1.                  Interpretation

“Agent” means any contractor, provider, dealer or agent appointed by Here I AM to perform any of Here I AM’s obligations under this Agreement.

“Agreement” means these terms and conditions between you and us.

“Application form” means the application form signed by you setting out your details, to use to our services.

“Authorised User Login” means accessing our information or services through authenticated internet user login processes. Access rights may have been established by you or us.

“Suspension” means suspending access to our services, whether for an individual user or multiple users for whom you have responsibility.

“Charges” means all monthly service charges payable by you in accordance with the Pricing Plan and any additional charges payable by you.

"Customer Services" means the Here I AM customer services team.

“Default rate” is the rate of 1.5% per month or any other rate notified to you on your account. It applies from the date payment by you is due to the date we receive your payment in full.

“GPS” means Global Positioning Service

“Gpsmo” means a combination GPS receiver and cellular mobile telecommunications device.

“Network Operator” is any entity with whom we have entered into a service agreement or arrangement (directly or indirectly) providing for the passing of customer generated or customer destined communications between us and that entity.

“Payment” means crediting your Here I AM account (or to the Here I AM account of another Here I AM on-account customer or loading additional monetary credit to the Here I AM prepay account of another Here I AM prepay customer) by any means made available by us from time to time.

“Pricing Plan(s)” are your chosen service rates and form part of this Agreement.

“Services” means the GPS location services and related products and services that are made available to you by us or our agents from time to time.

“SIM card” is the subscriber identity module needed to operate your Gpsmo and through which you are connected to cellular networks, and includes any SIM card issued to you by us.

“Term” means, subject to any early termination under this Agreement, the period specified in your application form or in any extension to or replacement for this Agreement.

“User” means a person using or accessing Gpsmo’s, information or services provided by us. Whether that user has had access rights established by you or us.

"Website" means our website at www.hereiam.co.nz and any related web sites, including secured areas accessed by authorised user login.

“We” or “Us” means Here I AM Limited and “Our” has a corresponding meaning.

“You” means the customer under this Agreement whether as an individual, company or other entity. “Your” has a corresponding meaning.

2.         Commencement and Term

This Agreement begins when we have set you up as a user on our system to enable you to use our services.

(a)       If your chosen term of service is for a fixed Term:

(i)                 This Agreement will continue for the duration of that fixed Term, including the period of any suspension unless the suspension was requested by you in accordance with this Agreement, in which case the period of any such suspension will be added onto the fixed Term.

(ii)               If you terminate this Agreement before the end of that fixed Term you may have to pay early termination charges. You may obtain details of any early termination charges by referring to your application form or by contacting Customer Services.

(iii)             If you resign to a new term before the end of that fixed Term, you may have to pay early resign charges. You may obtain details of any early resign charges by contacting Customer Services.

(iv)       On expiry of that fixed Term your connection can be terminated by you or us on one month’s notice or any lesser notice period agreed between us.

(b)       If your connection to our network or service does not have a fixed Term, this Agreement continues on a month by month basis until it is terminated in accordance with these terms and conditions. Unless we have agreed otherwise, no early termination charges are payable by you if you wish to discontinue a connection to our network or a service which is not a fixed Term connection.

3.         Coverage and Services

(a)       While we will do our best to provide quality services, because of the nature of mobile telecommunications, it is impossible to provide a fault-free service and the quality and coverage of the services depends partly on your Gpsmo, partly on our servers and partly on other providers and telecommunications networks on which our service operates or is connected or connects.

(b)       Coverage and services can be adversely affected by radio interference, atmospheric conditions, geographic factors, network congestion, maintenance, outages on other networks and provider sites or other operational or technical difficulties which means that you may not receive some or all of the services in certain areas or at certain times.

(c)        Services can also change with system expansion or reconfiguration.

(d)       The services may be changed, modified, advanced, suspended or removed by us. We will try to notify you before doing this or introducing substitute or new services. If any of our new services require new or upgraded Gpsmo’s or equipment, you will be responsible for obtaining that new or upgraded Gpsmo or equipment.

(e)       You agree to follow our instructions about the use of the services and ensure that everyone who uses your Gpsmo also meets your responsibilities when using your Gpsmo. You agree to keep us protected against any legal action taken against us and to meet any losses we may incur as a result of such use of the services. You are responsible if anyone else, whether authorised by you or not, uses or misuses your Gpsmo or our services.

(f)         You agree not to use your Gpsmo or the services for any abusive, illegal or fraudulent purpose.

