TxTStream Service Agreement ('TSSA')
1. TxTStream is a product of TxTStream Ltd.
2.
The TxTStream Service ('TxTStream', 'we',
'our') comprises data transmission to cellular devices, the service including
but not limited to a web interface service to enable the delivery of cell phone
and appliance data, online data management and other applications, e-commerce,
product sales, the holding of Customer credit balances and user information for
using our Services, and telecommunications Services (collectively 'Service').
3.
These Terms and Conditions and any Issued
Directions and Operating Rules published over the Service or elsewhere
constitute the entire TxTStream Service Agreement (collectively "TSSA")
between TxTStream and the Customer ('Customer', 'you', 'yours') with respect to
the Service superseding all other communications. Use of our service
constitutes acceptance of these terms and conditions.
4.
The Customer may have one or many end user
(s) that may use the service. The TSSA applies to the Customer and to the end
user (s).
2. TxTStream Acceptable Use Policy ('TSUP')
Our Company is ruthlessly and implacably opposed to spam mail or junk mail of any kind. Our Service operates on the 'opt-in' principle, that is, the Customer must ensure that their designated end user (s) have agreed to accept the service and the information that the Customer sends to them over the Service. The Customer agrees to indemnify TxTStream for any use of the service that does not comply with the terms and conditions set out in this TSSA.
1.
The Customer accepts that TxTStream does
not vet or approve any information or material over the Service except where
TxTStream expressly provides a content service within a defined product suite
and with an identified TxTStream marketing brand. TxTStream does not accept any
liability for any information or material which may be transmitted over the
Service.
2.
It is not acceptable for you or your
designated Users to use our Service to, or to attempt to use our Service to,
amongst other things:
i. view, download, store, copy in any form or on any
media, or disseminate threatening, defamatory, obscene or offensive materials;
ii. engage in
misleading or deceptive marketing practice including but not limited to,
sending unsolicited commercial messages and email ('spamming') to individuals,
forums, newsgroups or mailing lists;
iii. use the Service to disseminate racial, ethnic,
religious, organisational, ideological or political material of an
objectionable or extreme nature;
iv. violate copyright
or other intellectual property rights, including, but not limited to,
unauthorised viewing, downloading, storing, copying in any form or on any
media, or disseminating confidential information or any material protected by
trade secrets;
v. illegally download, store, copy or distribute software
and other information;
vi. use our Service
for commercial gain unless agreed with TxTStream by separate contract;
vii. solicit the performance of any activity prohibited by
the law of the country in which our Service is accessed or used;
viii. gain unauthorised access to any computing,
information, or communications devices or resources, including but not limited
to any machines accessible via the Internet;
ix. damage, modify or destroy the files, data, passwords,
devices or resources of TxTStream, other users or third parties;
x. engage in electronic `stalking' or other forms of harassment
such as using abusive or aggressive language;
xi.
commit fraud;
xii. make transmissions of any type or quantity which
adversely affect our operation or jeopardise the use of our Service, or its
performance for other subscribers or to disrupt other network users;
xiii. propagate computer
worms, viruses and other types of malicious programs;
xiv.
harass or impersonate TxTStream or other
users
If we believe that your use of the Service may break the law or that you have not complied with our TSSA, including but not limited to not paying us for our Service, we may
i.
alert you without prejudice to our ability
to take other action without alerting you;
ii. terminate your
account without notice;
iii. notify and provide
relevant information to authorities as appears appropriate in the
circumstances;
iv. delete any or all
of your information, material, software or other content in our sole
discretion;
v. publish details of any breach and alert whomever we
deem appropriate to alert in the circumstances, including public notification
where we deem it in the public good or in our other Customers' interests to be
so alerted.
1. The Customer acknowledges that the Service is subject to national and international third party suppliers and as such TxTStream can offer no warranty, expressly or implied, for the failure of its Service owing to the non-performance of third party suppliers.
2.
TxTStream will use its reasonable
endeavours to operate the service without major variance prior to notification,
however, because we are subject to third party telecommunications suppliers and
changing regulatory environments, we can make no guarantees where we may have
to discontinue, or revise, any or all aspects of the Service at our sole
discretion and without prior notice.
The Customer acknowledges that TxTStream pricing is subject to variable rate changes from third party suppliers. Whilst every effort is undertaken to mitigate the effects of any rate changes and to notify our Customers of same, the Customer acknowledges that TxTStream may vary the terms of any Service including the rates for the Service at any time and to publish those changes as soon as is practicable on our website homepage and elsewhere, without expressly notifying the Customer directly.
