SKY Television Commercial Terms & Conditions
In this agreement the masculine gender shall include the feminine gender and the neuter and vice versa and the following words and phrases shall have the following meanings unless the context clearly indicates otherwise:-
1.1 Antenna System:
All related antenna, cabling and associated electronic equipment, other than the Decoder and the Smart Card, needed to receive and distribute the SKY Signal within the RUD.
The electronic device or devices authorised by SKY and associated leads and equipment in the RUD which unscrambles the SKY Signal.
SKY Network Television Limited and its successors and assigns.
1.4 SKY Equipment:
All and any equipment provided by SKY (whether directly or indirectly) and installed at the RUD including the Smart Card and the Decoder but excluding the Antenna System.
1.5 SKY Signal:
The scrambled transmissions of television channels and programmes broadcast or transmitted by SKY by whatever means for presentation to persons in New Zealand who use a Decoder, or any part of those transmissions.
1.6 Smart Card:
The card or cards issued by SKY to the Subscriber to unscramble the SKY Signal.
The Subscriber whose name appears on the face of this agreement.
1.8 Selected Service:
The images on the television screen together with the accompanying sound produced by receiving the SKY Signal for the SKY subscription television services chosen by the Subscriber (as recorded on the face of this agreement or as otherwise agreed with SKY from time to time) which is achieved by using the SKY Equipment at the RUD in conjunction with the Antenna System and a standard operational television set or sets, but excluding any special event programming.
1.9 Restricted Unit Dwelling (RUD):
The restricted unit dwelling identified on the face of this agreement.
2. SALE OF SUBSCRIPTION SERVICE
SKY agrees to provide the Selected Service to the subscriber for the purposes of being received by the number of television outlets at the RUD recorded on the face of this agreement.
3.1 The Subscriber hereby authorises SKY to use information about the Subscriber supplied to or otherwise collected by SKY from time to time for the purposes of marketing its products and services to the Subscriber, market research, credit control and debt collection (which includes logging overdue debts and/or liquidated damages owed to SKY with credit reference agencies), and any other purposes reasonably related to its pay televisionbusiness (which may include disclosure to third parties). The Subscriber understands that, if he is a natural person, he has certain rights under the Privacy Act 1993 to access and seek correction of any information held about him, and acknowledges and agrees that all such information may be held by Sky for such period both before and after termination or cancellation of this agreement as SKY in its absolute discretion considers appropriate.
3.2 The Subscriber authorises any person or company to provide SKY with such information as it may require in response to its credit and/or employment enquiries and also to furnish to any third party details of this agreement and any subsequent dealings that the Subscriber may have with SKY as a result of this agreement being entered into.
4.1 The initial term of this agreement will be that which appears on its face, commencing from the date that the Selected Service can be received by the Subscriber. Following the expiration of the initial term, this agreement will be automatically renewed for successive periods, each successive period being equal to the initial term (each a "Renewal Period"), commencing upon the date of expiration of the initial term or the preceding Renewal Period, as applicable.
4.2 Either party may cancel this agreement without cause effective at the expiration of the initial term or any Renewal Period by giving the other at least 30 days written notice of its intention to do so.
5. SPECIAL EVENT PROGRAMMING
SKY may from time to time offer to the Subscriber special event programming for which SKY may charge an additional fee. The Subscriber will be requested to advise SKY that he wishes to receive the special event programming or the Subscriber may also be able to accept such an offer by activating the Decoder to decode the special event programming in question.