(g)       We can require you to stop using any SIM card or Gpsmo immediately if we believe that it could cause any interference, you have used it to spam other users or are sending an excessive number of calls, texts or other messages, or if it is not approved by us for use on our network or in connection with any of our services.

(h)       Using or agreeing to use the services does not give you any rights in any part of the services. You must not resell, in any way whatsoever, the whole or any part of the services without prior written permission.

(i)         You agree that if you do not use your Gpsmo in accordance with these conditions we may restrict or suspend your use of the services.

(j)         If your Gpsmo is stolen or you lose it, you must contact us immediately. You will be responsible for all charges incurred or services accessed from your Gpsmo up to the time you advise us of its loss or theft and request suspension of our services in connection with this unit.

(k)        Use of our services is limited to within New Zealand.

4.         Security

(a)       You must keep your password to access our services secure and confidential at all times.

(b)       We are not liable for any loss to you as a result of the loss of, theft of, damage to, or unauthorised use of, your Gpsmo or SIM card.

(c)        Some services are available via the internet or other systems operated by third parties and, although we will endeavour to maintain the security of information, we cannot guarantee that information you receive or supply when using the services will be secure at all times. You acknowledge that we are unable to exercise control over, and make no representations or warranties concerning, the security or content of data or information passing over cellular networks, any systems operated by third parties, and the internet.

5.         Charges and Billing 

(a)       We will send you a statement for your charges on a regular basis electronically by email. You must pay the total amount on this statement by the date specified on the statement. You will pay the Charges no matter who incurs them. We may charge for some services in arrears depending on when charges come through from other network operators and providers. You may be charged interest on amounts not paid by the due date at the Default rate and you will also have to pay any reasonable expenses (including solicitor and own client costs) we incur in collecting any money that you owe to us or in exercising any of our other legal rights. You must advise us when you change your address.

(b)       If there is a mistake on your statement, please let us know as soon as possible. If we agree there has been a mistake, we will correct it. Otherwise, you must pay your statement by the due date.

(c)        We can use any credit balance or security deposit in any of your accounts or use any money we owe you to cover your outstanding Charges. We may charge a reasonable account administration fee in relation to accounts we regard as being dormant or for providing statements or for dealing with unused credit balances. Subject to those rights, we will refund any unused credit or security deposits at the end of this Agreement. We will hold any security deposit in a non-interest bearing account.

(d)       We can, at our discretion, impose credit limits for your use of the services and we will try to notify you as soon as we impose such limits. You must observe any credit limits we set from time to time. We may restrict your use of the services without further notice to you if you exceed the credit limits we have set. However, you will continue to be liable for all charges incurred in excess of any credit limit in place.

(e)       You may request a credit limit for your use of the services and we will put that in place in accordance with your instructions. We may restrict your use of the services without further notice to you if you exceed the credit limit set by you. We will endeavour to stop use of the services once your credit limit is reached. However, you will continue to be liable for all charges incurred in excess of any credit limit in place.

(f)         Every person named as a customer on the application form must meet all the customer's responsibilities under this Agreement.

(g)       The SIM card provided with any Gpsmo must not be removed or used with any other device. You will be responsible for all charges incurred or services accessed from your Gpsmo up to the time you advise us of its loss or theft and request suspension of our services in connection with this unit. Removing your SIM card from your Gpsmo will not deactivate the SIM card. Please contact Customer Services immediately if you lose or damage your SIM card or if it is stolen so that it can be restricted or deactivated. We may charge you a replacement fee unless we are at fault. 

(h)        If you require us to provide you with technical support or administration services, we may charge you for these services. If you require prior notification of our current charges please call Customer Services.

(i)         If your account is unpaid by the due date, part or all of your services can be suspended without notice.

6.         Pricing Plans

(a)       You may be able to choose to change from one Pricing Plan to another. If you change your Pricing Plan it is up to you to check what, if any, special terms and conditions there may be for the different Pricing Plans or if there is any fee for changing your Pricing Plan. You may contact Customer Services or visit our website to obtain information about Pricing Plans.

(b)       The included data entitlement and any other entitlement in any Pricing Plan as applicable:

§         may not be carried over from month to month;

§         cannot be redeemed for cash, phone equipment, early disconnection charges or other Charges and cannot be transferred or assigned;

§         expires on termination and any unused included minutes will be forfeited on disconnection;

§         cannot be used if your Gpsmo is subject to Suspension or if you have exceeded your credit limit; and

§         is subject to any other conditions contained in a particular Pricing Plan.

