The TxTStream Service ('TxTStream', 'we', 'our') the service includes but is not limited to data transmission to mobile phones, a web interface service to enable the delivery of mobile phone and appliance data, online data management and other applications (collectively 'Service')
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.
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).
TxTStream Acceptable Use Policy ('TSUP')
Our Company is ruthlessly and implacably opposed to spam 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.
TxTStream does not provide a text or email marketing service. Should you use our service for the purposes of sending marketing texts, as defined by the Electronic Telecommunications Act, we reserve the right to suspend your account without notice to you.
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.
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:
view, download, store, copy in any form or on any media, or disseminate threatening, defamatory, obscene or offensive materials;
engage in misleading or deceptive marketing practise including but not limited to, sending unsolicited commercial messages and email ('spamming') to individuals, forums, newsgroups or mailing lists;
use the Service to disseminate racial, ethnic, religious, organisational, ideological or political material of an objectionable or extreme nature;
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;
illegally download, store, copy or distribute software and other information;
use our Service for commercial gain unless agreed with TxTStream by separate contract;
solicit the performance of any activity prohibited by the law of the country in which our Service is accessed or used;
gain unauthorised access to any computing, information, or communications devices or resources, including but not limited to any machines accessible via the Internet;
damage, modify or destroy the files, data, passwords, devices or resources of TxTStream, other users or third parties;
engage in electronic `stalking' or other forms of harassment such as using abusive or aggressive language;
commit fraud;
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;
propagate computer worms, viruses and other types of malicious programs;
harass or impersonate TxTStream or other users
Consequences of breaking our TSSA including our Acceptable Use Policy
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
alert you without prejudice to our ability to take other action without alerting you;
terminate your account without notice;
notify and provide relevant information to authorities as appears appropriate in the circumstances;
delete any or all of your information, material, software or other content in our sole discretion;
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.
TxTStream can accept no liability for non-performance of third party suppliers
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.
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.
TxTStream pricing may vary without 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.
Use of our Service is at the Customer's own risk
Under no circumstances shall we be liable:
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
under any circumstances for more than the total amount of the charges specified in "Implied Terms" to which a dispute relates.
you agree that we shall not be liable for :
any cost, loss or liability arising from our supply or failure or delay in supplying any goods or Services; and
the content, context or confidentiality of any communications made using our Service.
We agree to exercise the reasonable care and skill of a competent communications service provider in the provision of the Service.
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.
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.
Implied Terms
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.
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:
The supplying of the Services again; or
The payment of the cost of having the Services supplied again.
Dispute resolution
The Parties agree to use their best efforts to resolve any dispute that may arise under this Agreement through good faith negotiations.
Any dispute arising under this Agreement which cannot be settled by negotiation between the Parties or their respective representatives shall be submitted to mediation.
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.
Fault Repair
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.
The Customer solely responsible for use of Customer's Account
The Customer agrees to indemnify TxTStream against liability for any and all use of the Customer's account.
Use of your account constitutes acceptance of our TSSA.
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.
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).
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.
The Customer's right to use the Service or to designate your Users is not transferable or assignable unless varied by separate contract.
The Customer is responsible for and must provide all equipment and Services necessary to access the Service.
The Customer to pay in accordance with our Payment and Billing Options
The Customer may enjoy our Service by opening a permanent direct debit or invoice account with us or one of our authorized distributors.
The Customer shall pay, in accordance with the provisions of the Billing Option selected by the Customer, all 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.
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.
Monthly invoice/statement
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.
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.
It is your responsibility to ensure that you notify us of any change in your email address, contact details or postal address.
Privacy Act compliance and credit checks
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.
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.
Storage of information and backup
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.
Rates and TSSA version updates
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.
Force Majeure
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 applies to domestic or household use but not business use
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.
Termination
Either Party may terminate this Agreement:
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
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
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
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.
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.
If we terminate this Agreement all outstanding charges become immediately payable
Under no circumstances shall you be entitled to any refund of any payments made to us under the Agreement.
Governing Law
All rights and obligations of and between the Customer and TxTStream shall be governed by the laws of New Zealand.
Commissions
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.