Your Contract with Us
In this document ‘we’ and ‘us’ refers to Message4U Pty Ltd ACN 095 453 062 trading as MessageMedia of Level 24 367 Collins Street, Melbourne, Victoria Australia 3000 (MessageMedia)
1. About this document
The Customer Terms apply to all Services provided by us to you.
2. Your Customer Contract
Your Customer Contract
(a) We supply Services to you under your Customer Contract. Your Customer Contract comprises, in order of precedence from highest to lowest:
(i) your Application Form;
(ii) the terms of your Plan;
(iii) these Customer Terms; and
(iv) if we are supplying Design Services to you, Part B.
(b) The parties to the Customer Contract are the Customer (you) and the Supplier (we, us).
3. The Term of Your Contract
(a) The Customer Contract will continue until the end of the Minimum Term and thereafter on a month to month basis until it is terminated in accordance with this Customer Contract.
(b) If your Plan or Application Form does not state a Minimum Term or is described as month-to-month, casual or no contract or similar, either party may terminate it on 30 days’ notice at any time without the imposition of any additional charges.
(c) Your Customer Contract will commence upon our acceptance of your Application Form (whichever happens first).
Provision of Our Services
4. The Services
(a) We will provide to you a non-exclusive, non-transferable, licence for the Services subject to the terms of your Customer Contract.
(b) We may provide the Services using such facilities and such Carrier as we choose from time to time.
(c) We may provide the Services using Our Facilities and/or third party Provider Facilities. Together, we call those Facilities our Network.
5. Exclusive or Preferred Supplier
If your Application Form states:
(a) that we are to be your preferred supplier then you must not engage a third party to provide to you more than 10% of your total requirements for the Services or services substantially similar to the Services; or
(b) that we are to be your exclusive supplier then you must not engage a third party to provide to you any Services or services substantially similar to the Services.
Within 14 days of receipt of a written request, you will provide to us a statutory declaration, executed by a duly authorised officer, attesting to your compliance with clause 5(a) or clause 5(b).
6. Periodic Entitlements
(a) If your Plan or Application Form states that you are required to pay a Monthly Access Fee you will receive Message Credits equal to the value stated in your Plan or Application Form, which may be redeemed by the Customer against Message Fees incurred during that month. We call these Periodic Entitlements.
(b) Unused Periodic Entitlements do not carry forward and are not redeemable for cash or other credit.
(c) If you exceed your Periodic Entitlements, extra Charges may apply or a Service may be limited in some way. Your Plan or Application Form will give details.
7. Prepaid Plans
For a Prepaid Plan:
(a) Prepayments are not redeemable for cash or other credit.
(b) The Plan may specify a Use-by Date i.e. a period after which any Prepaid Entitlements that are not used expire without refund. Unless a Plan or your Application Form specifies otherwise, a Use-By Date of one year applies to all Periodic Entitlements under Prepaid Plans.
(c) When your prepaid entitlements are used up we may cease providing Service. We are not responsible for the consequences of Service ceasing.
8. Automatic Top Ups for Prepaid Plans
(a) Unless you have elected otherwise (by unchecking the appropriate box in your Application Form indicating you do not wish to top up the balance of your Periodic Entitlements automatically) the automatic top up feature will be enabled. You can disable the auto top up feature at any time by accessing the billing page in your Account.
(b) If the automatic top up feature is enabled then, if the value of the balance of your Periodic Entitlements falls below $10, the balance of your Periodic Entitlements will be recharged with the same amount and using the same payment method as your initial purchase.
(c) The automatic top up feature will be disabled if your Periodic Entitlements have expired.
9. Compliance with Policies
(a) You must comply with any applicable Acceptable Use Policy or any Anti-Spam Policy we publish on our website or make available to you.
(b) You must comply with any policy we publish on our website or make available to you directed to ensuring that the use of a Service complies with all Laws.
10. Operational Directions
(a) Acting reasonably, we may give operational directions about a Service. Operational Directions will be directed to the safety, security or reliability of Facilities, compliance with Laws or dealing with an emergency. We will only give an Operational Direction as and when reasonably necessary.
(b) You must comply with any applicable Operational Direction.
11. Carrier or Telecommunications Service provider
You promise that you are not a Carrier or a provider of Telecommunications Services.
12. Provider Requirements – General
(a) Telecommunications services, including many of our Services, are commonly provided by means of Provider Facilities, provided by third party Providers.
(b) A Provider may only permit us to provide Service to you subject to Provider Requirements.
(c) You must comply with any applicable Provider Requirements we notify.
(d) Where a Provider Requirement states that a Provider has a certain right or power:
(i) the Provider itself may exercise that right or power; or
(ii) we may exercise the right or power on behalf of the Provider.
13. Use of Service by others
(a) Unless your Application Form states that we have appointed you as a Reseller, you must not share, resell or resupply a Service for remuneration or reward.
(b) The acts and omissions of your Staff and End Users with respect to a Service are deemed to be your acts and omissions.
(c) You must ensure that your Staff and End Users do not do (or omit to do) anything that would breach your Customer Contract if done (or not done) by you.
14. Payment for third party services
Using a Service may depend on you having goods or services supplied by third parties. For instance, in order to use an email-to-SMS Service, you must have an internet connection. You are solely responsible for the costs of all third party goods and services you acquire.