6. FEES, TAXES AND CHARGES
6.1 The Subscriber shall pay to SKY:
(a) monthly in advance, on the due date for payment set out in SKY's tax invoice, the monthly fees for the provision of the Selected Service to the number of outlets referred to in clause 2 and for the supply of SKYWATCH (if supplied), which fees may from time to time be varied by SKY in its discretion on giving 30 days written notice to the subscriber;
(b) on demand, GST and any other applicable taxes, levies or duties which may be payable on payments under this agreement;
(c) on demand, a reconnection fee if the Subscriber requests SKY to reinstate the Selected Service after SKY has disabled the Decoder due to non-payment or late payment of any moneys due to SKY by the Subscriber;
(d) on demand, a fee for each dishonoured cheque and direct debit;
(e) if the Subscriber accepts any offer for special event programming, SKY's additional fees as and when notified to the Subscriber from time to time;
(f) on demand, a collection fee where Sky repossesses the SKY Equipment pursuant to clause 18(b)(ii);
(g) costs incurred for the collection of any overdue debts.
6.2 Interest at a rate equal to four per cent above SKY's bank indicator lending rate from time to time calculated on a daily basis shall be payable on any monies outstanding under this agreement from the date payment is due until the date payment is received by SKY but without prejudice to SKY's other rights or remedies in respect of the Subscriber's default in failing to make payment by the due date.
7. FAILURE TO BROADCAST SKY SIGNAL
If for any reason the SKY Signal of the Selected Service or any channel comprised therein is not broadcast for a continuous period greater than 24 hours, SKY undertakes upon request by the Subscriber to credit the Subscriber with that portion of the monthly Selected Service fee or the relevant part thereof covering the period during which the SKY Signal or any channel comprised therein was not broadcast. The placement of the screen messages does not amount to a failure to broadcast and the Subscriber shall remain liable to pay the fee for the Selected Service during the period of any screen messaging.
8. RIGHT TO SUSPEND CANCEL OR ALTER SERVICE
SKY shall be entitled at any time without prior notice or any liability to the Subscriber:
(a) to cancel or suspend the whole or any part of the Selected Service and/or to substitute in place of the Selected Service or any part thereof alternative programming or special event programming;
(b) to alter the packages of subscription television services offered by SKY (in which case the Subscriber must select one of the new packages); and/or
(c) to alter the mechanism by which SKY transmits or broadcasts the SKY Signal and/or the format of that signal (in which case the Subscriber shall modify the Antenna System to the extent necessary in order to receive the SKY Signal).
9. BAILMENT OF SKY EQUIPMENT
9.1 Ownership of the SKY Equipment will at all times remain with SKY and the Subscriber must not:
(a) remove the SKY Equipment from the RUD without the prior written consent of SKY;
(b) sell, lease, dispose of, lend or otherwise part with possession of the SKY Equipment;
(c) use the SKY Equipment for any purpose other than facilitating the viewing of the Selected Service at the RUD in accordance with the terms and conditions of this agreement;
(d) deface, obliterate or remove any label or mark which identifies the ownership of the SKY Equipment; or
(e) do any other act which may adversely affect or prejudice the ownership of the SKY Equipment by SKY.
9.2 The Subscriber must immediately return the SKY Equipment to SKY or an authorised SKY agent on termination or cancellation of this agreement.
9.3 The Subscriber shall be liable for any loss (including fire) or theft of, or damage however caused to, the SKY Equipment and Antenna System during the currency of this agreement. It is the Subscriber's responsibility to effect insurance cover, if the Subscriber elects to do so, against potential liability under this clause.
10. REFUNDABLE DEPOSIT
10.1 Immediately upon execution of this agreement the Subscriber shall pay to SKY a refundable deposit as set out on the face of this agreement in respect of the SKY Equipment.
10.2 The deposit will be refunded to the Subscriber only if the SKY Equipment is returned to SKY or an authorised SKY agent immediately on termination or cancellation of this agreement, however:
(a) if the SKY Equipment is not in good condition (fair wear and tear excepted); or
(b) there are moneys due by the Subscriber to SKY;
then the deposit will be applied to the cost of repairing or replacing the SKY Equipment and paying such monies due with the balance of the deposit remaining (if any) being immediately disbursed to the Subscriber. The Subscriber will be liable for any amount which is not covered by the deposit.
