminate. If we do not receive any notices from you in accordance with this clause and you continue to use the Services after 20 days from our initial notification, you agree that you are deemed to have consented to the increase in Fees.
3.2. All invoice payments must be made using OrcaCom’s Direct Debit service unless a specific alternative payment method is agreed. Free local calls in accordance to clause 4.3 are only available if OrcaCom’s Direct Debit facility is used for regular monthly invoice payment.
3.3. Despite the provisions of this clause:
i) You are solely responsible for the use of the Products and Services and for all payment of any Fees arising from the use or provision of the Products or Services, whether or not the user had your authority.
ii) Records held and logging procedures adopted by us in relation to usage by or provision of your Products and Services are prima facie evidence that you have used or ordered that Product and Service as indicated.
iii) We will endeavour to bill you for your use or our provision (as the case may be) of Products and Services as follows:
a) in advance for recurring charges
b) in arrears for variable usage charges
c) where you agree to pay us by credit card or direct debit, your credit card or bank account will be debited the due amount on the due date stated on your invoice;
d) if you have arranged a credit account facility with us, payment will be due on the due date stated on the invoice via electronic bank transfer to the account number indicated on the invoice. If your account is not paid within 10 days of the due date, we reserve the right to charge a late payment fee on any overdue amounts on an invoice at the rate of 5% per month of the amount overdue, calculated from the due date to the date of actual payment in full. You agree that this late payment fee is a genuine pre-estimate of damage we will suffer as a result of your late payment and is not a penalty.
3.4. You must pay Goods and Services Tax and any taxes, duties, stamp duties, imposts, levies or government charges relating to the Agreement or the supply or usage of the Services or Products.
3.5. If your account remains unpaid in part or in whole for any period exceeding the due date, we reserve the right to suspend or terminate your access to the products and/or services at any time at our discretion. If your account remains unpaid for a period exceeding one calendar months from the due date we reserve the right refer your information to a debt collection agency or credit reference agency without notice to you.
3.6. You are responsible for the cost of any communication expenses you incur to access the Products or Services.
3.7. Despite any of the provisions of this clause, in the event that you fail to pay your accounts by the due date and we refer your failure to any debt collection agency or other like body, in the event you seek to reconnect to the Products and Services, you acknowledge and agree that we may require that you initially pay such Fees as represent two months in advance for the Products and Services to be acquired by you. Such Fees are payable at the time of re-connection of your Products and Services.
3.8. If you have a genuine dispute in relation to amounts we have charged you, you must pay the undisputed charges and notify us immediately you become aware of any disputed charges. You must give us full details for the reason of dispute as well as evidence of the grounds of dispute. We will investigate the issue and you agree to comply with our good faith decision on any disputes.
3.9. You are responsible for your account and must pay our charges regardless of whether you or someone else uses those services.
3.10. No refunds will be provided for any unused credit balances. A credit balance for an account that has been inactive for 6 months will be lost.
3.11. E-Billing. You consent to receive your bill from us, electronically. Our bills to you shall be sent by email via our E-billing service, and you must provide us with a valid and up-to-date email account. The accuracy of that email address is entirely your responsibility. You shall remain fully liable for any bills for which notification has been sent to your email address. We reserve the right to modify the E-billing service at our discretion. You will remain fully responsible and liable to pay any bills of which notification has been sent to your email address regardless of whether or not you access that email account and read the relevant email or are disconnected from your email account for any reason. We cannot guarantee uninterrupted and/or reliable access to the E-billing service and make no guarantees whatsoever as to its operation, availability, functionality, that it will be free of error or disruption or otherwise.
4.1. You must not use our services (or permit our services to be used) in a way that: breaks any laws or infringes anyone’s rights or in a way which is malicious, obscene or offensive.
4.2. You agree to provide us with accurate and correct information so we can provide you with the necessary services or contact you if required from time to time.