15. Using a Service
(a) When using a Service, you must comply with:
(i) your Customer Contract (including any applicable Acceptable Use Policy or Anti-Spam Policy); and
(ii) any applicable Laws.
(b) You must not use a Service, and you must Ensure that your End Users do not use a Service:
(i) to send Restricted Content;
(ii) for publishing, reproducing or advertising any message, information, symbol or other communication which is offensive or abusive or of an indecent, obscene or menacing character or for the purpose of causing annoyance, inconvenience or needless anxiety to any person, or for any unlawful purpose;
(iii) to defame any person;
(iv) to breach the rights of any person;
(v) to infringe copyright;
(vi) to create, transmit or communicate communications which are defamatory, obscene, pornographic, discriminatory, offensive, in breach of confidence, illegal or which bring us or any of our Providers into disrepute;
(vii) to host or transmit content which contains viruses or other harmful code or data designed to interrupt, damage, destroy or limit the functionality of any software, hardware or computer or communications equipment;
(viii) to send, allow to be sent, or assist in the sending of Spam, to use or distribute email harvesting software, or otherwise breach the Unsolicited Electronic Messages Act ;
(ix) in a way that is misleading or deceptive, where that is contrary to Law;
(x) in a way that results, or is likely to result, in damage to property or injury to any person; or
(xi) in any way that damages or interferes with our Services to other customers, our Providers or any Facilities or exposes us to liability.
(c) If you send Messages which are regulated by Spam Laws (for example, marketing messages), it is your responsibility to make sure that you comply with the relevant spam laws in the Country that End Users will receive those messages. This may include, but is not limited to:
(i) obtaining consent from the End User to receive marketing Messages;
(ii) including your sender details within the Message;
(iii) including a clear, conspicuous and functional unsubscribe facility; and
(iv) for messages being sent to end users in New Zealand, ensure that those End Users can unsubscribe free of charge and via a Message (we have products and services available to assist you with this).
(d) The Customer is solely responsible for all acts or omissions that occur under account or password provided to it by us, including the content of any Messages transmitted through the Service. The Customer acknowledges and agrees that any Messages sent using the Customer’s Account are deemed to have been sent and/or authorised by the Customer.
16. Telephone numbers – General
You must not knowingly and deliberately relocate, reassign or transfer the number for any Service except in accordance with our published procedures, or otherwise as the Law permits.
17. Telephone numbers – Messaging Services
(a) Any Shared Number or Dedicated Number used in association with your Account has not been issued to you. You acknowledge that we retain ownership of any Dedicated Number used in association with your Account and you have no right to retain a particular number when your Contract ends.
(b) We retain all rights, obligations and liabilities relevant to such numbers.
(c) If your Application Form states that we will provide you with a Dedicated Number/s (inbound or outbound) we will provide you with use of those Dedicated Numbers in accordance with clauses 16 and 17.
18. Voluntary number porting
(a) If, despite clause 17, we agree to transfer:
(i) a Shared Number or a Dedicated Number to you; or
(ii) a mobile service number from you for use in connection with an Account –
then as far as the law allows, you release us and our third party supplier/s from all liability to you, and you indemnify us and them against all costs, expenses, liability, loss or damage incurred or suffered by us or them in conjunction with any claims, actions or proceedings against us or them (including third party claims or claims by you) arising out of the following:
(iii) our inability to transfer-in or transfer-out the number; or
(iv) the fact that the number is not, or ceases to be, available for use in connection with an Account.
We will provide the type and amount of support set out in your SLA. If we are required to undertake on-site support for any reason whatsoever, we will charge you as set out in our SLA. The Customer will also be responsible for any travel expense or other expenses incurred by us in providing on-site support.
20. Maintenance and faults
(a) From time to time, the Network requires maintenance that may interfere with your Service. We will provide you with notice of any scheduled maintenance where reasonably possible.
(b) Reporting faults
(i) You may report faults in relation to a Service or the Network by contacting our help line during its operating hours.
(ii) Before reporting a fault, you must take all reasonable steps to ensure that the fault is not caused by equipment, which is not part of the Network.
(iii) You must not report a fault directly to one of our Providers unless we ask you to do so.
(iv) If you report a fault that turns out to be a ‘false alarm’, or not to relate to the Network, we may make a reasonable charge for our effort and expenses in responding to your report.
(c) Repairing faults
(i) We will use reasonable efforts to repair faults in Our Facilities within the time periods set out in the relevant SLA
(ii) We will use reasonable efforts to have our Providers repair faults in Provider Facilities within a reasonable period.
(iii) You are responsible for maintaining and repairing your own equipment
(d) If you cause a fault or damage to the Network, we may charge you the reasonable cost of repairing it.
21. Your cooperation
(a) You must give us all reasonable cooperation that we require in order to provide a Service to You, and fixing any problems that arise, and resolving any disputes that may arise or complaints that you may have.
(b) We may charge you $100 for each complaint received by us from a Carrier regarding any unsolicited messages despatched by you if we have been charged that sum by a Carrier and are unable to resolve the complaint with the Carrier. The maximum charge to you for any one unsolicited messages despatched by you will be NZ$20,000 (subject to any variation to the maximum imposed by any Carrier).
(c) All Content relating to the use of a Short Code is subject to prior approval by the Carrier.
(d) You acknowledge that, where a Service is a telecommunications service within the meaning of the Telecommunications Act, we or a Provider may be or are required:
(i) to intercept or enable interception communications over the Service pursuant to the Telecommunications (Interception Capability and Security) Act 2013, and
(ii) monitor usage of the Service and communications over it.