10.3 In no event will the Subscriber be entitled to claim interest on the deposit.
11. ANTENNA SYSTEM AND APPROVALS ETC
11.1 The Subscriber must immediately after the execution of this agreement at its own expense install and maintain in the RUD the Antenna System so that the reception of the SKY Signal at each of the television outlets at the RUD does, and continues to, comply with SKY's quality standards for such reception. Such quality standards are available from SKY upon request.
11.2 The Subscriber shall, at its own expense, secure and maintain all necessary approvals and consents for the installation of the Antenna System and the SKY Equipment at or on the RUD, for any alterations to the RUD needed for such installation and for SKY's right of access pursuant to clause 14.2. SKY shall have no responsibility whatsoever in relation to any such approval or consent.
12. QUALITY STANDARDS FOR SUBSCRIPTION SERVICE
SKY may enter the RUD after giving reasonable notice to the Subscriber for the purposes of undertaking an inspection if it considers at any time that its quality standards are not being met.
13. DISABLING DECODER
SKY is entitled to disable the Decoder without notice to the Subscriber in the event of non-payment or late payment of any moneys due to SKY by the Subscriber.
14. PROVISIONS RELATING TO SKY EQUIPMENT
14.1 The Subscriber must not use any video recording equipment, video cassette or other equipment to duplicate, reproduce, sell or otherwise use or transmit the whole or any part of the Selected Service or the SKY Signal under any circumstances for any purpose whatsoever other than that which is authorised by this agreement. The Subscriber acknowledges that the Decoder has been programmed with a unique decoding sequence and will only unscramble the SKY Signal if it receives an encoded authorisation signal. If any attempt is made by or with the agreement of the Subscriber to break this sequence, or to modify the Decoder so that it unscrambles the SKY Signal without having to receive an encoded authorisation signal, criminal charges will immediately be laid by SKY against the Subscriber or the person concerned.
14.2 SKY shall be entitled at any time during the currency of this agreement to enter the RUD, or any other location owned or occupied by the Subscriber where SKY has reasonable grounds to believe that the Decoder is located, in order to maintain, replace or repossess the SKY Equipment or for the purpose of ensuring that the Subscriber is complying with his obligations under this agreement.
14.3 SKY may at any time in its absolute discretion require that the Subscriber exchange any SKY Equipment (including any Smart Card) for any new equipment (including a new Smart Card) provided or specified by SKY.
14.4 The Subscriber must ensure that no payment is received from members of the public in respect of any public viewing of the Selected Service at the RUD. The Subscriber acknowledges that a breach of this clause is a material breach of this agreement.
15. DEFECTIVE DECODER
Subject to clause 9.3, where SKY provides the Decoder to the Subscriber pursuant to this agreement SKY will be responsible for maintaining the Decoder in good order and repair. The Subscriber must advise SKY as soon as the Decoder is damaged or is no longer in full working order. SKY will respond to such advice as soon as is reasonably practicable.
16.1 Save as set out in clause 7, SKY will not be liable for any damage whether direct or consequential resulting from use of the Decoder, any breach of SKY's obligations arising in connection with this agreement or from any negligence, misrepresentation or other act or omission by SKY.
16.2 The provisions of the Consumer Guarantees Act 1993 are hereby expressly excluded and shall not apply to the service provided by SKY to the Subscriber under this agreement and, in any event, the Subscriber hereby expressly acknowledges and agrees that he is not a consumer within the meaning and for the purposes of that Act.
17.1 Termination for breach
If either party is in breach of any provision of this agreement and either:
(a) such breach is capable of remedy and continues for 14 days after written notice thereof has been given to the party in breach; or
(b) such breach being a material breach, is not capable of remedy;
then the party giving such notice may terminate this agreement 14 days after the date on which such notice was given or, in the case of a material breach which is not capable of remedy, the party not in breach may terminate this agreement forthwith. For the purpose of this clause "material breach" includes a persistent breach of any provision of this agreement whether or not the subject of a previous notice of breach.
17.2 Termination for other causes
Either party may at any time by notice in writing to the other terminate this agreement forthwith upon the occurrence of any of the following events in relation to the other party:
(a) if a receiver, receiver and manager, or statutory manager is appointed over the whole or any substantial part of the assets or undertaking of that other party.