1.
Under no circumstances shall we be liable:
i. under the law of tort, contract or otherwise for any
loss of profits or savings or for any indirect or consequential loss or damage,
however caused, arising out of or in connection with the performance or
non-performance of this Agreement; and
ii. under any circumstances for more than the total amount
of the charges specified in "Implied Terms" to which a dispute
relates.
2. you agree that we shall not be liable for :
i.
any cost, loss or liability arising from
our supply or failure or delay in supplying any goods or Services; and
ii. the content, context or confidentiality of any
communications made using our Service.
3. We agree to exercise the reasonable care and skill of
a competent communications service provider in the provision of the Service.
4.
No action arising out of this Agreement,
regardless of form, may be brought by either Party more than 6 calendar months
after the cause of action arose.
5.
You acknowledge that we can make no claim,
expressly or implied, concerning any means of access availability supplied by a
third party carrier, nor any claims, expressly or implied, concerning your
local area network or PC's or Software or other means of connectivity to our
Service.
1. The Parties agree that any condition or warranty
(statutory, express or implied) that would otherwise be implied in this
Agreement is excluded to the maximum extent permitted by the law, including,
without limitation, the implied warranties of merchantability and fitness for
any particular purpose.
2.
Where a condition or warranty cannot
legally be excluded the liability for a Party breaching that condition or
warranty shall be limited, if permitted by law, to one or more of:
i.
The supplying of the Services again; or
ii. The payment of the
cost of having the Services supplied again.
1. The Parties agree to use their best efforts to resolve
any dispute that may arise under this Agreement through good faith
negotiations.
2.
Any dispute arising under this Agreement
which cannot be settled by negotiation between the Parties or their respective
representatives shall be submitted to mediation.
3.
If mediation does not resolve the issue,
both Parties agree to submit to binding arbitration under terms as set by the
President of the Law Society or their appointed representative.
You acknowledge that it is technically impractical for us to provide the Service free of faults and that we do not undertake to do so. If this Agreement contains any specific warranties relating to fault resolution, we agree to repair any faults in accordance with those warranties. In all cases we agree to use our reasonable endeavours to minimise the effect of any faults that may occur and to repair any faults as soon as reasonably practicable.
1. The Customer agrees to indemnify TxTStream against
liability for any and all use of the Customer's account.
2.
Use of your account constitutes acceptance
of our TSSA.
3.
The Customer shall be responsible for all
use of the Service accessed through the Customer's UID and PW or PIN
(collectively, 'ID') or any of the Customer's designated User's ID's.
4.
The Customer must pay all charges incurred
by you or your designated users or incurred as a result of any use of your ID
(whether authorised by you or not).
5.
If you lose your ID; or your ID passes out
of your control; or you suspect that your
ID is being used without your authority, then you must notify us
immediately so that access to the Service by that ID can be stopped. You shall
remain responsible for all charges associated with the use of your ID until
notification is received.
6.
The Customer's right to use the Service or
to designate your Users is not transferable or assignable unless varied by
separate contract.
7.
The Customer is responsible for and must
provide all equipment and Services necessary to access the Service.
1. The Customer may enjoy our Service by opening a
permanent direct debit, credit card or invoice account with us or one of our
authorized distributors.
2.
The Customer shall pay, in accordance with
the provisions of the Billing Option selected by the Customer, connect time
charges, minimum charges and other charges incurred by the Customer, or your
designated Users, at the rates applying for Service in the billing period in
which those charges were incurred, including, but not limited to, charges for
any purchases made through the Service and any surcharges incurred while using
any supplementary networks or Services other than the Service.
3.
The Customer shall pay all applicable sales
and user taxes relating to you and your designated User's use of the Service.
TxTStream may require, at its sole discretion, a joining fee or security
deposit for any account set up not secured by credit card.
4.
If you do not pay within 20 days of invoice
or ensure that sufficient funds are lodged to cover direct debits from
your account or otherwise fail to meet your responsibility to us without
other arrangement, we may terminate our contract with you immediately at our
sole discretion and without recourse. Ending the contract between us in this
way shall not release you from any outstanding obligations or responsibilities
you owe to us.
1.
TxTStream agrees to issue an email account
statement to the Customer no less than five working days before the Customer's
account is debited for charges incurred or the account becomes due for payment.
The account will be e-mailed to the Customer's designated email address and
will be deemed to be received by the Customer for the purposes of this
agreement.
2.