(iii) Retain and store data for at least two years.
Confidentiality, Intellectual Property and Privacy
(a) Each party (Recipient) undertakes that, in respect of Confidential Information disclosed to the Recipient by the other party (Disclosing Party), it will not disclose Confidential Information except:
(i) for the purpose for which the Confidential Information was disclosed to the Recipient under the terms of the Customer Contract;
(ii) to those employees, officers and agents of the Recipient who need to know the information for the purposes of the Customer Contract, if that person undertakes to keep confidential the Confidential Information;
(iii) to professional advisers and consultants of the Recipient whose duties in relation to the Recipient require that the Confidential Information be disclosed to them;
(iv) with the prior written approval of the Disclosing Party; or
(v) as otherwise required by law to disclose such information.
(b) The parties acknowledge that monetary damages alone would not be adequate compensation for a breach of the obligations of confidentiality under this Customer Contract, and a Disclosing Party is entitled to seek an injunction from a Court of competent jurisdiction on a breach or threatened breach of this clause.
(c) Despite anything else contained in this Customer Contract and in particular in this clause 22, we retain the unconditional and irrevocable right to disclose your identity and address and those of any Staff or End User in the event of any complaint received from any regulatory or Government body or Carrier, in connection with this Customer Contract.
(d) Nothing in this clause 22 prevents us from naming you as a customer and user of our Services in our marketing materials.
23. Intellectual Property
(a) The parties agree that other than as provided in this clause 23, nothing in the Customer Contract transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights of a party.
(b) If a party provides any material to the other party that contains any Intellectual Property Rights which were developed by or on behalf of, or licensed to, the first party independently of the Customer Contract (pre-Existing Material), then the first party grants to the other party a non-transferable, non-exclusive, royalty-free licence to use, during the term of the Customer Contract, the Pre-Existing Material solely for the purpose of using or supplying the Services under the Customer Contract.
(b) You acknowledge and agree that where you authorise or require us to collect or otherwise deal with Personal Information in your name, or on your behalf, in connection with providing the Services, that we do so as your agent.
(c) You acknowledge and agree that except as may be required by this Customer Contract, we are not required to take steps to ensure that any Personal Information you collect has been collected in accordance with the Privacy Act. Further, you indemnify us for any Claim by a third party that it has suffered Loss as a result of your breach of the Privacy Act.
(d) If the Services or the performance of our respective obligations under this Customer Contract involve any processing of any personal data (as defined in the GDPR) of, or sending Messages to, any individuals in the European Union, then we each agree that we shall comply with the additional terms set out in Parts C and D.
25. Credit management (1): Guarantees and security
We may, at any time, make supply of Service conditional on you providing and/or maintaining security and/or third party guarantees to our reasonable satisfaction.
26. Credit management (2): Credit checks
(a) At our discretion, we may obtain a credit report about you to help us decide whether to accept your application for service and to help us collect overdue amounts. In the course of a credit check, we may disclose personal information about you to a credit reporting agency or other credit information provider. We may receive a credit report and other information about you, including personal information. A credit reporting agency may include the fact that we obtained a credit report about you in its credit information file on you.
(b) We may disclose to a credit reporting agency: information in your application, details of your account, that you have applied for credit with us, that we are a current credit provider to you, payments that are more than 60 days overdue and are subject to collection processes, any cheque of yours for $100 or more which has been dishonoured more than once, any serious credit infringement you have committed or that payments are no longer overdue.
(c) We may disclose information about you and any debt you owe us to:
(i) a debt collection service we engage; and
(ii) anyone who takes, or is considering taking, an assignment of any debt you owe us.
(d) Your consents
(i) If you are an individual, you agree that we can conduct a credit check and verify your personal details, in accordance with this clause.
(ii) If you are self-employed, you agree that we can:
(A) obtain and use any report or information from a credit reporting agency, which contains information about your commercial activities or commercial credit worthiness;
(B) exchange with your other credit providers, any credit report or other report about your credit worthiness or history, or personal information contained in those reports –
in accordance with this clause.
(e) You acknowledge that credit and other information about you may be used:
(i) to assess your application,
(ii) to assist you to avoid defaulting on your credit obligations,
(iii) to notify other credit providers of a default by you,
(iv) to assess your creditworthiness.
Prices, Billing and Payment Terms
Message4U Pty Ltd is a responsible payment party of all transactions occurring in Australia.
Message4U Pty Ltd acknowledges and agrees that it delegates payment responsibility in respect of such operations to its affiliates as follows:
(a) in respect of all European transactions, Bulletin.net (UK) Limited CN 03771735 is the responsible payment party in respect of the below operations; and
(b) in respect of all New Zealand transactions, Bulletin.net (NZ) Limited CN 847056 is the responsible payment party in respect of the below operations.
27. Charges & payment: Prices
(a) You agree to pay our Charges in accordance with the terms of your Contract.
(b) Our current prices at any time are referred to as our ‘Price List’.
(c) If the price for a service is not listed in our Price List, for example the price for international SMS, we may charge you a fee equal to the cost to us of providing that service plus a reasonable margin.
(d) You warrant that you will use the Messaging Services exclusively for the sending of Standard Rate Messages containing Unrestricted Content to End Users and, where the Service supports it, receiving Messages from End Users. We may make an extra Charge if you send any Messages that are not Standard Rate Messages, equal to the amount charged to us by the Carrier plus a reasonable margin.