4.3. Any free local, national and worldwide phone call minute charges, un-metered Internet data plans on specifically agreed plans, as well as remote system support services are available on the basis of reasonable use. We may apply our reasonable use policy where in our opinion the use of these services is excessive and/or has exceeded reasonable use by reference to average customer profiles and estimated customer usage of the Services. If your usage of the Services materially exceeds estimated use patterns over any month, then your usage will be excessive and/or unreasonable. If your usage is excessive and/or unreasonable, we may:
i) monitor and investigate your usage; and
ii) suspend and/or withdraw the Service; or
iii) charge our standard rate for additional data or calls.
4.4. You must keep secure any password or PIN number which is used by you to access our services and ensure that is it not disclosed to any unauthorised person. You must also change your password or PIN number if we ask you to do so.
4.5. If your service is cancelled, terminated or reallocated you will relinquish and discontinue use of any numbers, voicemail access numbers and/or web portals assigned to you by Orca Communications.
5.1. You agree that in using the Orca ultra-fast broadband service (UFB), you will be bound by the terms and conditions of the Local Fibre Company’s End User Terms (which can be found at http://www.crownfibre.govt.nz/crown-partners/). The Local Fibre Company End User Terms relate to, amongst other things, the provision (including installation) and use of that part of the Local Fibre Company’s network which is located on the customer’s premises.
5.2. In order to install the ultra-fast broadband at your property, land excavation may be required. The extent of restoration will depend on the policy of the Local Fibre Company. Generally, the Local Fibre Company will reinstate like for like, e.g. concrete where concrete has been used, but the Local Fibre Company do not guarantee to match surface finish and reinstatement will be limited to the area where the trench has been dug. The customer will be responsible for any further costs associated with the additional restoration.
5.3. The following equipment will be installed at the property to allow ultra-fast broadband services to be used:
i) The External Termination Point, which will remain the property of the Local Fibre Company;
ii) The Optical Network Terminal, which will remain the property of the Local Fibre Company; and
iii) Orca Fibre Enabled Router or Residential Gateway which will remain the property of Orca Communications Ltd unless purchased.
5.4. If you change to ultra-fast broadband, we cannot guarantee that you will be able to move back to DSL based Broadband. Any change in service may be subject to installation charges and an early termination fee will apply if you terminate before completion of the minimum contract period.
5.5. A technician may be need to visit you premises to carry out installation work, which may require internal access to your premises. A suitable time will need to be scheduled for the technician to visit the premises. The fibre voice service is reliant on the ONT having power to it and in the event of a power cut, the fibre voice service (and broadband) will no longer work. If you are reliant on phone services for medical or important applications (e.g. emergency services) they should consider whether a fibre based service is appropriate to your needs. We do not guarantee that the fibre voice service will support all models of low speed analogue device (for example: home alarms, personal medical alarms, low speed modems, sky set top boxes, faxes, low speed modems, eft-pos). It is your responsibility to contact your relevant service provider to find out whether such services are compatible with fibre. You should not sign up for ultra-fast broadband if your provider cannot guarantee compatibility. We are not liable to you in relation to the foregoing.
6.1. We may from time to time supply Equipment to you in connection with the Services. Unless agreed otherwise, you will have no ownership rights to any equipment supplied by us.
6.2. You must not damage or interfere with the Equipment.
6.3. If the Equipment is lost or damaged while located on your premises, you shall pay the charges of us repairing or replacing it as required.
6.4. Upon termination of this agreement, you shall return all Equipment to us within 30 days or you shall pay the cost of the Equipment, as determined by us.
6.5. Personal Properties Securities Act 1999 (PPSA). If we provide any equipment to you, you agree that you will not sell, lease, dispose of, or allow any other person to take a security interest in the equipment. Furthermore, you agree that where the equipment has a total value in excess of $1,500 we can register a financing statement on the Personal Property Securities Register (PPSR) to reflect our interest in the equipment. Where we exercise our right to register a financing statement, you also agree to provide us with such information as we reasonably request to enable us to register a financing statement, inform us immediately in writing if you intend to change your name, address or contact details, and to the extent permitted by law you waive your rights under Part 9 (Enforcement of Security Interests) of the PPSA.
7.1. Any phone numbers that we allocate to you do not become your property and do not constitute any transfer of property rights.
7.2. If we need to change your number we will send you notification by email and give you as much notice as possible.
7.3. We can withdraw or terminate any number at any time without liability, particularly if you do not comply with the instructions for use provided by Orca Communications Limited.