(c)       The charges for other additional services shall be as set by Here I AM from time to time. You can contact Customer Services or visit our website for current details of such charges.

7.         Access to Account and your Information

(a)       You may choose to allow restricted access to your information. Please contact Customer Services to establish the level of access you wish to have and to set up the relevant PIN numbers. You are responsible for keeping all PIN numbers secure.

(b)       We will be entitled to allow anyone using your PIN to request information or act on your behalf. If you give us any instructions, we may need time to verify them before we act on them.

8.         Credit References and Provision of Related Services

(a)       You authorise us to check your credit status with any credit reference agency as we see fit from time to time and to pass on credit information about you to any credit reference agency at any time. If you are not satisfied with the information about you which we receive from any credit reference agency, you must deal directly with the credit reference agency.

(b)       If you do not give us the names of any credit referees when we ask for them, or we are dissatisfied with the information regarding your credit status, we can decline your application or terminate your connection to our network.

(c)        We may ask for a security deposit and/or impose other conditions upon approving your application. These may include, but are not limited to, a mandatory payment method or credit limit.

(d)       When you ask for any additional services we can ask for further credit referee(s) and/or a security deposit for that service and may also impose a credit limit.

(e)       We may decline your application (and/or any request for additional services) or provide a restricted service at our discretion and we do not have to disclose our credit criteria or the reasons for our decision.

9.         Consumer Guarantees Act and Limitation of Liability

(a)       You may have the benefit of statutory guarantees under the Consumer Guarantees Act 1993. Unless you use, or hold yourself out as using, the services for the purposes of a business, nothing in these terms and conditions will limit or exclude your rights under that Act.

(b)       Where you do use, or hold yourself out as using, our services for the purposes of a business, then the Consumer Guarantees Act statutory guarantees do not apply to your connection or to our services and we exclude any liability of any kind (whether in contract, tort, equity or otherwise) to you or anyone claiming through you, relating to any loss of profits or revenue, loss of data, lost business or missed opportunities, wasted expenditure or savings you might have had, or any form of indirect or consequential loss whatsoever, arising from:

§         the content or supply of any services;

§         the failure, interruption or delay in the supply of, any services or any part of them or any negligence in this regard;

§         the fitness of all or any of the services for any particular purpose;

§         the inaccurate transmission of any data;

§         your use of the Gpsmo (whether authorised or not);

§         any other matter which relates to this Agreement.

(c)        If you are a consumer customer, except where we cause direct damage to your property due to our negligence (and subject to paragraph 9(a) and the liability cap in paragraph 9(d)), to the extent allowed by law we have no other liability to you or any other person in respect of this Agreement.

(d)       If for any reason the exclusions in paragraph 9(b) and (c) do not apply,             then our liability to you, or anyone claiming through you, will be limited at             all times to $1,000 or the total amount of all Payments made by you in    the 6 month period immediately prior to the date of your claim, whichever        is the lesser sum. This limitation applies to each claim or series of related          claims made by you. For the purposes of paragraphs 9(b), (c) and (d), "we" and "our" include our officers, employees and agents, as well as all   Network Operators.

10.       SIM card

Any SIM card we issue to you remains our property. At our discretion you must return it to us in good condition when your connection ends. We may charge you a fee if you fail to return the SIM card within 30 days after disconnection. 

11.       Provision of Hardware and Additional Services

(a)       If you have acquired a Gpsmo or other accessories, such as a battery pack or mains charger, from us or from one of our dealers or agents, all claims in relation to those products are covered by the relevant warranty, if any, offered by the relevant manufacturer

(b)       If you have acquired a Gpsmo from some other source, for example from overseas or second-hand, and it does not support all of the services offered by us, we are not under any obligation to take any action so that you can access any such services. Features, and access to content and services, may vary between different Gpsmo’s.

(c)        We do not make any warranty as to the accuracy, completeness or currency of any content or material which you may access or have provided to you, using our services. Where services are provided by a third party we accept no responsibility or liability for their quality or the nature of their content.

(d)       Content or material which you may access or have provided to you, using our services, is for your use only. You may not forward such content or material to any third party or interfere with it in any way without our prior written permission.

(e)       You agree that you are responsible for ensuring that you have the right to send all data and information that you send when using the services. You acknowledge that we may alter any data or information that you send when using the services in order to enable delivery of that data or information in terms of our service.

12.       Privacy

(a)       You agree that we and our agents can collect information about you and the way in which you are using the services. This information may be obtained from you or we will obtain it from our records. You may ask to see personal information we have about you and ask us to correct any information that is not correct.