(e) You must pay for every Message despatched using the Messaging Services irrespective of receipt by the intended recipient.
(f) On written request received within 30 days of the Message being despatched, we will provide evidence that the Message was delivered to the relevant Carrier.
(g) Any failure by a Carrier to deliver a Message to the intended recipient is beyond our control and you will not hold us liable in respect of any such failure.
(h) Where the Services are such that the Carrier will charge you or your customers, you agree to make payment to the Carrier directly or to ensure that your customers will make payment to the Carrier directly.
(i) Where the Carrier is to charge your customers directly you will, upon request, provide evidence to us that you have obtained appropriate authorisation from your customer.
(j) Where a Message Originator incurs Charges, the Carrier will invoice such Charges directly to the Message Originator and recover all such sums directly form the Message Originator in accordance with the Service Rules. Where your Application Form provides for revenue received by us from a Carrier to be shared with you:
(i) we will pay you the agreed revenue share if any only if we receive payment from the Carrier;
(ii) if we are required to repay any revenue share to the Carrier for any reason (or the Carrier sets off any such amount from any future revenue share due to us) we may, at our discretion, require you to refund any revenue share paid to you (or set off that amount from any future amounts due to you).
28. Calculation of number of SMS
Information point: The SMS system allows a maximum message size of 160 characters (or 70 characters if you include any Unicode characters and send via a Unicode supported service). If a user sends a longer message, the system splits it to two or more separate SMS’s that may be reassembled on delivery so that they appear to be a single message (or, on some handsets, may be delivered as a series of separate SMS). When a longer message is split in this way, the components are no more than 153 characters long (or 67 characters long if you include any Unicode characters and send via a Unicode supported service), because a number of characters are used to facilitate re-joining on delivery. As a result, a longer message will result in more than one SMS being transmitted, and charges apply accordingly, as described in this clause.
Charges for an SMS Service will be based on the number of SMS you send, calculated in accordance with the following rules:
(a). If you include any Unicode characters and send via a Unicode supported service, content that contains no more than 70 characters counts as one SMS. In all other cases, content that contains no more than 160 characters counts as one SMS.
(a) If you include any Unicode characters and send via a Unicode supported service, content that contains more than 70 characters counts as one SMS for each block of 67 characters or part thereof. In all other cases, content that contains more than 160 characters counts as one SMS for each block of 153 characters or part thereof.
(b) A ‘character’ includes each individual letter, digit, punctuation and other symbol in the Content.
(c) Each press of a ‘spacebar’ generates a separate character.
(d) Some special symbols and non-English letters may comprise more than one character and you will be charged accordingly.
(e) Where an SMS is sent to multiple End Users, each one is counted separately.
29. Calculation of the size of an MMS
Charges for an MMS Service will be based on the size and number of MMS you send, calculated in accordance with the following rules:
(a) Content that contains no more than 215kB is charged at the Standard rate.
(b) Content that contains between 216kB and 350kB is charged at the first tier premium rate.
(c) Content that contains more than 351kB up to 2000kB is charged at the second tier premium rate.
(d) Where an MMS is sent to multiple End Users, each one is counted separately.
30. When we can bill
(a) Your ‘Billing Period’ is the period between bills. Unless your Application Form states otherwise, our standard Billing Period is monthly.
(b) We can bill a part-period eg to align your Billing Period with the first day of each month.
31. Extra Charges for bills and information
(a) We may charge you an extra Charge if:
(i) you request non-standard information about your bill or Charges, or
(ii) you ask us to deliver a bill by a method that is not the standard method for a Plan.
(b) If you request a paper bill when that is not the standard method for a Plan, the extra Charge is $5 per bill, or as otherwise notified in our Price List.
32. Late billing
(a) We may late bill.
(b) Some Charges in a Bill may relate to a previous Billing Period.
33. When you must pay
(a) Where a Direct Debit or credit card arrangement applies, we may Extract payment for Charges:
(i) 14 days after it is billed (if we issue a Bill for the Service); or
(ii) 14 days after the end of the current Billing Period (if we do not issue a Bill for the Service).
(b) If any Bill is overdue for payment, you must pay that Bill and any other Bill immediately.
(c) You must pay a Bill within 14 days after its Bill Date, unless your Application Form or Plan states otherwise.
34. How you can Pay
(a) If your Plan or Application Form specifies ‘Direct Debit only’ (or similar) then:
(i) Direct Debit payment is a precondition to supply of Service to you.
(ii) We may suspend Service if Direct Debit arrangements are not maintained.
(iii) You must not cause to be reversed any Direct Debit payment to us, unless you have our prior written approval. Otherwise, you must pay our reasonable costs (including legal fees if necessary) of reinstating the transaction.
(b) In any other case:
(i) Direct Debit is our preferred payment method and incurs no surcharges.
(ii) You may pay by MasterCard or Visa or any other card we notify you that we accept.
(iii) Payments made using credit cards may be subject to a surcharge as per our current Price List. Unless the Price List specifies other amounts, Non-direct debit payments attract a monthly surcharge of $5 + GST and, in addition to our usual credit card processing fee, Amex or Diners Club will attract an extra 2% surcharge.
(c) If any payment you make is dishonoured, we may charge you a reasonable payment dishonour fee and recover from you any fees charged by our bank which result from the dishonoured payment.