The Customer agrees that it is your
responsibility to check your e-mail for your account and accept that TxTStream
cannot be held responsible if you fail to check your e-mail.
4.
It is your responsibility to ensure that
you notify us of any change in your email address, contact details or postal
address.
1. The Customer consents to TxTStream storing personal
information for the purposes of providing our Service to you and for no other
purpose in compliance with the Privacy Act.
2.
The Customer consents to TxTStream
obtaining a credit report from a credit reporting agency containing personal
information (as well as information concerning creditworthiness and credit
activities) for the purpose of assessment by TxTStream of an application for
credit.
1. The Customer accepts that fraud and any other illegal
capture and use of your credit card by persons and/or systems unknown to
TxTStream are a matter directly between the Customer and your credit card
supplier.
2.
The Customer agrees that TxTStream is not
liable for any fraudulent use of the Customer's credit card and agrees to
wholly indemnify TxTStream against any such claims whether the credit card was
used by the Customer or by any other third party.
Where TxTStream undertakes to accept,
store and/or host intellectual property belonging to the Customer in the form
of web site data, design implements, media, software and other intellectual
property, except as specifically provided for by separate contract, the Customer
is wholly responsible for maintaining the most up-to-date copy of your
information and backing up your data. Wherever possible, TxTStream will
undertake to restore from the last backup but makes no express or implied
undertakings as to the validity, incorruptibility, accuracy and timeliness of
that backup.
TxTStream may not be able
to notify changes to rates and to our TSSA on an individual basis, however use
of our service constitutes acceptance that the most valid and up to date
version of our service rates and TSSA are to be found at our web site at http://www.txtstream.co.nz/ and it is
the responsibility of the customer to satisfy themselves that any printed rates
and TSSA versions they are in possession of are the most recent and up to date
versions released.
The Customer agrees
TxTStream will not be liable for any act, omission, or failure to fulfill its
obligations under this Agreement to the extent that such act, omission or
failure arises from any cause reasonably beyond its control including, but not
limited to: acts of God, strikes, lockouts, riots, acts of war, epidemics,
governmental action after the date of this Agreement, fire, communication line
and/or Telecommunications Providers' failures, power or hardware failures,
earthquakes or other disasters (called "Force Majeure").
The Consumer Guarantees Act
1993 may apply to Service we provide to you if you acquire these Services for
personal, domestic or household use or consumption. If this Act applies, all
rights you have under it apply in addition to the rights of this agreement.
Nothing in this agreement will limit or exclude your rights under this Act.
Where you acquire, or hold yourself out as acquiring our Services for the
purposes of a business, then you agree that your rights are subject to the
terms of this agreement only. In particular, you agree that the provisions of
the Consumer Guarantees Act will not apply to our supply of Services to you.
1. Either Party may terminate this Agreement:
i.
by giving the other Party one calendar
month's notice in writing. The termination
will be effective on the last Business Day of the calendar month following the
calendar month in which the termination notice was served; or
ii. Immediately by
written notice if the other Party commits a material breach of any of its
material obligations in this Agreement and fails to remedy any such breach (if
capable of remedy) within 20 Business Days of written notice from the first
Party requiring any such breach to be remedied; or
iii. immediately by
written notice if the other Party voluntarily or involuntarily suspends or
discontinues its business, liquidates or sells its assets or a substantial part
thereof, makes an assignment for the benefit of its creditors, becomes, or
admits in writing to be unable to pay its debts as they mature, becomes
insolvent, or
iv. immediately by written notice if the other Party
enters into bankruptcy, reorganisation, moratorium, insolvency or similar
proceedings including, without limitation administration proceedings other than
for the purposes of a solvent amalgamation or reconstruction or any event under
the laws of any competent jurisdiction similar or analogous to the foregoing.
2. Any termination of this Agreement shall be without
prejudice to the rights or remedies of either Party against the other Party
save that if we terminate this Agreement due to your non-payment of fees then
we shall be entitled to recover the overdue fees as at the date of termination,
any interest and any termination charge written into the contract.
3.
If we terminate this Agreement:
i.
All deposits paid to us will be
non-refundable;
ii. All outstanding charges become immediately payable;
4. Under no circumstances shall you be entitled to any
refund of any payments made to us under the Agreement.
All rights and
obligations of and between the Customer and TxTStream shall be governed by the
laws of New Zealand.
In accordance with the
Secret Commissions Act 1910, TxTStream is obliged to disclose that commissions
may be paid to resellers of the TxTStream suite of products.