7.4. You may be able to port your Orca Communications 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.
7.5. If you port an Orca Communications number to a new service provider prior to the expiration of you agreement term, termination fees will become payable in accordance with clause 8.2 (viii).
7.6. 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.
8.1. These Terms and Conditions will commence on the date we accept your application, any individual product or service minimum terms start on the date the individual product or service is ready to use.
8.2. These Terms and Conditions will continue to apply indefinitely unless terminated under one of the following events in which case only outstanding payments will be due at the end of the required thirty (30) day notice period:
i) Upon the expiration of the initial or any successive term by you notifying us at least thirty (30) days prior to the expiration of the then current term that you desire to terminate the Agreement. the date we accept your application or
ii) If OrcaCom’s service cannot be reasonably used for the purpose of making and receiving telephone calls and is not caused by service failures beyond our reasonable control in accordance with clause 2.2.
iii) By us notifying you with at least thirty (30) days notice that we desire to terminate the Agreement, with or without cause.
iv) Despite the above paragraph, we may terminate the Agreement immediately in relation to any or all Products and Services provided by us to you if:
a) in our sole discretion we deem that you are in breach of these Terms and Conditions and/or the Agreement and have not remedied such breach within 10 days of being notified of such breach by us;
b) If a receiver, provisional liquidator, administrator or other like person is appointed over any of your undertakings or assets or if you enter into arrangement with any of your creditors or any class of your creditors or you become insolvent or otherwise are unable to pay your debts when they fall due.
c) If in our sole discretion you have contravened our Acceptable Use Policy.
d) you resell any of our services
e) you do not use the service sensibly and within our reasonable use guidelines set out in 4.4
v) If you wish to terminate the Agreement following notification of a modification to these terms and conditions in accordance with clause 7 below within 30 days of receiving notification.
vi) If the Agreement is terminated in accordance with clause 3.
vii) If your account is unpaid and overdue in accordance with clause 3.5.
viii) Where you desire to terminate the agreement prior to the expiration of the initial term, by you porting any Orca Communications phone number to a new service provider or notifying us with at least thirty (30) days notice provided that you pay us the Fees which would have been due until the expiration of the initial term, such fees to be calculated according to the formula:
(BxC)+((B/A)xD)+(BxE) = Termination Fees where:
A = Total contract term
B = Months remaining in contract term
C = Total contract monthly fees
D = Waived setup fees
E = Total contract average monthly usage charges including call charges, phone number rental and data charges
ix) On termination of the agreement, we will cease providing the product or pervice to you, and all amounts which you owe to us will immediately become due and payable.
9.1. We can change these terms from time to time by giving you as much notice as reasonably possible. We will inform you of any change to our terms by emailing you or by providing relevant information on our website. The latest terms and conditions are available at www.orcacom.co.nz.
10.1. 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; and for any equipment or network failures.
10.2. 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.
10.3. 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.
10.4. 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.
10.5. The parties acknowledge that the services are provided for a business purpose and accordingly the provisions of the Consumer Guarantees Act 1993 are specifically excluded.
11.1. To the extent that any of our Products or Services contain any software that we supply to you, we license that software to you on a non-exclusive, non-transferable basis for the term of the Agreement, solely for your use of that Product or Service.
11.2. You must use the software only on such equipment as we may designate for its use. We are not responsible for the installation or support of the software. You must use the software in accordance with any directions we provide to you from time to time.
11.3. We or our suppliers retain ownership of the software at all times, whether in its original form or as modified. You must not, in whole or in part, copy, attempt to reverse-engineer or modify, or attempt to combine or incorporate in any other program or system, the software without our written consent.
11.4. You must protect the software and related documents at all times from unauthorised access, use or damage.
12.1. Please see our privacy policy here
13.1. The content of any Backup Data in any form provided to OrcaCom for use with the Services is your responsibility and OrcaCom does not control, verify, or endorse the content of such Backup Data.