35. Late payment
If a Bill is not paid on time:
(a) you are in breach of your Contract, and
(b) we may also charge:
(i) interest at the 90-Day Bank Accepted Bill Rate published by the Reserve Bank of New Zealand plus 2% from the Bill Date until it is paid in full; and
(ii) a reasonable late fee; and
(iii) any collection fees and expenses that we incur.
36. Billing disputes
(a) Our records of what you owe us are deemed to be right unless you show them to be wrong.
(b) If you dispute a bill, you must pay it on time and without set off. We shall credit you if it is later determined that you are entitled to a credit.
(c) You may not raise a billing dispute more than 12 months after a bill is issued, and we will not pay a refund or give a credit in respect of a period prior to that.
(a) In this clause, an expression within a pair of asterisks means the same as in the GST Act.
(b) Amounts payable under your Contract are taken to be GST inclusive unless they are expressed to be ‘GST exclusive’, ‘+ GST’ or similar.
(c) Where any amount is GST inclusive, it is the gross amount, inclusive of any GST payable in respect of any *taxable supply* for which that amount is paid. Otherwise:
(i) The *consideration* payable by a party represents the *value* of any *taxable supply* for which payment is to be made.
(ii) If a party makes a *taxable supply* for *consideration*, which represents its *value*, then the other party must pay immediately the amount of any GST payable in respect of the *taxable supply*.
(d) If these terms require a party to pay, reimburse or contribute to an amount paid or payable by the first party in respect of an *acquisition* of a *taxable supply* from a third party, the amount the other party must pay, reimburse or contribute will be the value of the *acquisition* by the first party less any *input tax credit* to which the first party is entitled plus, if the first party’s recovery from the other party is a *taxable supply*, any GST payable under this clause.
(e) We may recover any GST payable under this clause in the same manner as our Charges.
Warranties and Indemnities
38. Service Level Agreements
If a Service or a Plan includes a Service Level Agreement (SLA):
(a) we are only liable for the remedy or rebate specified by the SLA (if any); and
(b) subject to the express terms of the SLA, our liability for breach of the SLA is limited to such remedy or rebate; and
(c) you agree we are not liable for any failure, for any reason, to supply the Services in accordance with the SLA.
39. Exclusion of Implied Terms and Warranties
You agree and acknowledge that:
(a) any representation, warranty, condition or undertaking that would be implied in your Contract by legislation, common law, equity, trade, custom or usage or otherwise is excluded from your Contract to the fullest extent permitted by law;
(b) we do not warrant or represent the performance, accuracy, reliability or continued availability of the Services or Facilities or that the Services or Facilities will operate free from faults, errors or interruptions.
40. Your liability to us – General
(a) Subject to clause 43, you must indemnify us for any loss or damage we suffer arising from or in connection with:
(i) your breach of your Contract;
(ii) all Content sent or received on your Account;
(iii) any wilful or negligent act or omission by you, your employees, agents or contractors;
(iv) a Claim against us by your Staff, any End User or any third arising out of or in relation to your use of the Services and/or Equipment;
(v) your use of the Service in a way that breaches any Law or infringes the rights of any third party; and
(vi) acts or omissions of End Users.
(b) Your obligations under this clause survive termination of your Contract.
41. Your liability to us –requests for information or evidence
(a) This clause applies where we reasonably incur expense as a result of or in connection with:
(i) a police request for information or evidence in relation to you or your use of a Service; or
(ii) a Court or other competent authority’s direction for provision of information or evidence in relation to you or your use of a Service; or
(iii) a demand from a legal practitioner for information or evidence in relation to you or your use of a Service.
(b) You must reimburse our expenses on request.
(c) Your obligations under this clause survive termination of your Contract.
42. Our liability to you
(a) Subject to clause 43, we must indemnify you for any loss or damage you suffer arising from or in connection with:
(i) our breach of your Contract;
(ii) any wilful or negligent act or omission by us, our employees, agents or contractors;
(iii) a Claim against you by any End User in relation to a Service we supply to you arising out of our negligence in supplying the Services to you; and
(iv) our supply of the Services in a way the breaches any Law or infringes the rights of any third party.
(b) Our obligations under this clause survive termination of your Contract.
43. Limitation on Liability
(a) To the maximum extent permitted by law, the parties agree:
(i) that the maximum cumulative liability of a party under or in connection with this Customer Contract (including pursuant to an indemnity) will be the total amount payable to us by you under this Customer Contract in the 12 months immediately preceding the incident or event giving rise to the liability; and
(ii) that neither party will be liable to the other party for any for any loss of profit or indirect loss or consequential loss suffered by the other party arising out of the Customer Contract, whether arising as a result of any act, omission or negligence of a party or otherwise.
(b) Nothing in this document limits or excludes the liability of a party for claims relating to:
(i) personal injury or death directly arising from that party’s negligent acts or omissions;
(ii) infringement of intellectual property rights; and
(iii) fees and Charges payable.