(b)       You agree that we and our agents can use and hold this information and share it with one another, or with any Here I Am group company and with those employees who need to use your information in the context of our business, for a range of lawful purposes connected with our business operations including:

§         providing you and others with the services;

§         sending you bills;

§         maintaining and improving the quality of the services;

§         checking your creditworthiness; and

§         keeping you informed about our special offers, products and services, and those of selected agents, which may be of interest to you.

(c)        To maintain and improve the services, we can monitor and record calls you make to us or we make to you.

(d)       Some personal information can be shared with cellular network operators so you can send and receive data or calls and to monitor or investigate fraud or other offences. We may also provide your personal information to public sector agencies in order for them to investigate an offence.

(e)      Subject to any rights you may have under the Privacy Act 1993, we will not be liable to you, or to anyone else, for:

§         the content or lack of confidentiality of any services you use;

§         any disclosure we make by law to a public sector agency.

13.       Suspension and Disconnection of Services

(a)       Unless within the term of a fixed term agreement, you may discontinue your connection to our service or give up any service at any time by calling Customer Services and giving us at least one calendar month’s notice. Your service will be discontinued one calendar month after receiving your notice and this shall be the date of disconnection. Some services are able to be terminated sooner than this.

(b)       If you request us to, or we elect to, discontinue your services, you must pay us in respect of each service you have:

§         any early termination charges (if they apply) ; and

§         all Charges incurred until the date of disconnection; and

§         any outstanding Charges and other moneys payable by you for the services.

(c)        We can suspend or restrict your use of any or all of the services or disconnect your connection without telling you if:

§         you do not pay your bill(s) by the due date;

§         you exceed any credit limit in place or your usage of the services is unusual or excessive;

§         you become (or are likely to become) insolvent, bankrupt or where you are or might be a poor credit risk;

§         a receiver, manager and receiver, or statutory manager is appointed over any or all of your assets;

§         a resolution for liquidation is proposed or passed or proceedings to liquidate you are filed or presented;

§         you die.

§         in the case of a partnership, it is or is intended to be dissolved;

§         you do not remain connected to the services.

§         you do not keep to the terms and conditions in this Agreement;

§         you make abusive, offensive, malicious or nuisance calls or communications, or use any of our services in an offensive way;

§         you are abusive or offensive to us, our dealers or agents, or any other person;

§         you tamper with or modify any SIM card other than in accordance with instructions given to you by us;

§         we suspect you of using the services for any illegal or fraudulent activity; or

§         all of the services are permanently or temporarily (for any reason) unavailable to you;

All charges for any services will be payable by you in accordance with this Agreement.

(d)       If we suspend your use of our services, we will try to contact you before doing so. We do not need to suspend services before disconnecting your connection.

(e)       Where we suspend or restrict the services all charges will continue to apply.

14.       Transferring Responsibilities

(a)       We may transfer to someone else the whole of this Agreement and/or any interest in our service.

(b)       Your interests in this Agreement are personal to you and you may not transfer or on-sell the Agreement or any benefit or obligation under it to another person without our consent. If you are a company and your effective management or control is changed in any way, we may treat this as a transfer of this Agreement entitling us to end it.

(c)        You must pay any costs in respect of recording any transfer to which we consent (including our costs in checking the creditworthiness of the transferee). Here I AM’s normal credit criteria will apply to any proposed transferee.

(d)       Here I AM retains the right to alter its services and/or terms and conditions for the proposed transferee.

15.       Ending this Agreement

We can discontinue your service:

§         if any of our licences to operate our service is ended or suspended or any interconnection agreement with any other network operator expires or is ended; or

§         for any other reason we believe that it is appropriate to do so, and in either case you will only have to pay any outstanding charges incurred up to and including the time of disconnection.

16.       Rights and Responsibilities that Continue

Ending this Agreement does not affect any of the rights or responsibilities which are intended to continue or to come into existence after this Agreement ends including (without limitation) any obligation you may have to:

§         pay any outstanding charges;

§         pay any early termination charges; and

§         return any Here I AM equipment you may have on loan from us or any of our dealers or agents.

17.       Network Operators and Other Suppliers

We have certain obligations towards other cellular network operators and our dealers, agents and suppliers. Those persons (and their officers, employees, contractors and agents) will not be liable to you or anyone else for any claims, costs, damages, losses or other liabilities of any kind arising in any way from the services we provide or from your use of those services, including (without limitation) your access to and use of any provider’s site or network operator's networks. This paragraph creates an obligation that other network operators and/or our dealers, agents and suppliers can enforce, whether as a defence or otherwise.