13.2. You hereby grant OrcaCom a license to use, operate, copy, transmit, distribute, store and cache Backup Data solely to provide the Services to You. You represent and warrant that:
i) You have all necessary rights to grant the foregoing license to Backup Data and that OrcaCom’s exercise of such rights shall not violate the rights of any third party or any applicable Laws;
ii) all Backup Data about individuals has been collected in accordance with your privacy guidelines and applicable Laws and that your privacy guidelines comply with all applicable Laws; and
iii) You have obtained all consents required by the applicable Laws to transfer all of the Backup Data to OrcaCom for storage. You acknowledge that the Services include features and functionality that backs up, replicates, and/or transfers electronic data and that these processes require the copying of such data, which may include digital files, software programs, and other data that may be protected by third-party intellectual property rights, such as copyrights. The laws and regulations governing the use and copying of such data vary by jurisdiction.
13.3. You understand and agree that OrcaCom has no knowledge concerning the data contained in the Backup Data that is created, replicated, or transferred through use of the Services. Therefore, OrcaCom has no knowledge of the third-party intellectual property rights applicable to the data contained within the Backup Data.
13.4. You represent and warrant that use of the Service does not violate applicable international, national, state, regional or local laws or regulations governing the backup, copying, or transfer of the data contained in Backup Data, and you further agree to defend, indemnify, and hold OrcaCom harmless against costs, expenses, and liabilities arising from any claim that its use of the Services to backup, copy, or transfer data violates third-party intellectual property rights.
13.5. Notwithstanding any terms to the contrary in this Agreement, OrcaCom may disclose Backup Data:
i) as required by any applicable Law; or
ii) in response to a compulsory legal process.
13.6. Notwithstanding any terms to the contrary in this Agreement, if OrcaCom receives a notice from you requesting the deletion of Backup Data during the Trial Term or the Standard Term, OrcaCom will use commercially reasonable efforts to promptly delete such Backup Data.
13.7. OrcaCom is not responsible to you for the loss of or unauthorized access to Backup Data or the unauthorized use of the Services. You are solely responsible for:
i) the use of the Services by any employee of yours or any person to whom you have given access to the Services; and
ii) any person who gains access to Backup Data or the Services as a result of your failure to use reasonable security precautions (even if such use was not authorized by you).
14.1. We can change these terms from time to time by giving you as much notice as reasonably possible. We will inform you of any change to our terms by providing relevant information on our website. The latest terms and conditions are available at www.orcacom.co.nz.
15.1. Orca Communications will communicate with you primarily via email. Notices to you will be sent to the email address specified by you during sign up for service or as subsequently specified by you as your contact email address. We may also obtain personal information from your use of our services.
15.2. If your contact email address changes you must advise us of the new details as soon as possible.
15.3. You agree that sending a message to your contact email address is the agreed means of providing notification. Notifications include information about the service, billing, changes to services and other information.
15.4. You will be deemed to have received a notice sent by any method two days after we send it.
16.1. You must keep any information we provide to you, which is marked confidential or which you ought reasonably to know is treated by us as confidential, from disclosure to any third party and use that information solely for the purposes of using the Products or Services. You consent to us obtaining urgent interlocutory relief to restrain any breach or anticipated breach by you of these confidentiality obligations.
16.2. You acknowledge that all intellectual property rights obtained or provided by us that are directly related to the provision of the Products and Services are and shall remain our sole property and you shall do all such things as are necessary to perfect our title to these intellectual property rights. You must return or delete from media, all those intellectual property rights at our request.
17.1. These terms are to be interpreted in accordance with the laws of New Zealand. Any dispute regarding the provision of our services under these terms is to be determined by New Zealand courts.
17.2. We may assign or transfer our rights and responsibilities under these Terms and Conditions and the Agreement to any person. We will give you written notice in advance if we intend to do this.
17.3. We may subcontract the performance of any of our responsibilities under these Terms and Conditions and the Agreement to any person.
17.4. You may not assign or transfer any of your rights or responsibilities under these Terms and Conditions and Agreement to any person without our prior written consent. This consent will not be unreasonably withheld. A delay in exercising any right is not a waiver of that right. A failure to exercise a right on any occasion does not prevent any subsequent exercise of that right.
17.5. We will send relevant invoices and notices, if and as required under this agreement to the preferred contact address last notified to us by you.