Termination and Suspension
44. Termination by us
We may, by written notice to you, immediately terminate your Contract if:
(a) at any time (except during the period of the Minimum Term), on 30 days’ written notice to you;
(b) you are in material breach of your Contract (including but not limited to a failure to pay us on time, a breach of the Acceptable Use Policy or a breach of the Anti-Spam Policy) and you fail to remedy such breach within 14 days of being served notice to do so;
(c) you suffer an Insolvency Event;
(d) we become entitled to suspend the Service, and the suspension continues for more than a month;
(e) we reasonably suspect that you, Your Staff or your End User has infringed or attempted to infringe our Intellectual Property Rights;
(f) you cause to be reversed any Direct Debit or credit card payment to us (except with our prior written agreement);
(g) it is necessary to do so in order to comply with a warrant or other court order, or as otherwise required or authorised by law;
(h) if we reasonably suspect fraud or attempted fraud involving the Service;
(i) you are, or become, a carrier or a provider of Telecommunications Service under the Telecommunications Act; or
(j) in any other circumstances stated elsewhere in your Contract.
45. Termination by you
You may terminate your Contract:
(a) at any time (except during the period of the Minimum Term) on 30 days’ written notice to us;
(b) by giving us written notice if we are in material breach of your Contract and we fail to remedy that breach within 14 days of being served notice to do so;
(c) by giving us written notice of immediate termination if we suffer an Insolvency Event;
(d) by giving us 14 days’ written notice if an Intervening Event occurs and you are unable to use the Service for more than 30 days;
(e) by giving us 14 days’ written notice if you reasonably suspect that we have infringed or attempted to infringe your Intellectual Property Rights; or
(f) in any other circumstances stated elsewhere in your Contract.
46. Consequences of Termination
If your Contract ends:
(a) if your Contract ends during the period of the Minimum Term then you will be required to immediately pay us the Early Termination Fee (other than if you terminate the Contract pursuant to clauses 45(b), 45(c), 45(d) , 45(e) or 46(f)). You acknowledge and agree that any liability to pay us an Early Termination Fee does not prejudice any other right we may have to claim damages as a result of the termination.
(b) our obligations to you under your Contract are at an end;
(c) you must immediately cease use of any of our Services (including any Short Codes) supplied under that Contract;
(d) we may bill you for any Services we have not yet invoiced and all other amounts we are entitled to under the Contract;
(e) all bills are payable immediately;
(f) you authorise us to recover any outstanding Charges from any overpayment you have made, or Direct Debit them from your credit card or bank account if you normally pay by Direct Debit;
(g) it does not affect the accrued rights or liabilities of either party; and
(h) it does not affect the provisions which expressly or by implication are intended to operate after termination including, without limitation clauses 22, 23 and 24 and the limitations of liability and rights of indemnity.
47. Suspension of Service
We may suspend Service at any time, without liability and immediately by reasonable notice to you (except in the case of an emergency), if:
(a) there are problems with the Network, or we or our Providers need to suspend the Services to conduct operational and maintenance work on the Network;
(b) you fail to pay any amount owing to us in respect of the Service under your Customer Contract (which is not the subject of a bona fide dispute) by the due date, and you fail to pay that amount within the period specified in any subsequent notice we send you;
(c) you breach your Customer Contract, including terms relating to your use of the Service or any Acceptable Use Policy including but not limited to a breach of the Spam Laws;
(d) there is an emergency;
(e) there is a threat or risk to the security of the Service or integrity of the Network;
(f) the Service may cause death, personal injury or damage to property;
(g) we are required to do so to comply with the Telecommunications Act or any other applicable law or direction of any Regulator;
(h) an Intervening Event occurs; or
(i) we are otherwise entitled to do so under your Customer Contract.
48. Charges during a period of suspension
If we suspend Service:
(a) because of your fault or breach of your Contract – you remain liable for all Charges payable under your Contract during the period of suspension;
(b) otherwise – you are entitled to a pro rata reduction in Charges in respect of the period of suspension.
49. General power to vary your Contract
Subject to clause 50,
(a) we may vary your Contract from time to time on 14 days’ written notice to you; and
(b) any variations that have been deemed to be accepted pursuant to clause 50 will take effect 15 days after the date of any notice.
50. Customer Right to terminate on Receipt of Notice of Variation
If you do not accept the variation set out in a notice from us pursuant to clause 49 you must notify us in writing within 14 days. If you fail to do so, you will be deemed to have accepted the variation. If you notify us that you do not agree to the variation, then we must discuss the proposed variation in good faith. If no agreement on the variation is achieved within 10 Business Days either party may terminate this Customer Contract by providing 30 days’ written notice to the other party.
You acknowledge that:
(a) there has been no reliance by you on our skill or judgement or written or oral representations in deciding whether our Service is fit for a particular purpose or meets particular criteria;
(b) the internet is not an inherently secure system and you undertake responsibility for the protection of your information and data;
(c) internet may contain viruses (including other destructive programs), which may, if not eliminated, destroy parts or all of the data contained within your system, and that we have no control over these viruses; and
(d) we do not provide any filtering or checking of data to eliminate these viruses, and you agree to provide you own mechanism for checking its system for viruses, and to indemnify us against any damage caused by viruses obtained through the Service.
(a) We may assign or novate all or part of our rights and obligations under your Contract without your consent.
(b) You cannot assign or novate all or part of your rights and obligations under your Contract unless we agree in writing.
53. Governing law
Your Contract is governed by and must be construed in accordance with the laws of New Zealand. You and we submit to the exclusive jurisdiction of the courts of New Zealand.
54. Entire agreement
Your Contract is the entire agreement between you and us regarding its subject matter, and you acknowledge that:
(a) subject to clause 54 and without otherwise limiting any statutory rights you may have (including under the Consumer Guarantees Act 193) your Contract does not include any term, condition, warranty, representation or guarantee that is not expressly set out in it; and
(b) you have not relied on any representation that is not expressly set out in your Contract.