(b) if that other party passes a resolution for its voluntary winding up or if an order for winding up is made by a court of competent jurisdiction or proceedings are commenced for its winding up or if it shall enter into any scheme or arrangement with its creditorsotherwise than for the purposes of bona fide amalgamation or reconstruction.
(c) if that other party shall cease to carry on its business voluntarily or as a result of legislation or order of judgment of any court of competent jurisdiction.
17.3 Other rights and remedies
Termination in accordance with the foregoing provisions shall be without prejudice to the other rights and remedies of the party terminating whether such rights and remedies arise under this agreement or at law.
18. EVENTS AFTER TERMINATION OR CANCELLATION
Upon termination or cancellation of this agreement:
(a) SKY will be entitled to forthwith disable the Decoder from unscrambling the SKY Signal;
(b) where the Subscriber fails to return the SKY Equipment in accordance with clause 9.2 SKY may (without prejudice to its rights under clause 10), at its option:
(i) require the Subscriber to pay to SKY on demand, as liquidated damages for the breach of clause 9.2, an amount calculated using the following formula: $A= $B - ($B x C x 0.0067), where $A is the amount to be paid to SKY, $B is the price paid by SKY for the SKY Equipment not returned, and C is the number of months from the date that equipment was installed at the RUD to the date of termination of this agreement; or
(ii) at any time enter the RUD and repossess the SKY Equipment.
(c) The Subscriber must immediately pay to SKY all moneys due to SKY at the date of such termination or cancellation including any liquidated damages payable under clause l8(b)(i); and
(d) Clauses 3, 6, 9, 10, 13, 14, 16 and 18 shall not merge but shall survive for the benefit of SKY notwithstanding any rule of law to the contrary.
19. FORCE MAJEURE
If either party is prevented from carrying out any obligation imposed upon it in terms of this agreement by reason of any act of God, inclement weather, act of State, riot, insurrection, civil commotion, strike, sanctions, boycott, embargo, or any other circumstance beyond its reasonable control, such party must endeavour to advise the other party of the existence of the circumstances and the expected duration thereof. The performance of this agreement will, to the extent that it is made impossible by such circumstances, be suspended until such circumstances cease to prevail.
20.1 Any notice required to be given under this agreement must be in writing and is deemed to be properly served if left at, sent by prepaid letter, document exchange or facsimile transmission to the address of the recipient specified on the face of this agreement or such other address as either party may from time to time notify for such purpose.
20.2 Any notice sent by post or document exchange is deemed to have been properly served two days after the date upon which it was sent. Notices sent by courier, delivered by hand orfacsimile transmission are deemed to have been received on the date of delivery or transmission if made before 5pm on a working day in the area in which the notice is received, and otherwise on the next working day.
21.1 SKY may at any time assign this agreement to any person, company or business without the consent of the Subscriber. The Subscriber may not assign or otherwise transfer his rights hereunder.
21.2 The Subscriber must obtain the prior written consent of SKY to the installation at the RUD of any antenna, cabling or associated electronic equipment for the reception or distribution of television signals.
21.3 If any clause of this agreement shall be invalid, unenforceable or illegal then the remaining terms and provisions of this agreement will be deemed to be severable there from and will continue in full force and effect unless such invalidity, unenforceability or illegality is fundamental to this agreement.
21.4 The failure by either party at any time or times to require performance by the other party of any term of this agreement will not affect the right to enforce the same. The waiver by either party of any breach of any one or more terms contained in this agreement will not be construed to be a waiver of any succeeding breach of such term or any other term.
21.5 Subject to the Subscriber's consent (not to be unreasonably withheld), SKY shall be entitled, to install at the RUD signs of a size, shape and design which state that the RUD receives SKY services. These signs will at all times be of the current design and type as used by SKY, in the event that the subscriber ceases to be a SKY customer then these signs will be removed at the request of SKY.