18.       Notices and Variations of Charges, Terms and Pricing Plans

(a)       We may send you notices and other documentation to the last known address, fax number or email address you have given to us. We may elect to send you a text message or leave a message on your voice-Mail directing you to contact Customer Services or to visit our website for details.

(b)       We reserve the right to increase/decrease or remove any of our charges and/or benefits from time to time and/or introduce new charges from time to time. If we increase our charges or introduce new charges, we will give you at least 14 days' prior notice.

(c)        We reserve the right to remove or change any Pricing Plans we may have offered from time to time and either replace them with new Pricing Plans or move you on to the most similar or suitable Pricing Plan then on offer to our customers. If we do remove or change a Pricing Plan that affects you, we will give you as much notice as is practically possible.

(d)       We may amend or replace these terms and conditions from time to time. The amended or replaced terms and conditions will then apply to the services. We will tell you about this by posting the amended or replaced terms and conditions on our website. You will be bound by the amended or replaced terms and conditions even if you are unaware of the amendments or replaced terms and conditions. If you are in any doubt as to the current terms and conditions that apply to the services please visit our website or contact Customer Services. Please ask Customer Services at any time for a free copy of our current terms and conditions.

19.       Insurance

It is your responsibility to insure your Gpsmo for its replacement value (including cover against charges incurred if it is lost or stolen). You will be required to pay for all charges up to the time you notify us of the loss or theft and your SIM card is deactivated.

20.       New Zealand Law

This Agreement is governed by the laws of New Zealand and you submit to the jurisdiction of the New Zealand courts.

22.       Waiver

If we fail or delay to exercise any right or power under this Agreement, this will not be a waiver of that right or power. Any failure or delay will not prevent us from exercising that right or power in the future.

23.       Disputes

If you have any dispute with us or our services, please refer that dispute, initially, to Customer Services.

24.       Force Majeure

We will not be liable for any delay or failure of the services or for any loss or damage from such delay or failure to the extent that it was caused, in whole or part, by an act of God, war, terrorism, civil disobedience, riots, strike, industrial stoppage or unrest, fire, volcanic eruption, earthquake, shortage of suitable labour, materials, equipment or energy or any other event beyond our control.

25.       Agents of Here I AM

(a)       We shall be entitled to subcontract or delegate the performance of any of our rights or obligations under this Agreement but any such subcontracting or delegation will not relieve us from liability for performance of any such obligation. Without limiting this, we may appoint an agent to provide billing services (including credit checking and control) and customer services.

(b)       Invoices issued by our agent will be binding on you and payment of those invoices in full to our agent will be a valid discharge of your liability to pay those invoices under this Agreement.

(c)        Any Gpsmo supplied to you by our agent has been supplied by our agent acting in its own right and not as agent of Here I AM. Here I AM accepts no responsibility for any matters relating to the Gpsmo supplied by our agent;

(d)   Our agents can enforce those obligations expressed to be for their benefit in accordance with the Contracts (Privity) Act 1982.

26.       Important Security Statements

The HereIAm location services are secure yet easy to use. However it is important you understand these key security aspects to ensure your information is as secure as possible:

Passwords

·        It’s important to keep your password secret as it is the key to managing who can view location information for your GPS units.  

·        There should be no need to give anyone else your password as you can setup additional users to view some or all of the GPS units you have.

·        Please ensure any new users you setup understand the importance of keeping their passwords secure.

For more information on managing users please see our website at www.hereiam.co.nz  or email us at info1@hereiam.co.nz with GPS in the subject line.

Groups

As administrator for your GPS Units you can make location information available to other users that you have setup and/or to other users who may not normally be known to you.

It is important you understand the features of group management to maintain the security of your information. Key features to be aware of are:

·        Any GPS Unit you add to a Group will be able to be seen by all users of that Group.

·        Unless you have setup the group you may not be able to control which users are added to the group and thus who can see your units.

·        You have full control over groups you setup, you can limit how long the group is active and for what time period it covers.

As an additional security feature you can view a report that will show a summary of which groups your units belong to and a list of users currently able to see each of your units.  We recommend you review this regularly.

Adding New Users & Units

As the administrator for your account you will have control over who can view location information for each of your GPS units.

Management of users and groups can be done online (under settings) or if you prefer can be faxed through to us once appropriately signed as authorised by you.

Once your application has been approved and your account setup we will send you an easy to follow administration guide and new user kit.