55. Contracting out
Where you are in trade and to the extent that it is fair and reasonable for us to do so, you agree that:
(a) under your Contract we are contracting out of sections 9, 12A, 13 and 14(1) of the Fair Trading Act 1986; and
(b) the goods and services supplied by us to you under the Contract are supplied and acquired in trade and we are contracting out of the Consumer Guarantees Act 1993.
(a) Time is not of the essence in the performance of our obligations, including the provision of Service, under your Contract.
(b) We are not liable to you for any delay in the provision of any Service.
(c) You may not cancel or amend an order for a service on the grounds of any delay in providing it.
57. No waiver
A failure, delay, relaxation or indulgence by us in exercising any power or right conferred under your Contract (such as a right that we have due to your breach of your Contract) does not operate as a waiver of the power or right.
58. Commercial Electronic Messaging
(a) Subject to this clause, we may send you Commercial Electronic Messages regarding telecommunications goods and services, and ancillary goods and services, and you consent to us doing so.
(b) You consent under clause 58(a):
(i) applies while your Contract is in force and for a year afterwards; and
(ii) is in addition to any other consent that you may give, or which may be inferred, for the purposes of section 16(2) of the Unsolicited Electronic Messages Act; but
(iii) terminates if you give us reasonable written notice that it is withdrawn.
(c) Any Commercial Electronic Message we send you does not have to comply with section 18(1) of the Unsolicited Electronic Messages Act.
(d) This clause 58 survives the termination of your Contract.
Interpretation and Dictionary
59. Interpreting your Contract
(a) If an expression is defined in the Dictionary in clause 60, that is what it means.
(b) If an expression is defined in the Dictionary, grammatical derivatives of that expression have a corresponding meaning. (For instance, if ‘to colour’ means ‘to paint blue’, then ‘coloured’ means ‘painted blue’.)
(c) Expressions like ‘includes’, ‘including’, ‘eg’ and ‘such as’ are not words of limitation. Any examples that follow them are not to be taken as an exhaustive list.
(d) Headings are only for convenience. They are to be ignored when interpreting our Customer Terms.
(e) A schedule to a document is part of that document.
(f) A reference to the singular includes the plural and vice versa.
(g) There is no significance in the use of gender-specific language.
(h) A ‘person’ includes any entity which can sue and be sued.
(i) A ‘person’ includes any legal successor to or representative of that person.
(j) A reference to a law includes any amendment or replacement of that law.
(k) Anything that is unenforceable must be read down, to the point of severance if necessary.
(l) Anything we can do, we may do through an appropriately authorised representative.
(m) Any matter in our discretion is in our absolute and unfettered discretion.
(n) A reference to a document includes the document as modified from time to time and any document replacing it.
(o) The word ‘month’ means calendar month and ‘year’ means 12 months.
(p) The words ‘in writing’ include any communication sent by letter or email or any other form of communication capable of being read by the recipient.
(q) A reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time.
(r) Money amounts are stated in New Zealand currency unless otherwise specified.
|Account||our customer’s entitlement to Messaging Services subject to these terms Contract and, where relevant, includes any Service features, associated usernames or passwords|
|Acceptable Use Policy||a policy so titled and issued under clause 9|
|Anti-Spam Policy||a policy so titled and issued under clause 9|
|Application or Application Form||your application to us to access Messaging Services, in a form we specify from time to time which may also contain features, entitlements, Charges and special conditions in connection with a Service.|
|Automatic Direct Debit||a periodic payment that is automatically deducted by us from your nominated financial institution account|
|Bill||an invoice from us which advises you of the total of each Charge that is due for payment|
|Billing Period||see clause 30.1(a)|
|Carrier||a ‘Network Operator’ as defined in the Telecommunications Act but also includes an entity that operates a telecommunications network outside New Zealand|
|Charges||fees and/or charges applicable under your Customer Contract|
|Claim||any claim, demand, action, proceeding or legal process (including by way of set off, cross-claim or counterclaim)|
|Commercial Electronic Message||same as in the Unsolicited Electronic Messages Act 2003|
|Confidential Information||in relation to each party (for the purposes of this definition, the Discloser):
|Content||the content of a Message you send or receive|
|Contract||same as Customer Contract|
|means the customer named in the Application Form
see clause 2
|Customer Terms||the terms and conditions set out in Part A of this document.|
|Dedicated Number||a digital mobile service number provided by us to you under this Contract for exclusive use by you as part of your Messaging Service.|
|the design and creation of text and/or images used in an SMS and/or MMS and includes, without limitation, concepts, ideas, innovation and development work to further enhance the Messaging Services. Design Services may also include the management of the delivery or execution of a process or campaign on behalf of the Customer
a payment that is deducted by us from your nominated financial institution account, including an Automatic Direct Debit
|End User||a person who receives a Message you send using your Account, and a person who sends you a Message via your Account|
|Equipment||a handset, modem, router or other hardware|
|Extract||deduct an amount by Direct Debit|
|Facilities||systems, software, computers, equipment and network infrastructure of all kinds used to provide or in connection with the provision of a Service|
|GDPR||the General Data Protection Regulation (Regulation (EU) 2016/6790)|
|GST||Goods and Services Tax|
|GST Act||Goods and Services Tax Act 1985|
|Insolvency Event||includes an event where a receiver or receiver and manager is appointed over any of your property or assets, an administrator, liquidator or provisional liquidator is appointed to you, you enter into any arrangement with your creditors, you become unable to pay your debts when they are due, you are wound up or become bankrupt, or any other analogous event or circumstance occurs under the laws of any jurisdiction|
|Intellectual Property Rights
|Includes all right, title and interest wherever subsisting (now or in the future) throughout the world, and whether registered or not, in and to:
and includes the right to apply for registration, grant or other issuance of the rights described in paragraphs (a), (b) and (c) above and any other rights generally falling within this term.
|Law||laws, Acts of Parliament, regulations, mandatory standards and industry codes and including the requirements or directions of any Regulator|
|Message||an SMS, MMS or OTT Message|
|Message Credits||a credit equal to your Monthly Access Fee that may be applied to your Messaging Fees for that month, provided that any unused balance in each month (a) is not carried over to any later month and (b) is not refundable|
|Messaging Fee||a Charge per SMS sent or received on your Account.|
|Message Originator||the unique telephone number that initiates a Message to a Short Code.|
|Messaging Service||a Telecommunications Service for sending and/or receiving and/or processing Messages|
|Minimum Term||the period specified in your Plan or Application Form, or if your Plan or Application Form does not so specify, means 12 months.|
|MMS||a message including text and/or multimedia content carried by the multimedia messaging service developed by the Open Mobile Alliance, whether it originates or terminates on a mobile phone or another kind of computer|
|MMS Service||a Messaging Service for MMS|
|Model Clauses||the applicable standard contractual clauses for transfers from data controllers in the EEA and UK to data processors outside the UK and EEA entered into between you and us, as set out here.|
|Monthly Access Fee||the charge identified as such in a Plan or Application Form|
|Network||see clause 4.1(c)|
|is an instant message that uses the internet for transmission
Facilities we own and/or operate
|Partner||a Customer whose Application Form states that they are appointed as a partner of the Supplier.|
|as defined in the Privacy Act from time to time
means the Privacy Act 1993 as amended from time to time;
a third party that, under a contract with us, provides (a) access to Facilities they manage or maintain or (b) content or (c) a service – that we resupply to you
|Provider Facilities||Facilities that are managed or maintained by a Provider|
|Provider Requirements||see clause 12|
|Periodic Entitlements||see clause 6|
|Plan||a particular set of features, entitlements, term of contract, Charges and special conditions in connection with a Service. Many of our Services are available under different Plans, each with its own features, entitlements, contract period, Charges and special conditions. The terms of your Plan form part of your Customer Contract.|
|Post-Paid Plan||a Plan where you can use all or part of the Service before you pay for it|
|Prepaid Plan||a Plan where you must pay in full for Service before you use it|
|Price List||see clause 27.1(b)|
|Privacy Act||Privacy Act 1993|
|Product||goods and / or services|
|Regulator||includes the Commerce Commission and any other relevant government or statutory body or authority and the Telecommunications Commissioner|
|Reseller||a Customer whose Application Form states that they are appointed as a reseller of the Supplier.|
|Restricted Content||Content that:
|Related Company||as defined in the Companies Act 1993|
|Services||a service (including any Equipment) which we provide to you, including but not limited to (a) a telecommunications service of any kind; or (b) ancillary goods or service|
Service Level Agreement
|a Customer whose Application Form states that they are appointed as a reseller of the Supplier’s Services
a written service quality assurance titled as such, as updated by us from time to time
|Shared Number||a digital mobile service number that we associate with multiple Accounts|
|Service Rules||the service rules provided to you on or about the date of your Application or as published by us on our website from time to time and as updated from time to time by a Carrier|
|Short Code||a specific short code number which a Carrier has approved for exclusive use by the Customer|
|SLA||a Service Level Agreement|
|SMS||a text message carried by the short message service that was originally developed for use on the GSM mobile telephone network, whether it originates or terminates on a mobile phone or another kind of computer|
|SMS Service||a Messaging Service for SMS|
|Spam||an unsolicited commercial electronic message within the meaning of the Unsolicited Electronic Messages Act|
|Spam Laws||the Spam Act 2003 (Australia), the Unsolicited Electronic Messages Act 2007 (New Zealand) and the CAN-SPAM Act (USA)|
|Special Promotion||a special promotion we may offer from time to time, on terms we notify in connection with the offer|
|Standard Rate Messages||Messages that are billed by Carriers at standard rates, and in particular are not premium rate Messages, which are billed by Carriers at premium rates|
|the entity described as such in the Application Form and/or your Plan and/or on the website on which these Customer Terms are published.
Telecommunications Act 2001
|Telecommunications Service||as defined in the Telecommunications Act|
|Unrestricted Content||Content that is not Restricted Content|
|Unsolicited Electronic Messages Act
|the Unsolicited Electronic Messages Act 2007 (New Zealand)
see clause 7.1(b)
61. About this Part
This Part applies when we supply you with Design Services.
62. Quote and Specifications
Prior to providing any Design Services we will agree:
(a) the specifications and requirements for the Design Services; and
(b) total estimated cost of the Design Services.
63. Deposit for Services
We may require you to pay a deposit for any Design Services that you have asked us to provide to you.
64. Approval of Design Services
Where we undertake Design Services or any form of professional services, you will not unreasonably withhold signoff and approval of the completed project, where we are able to reasonably demonstrate that we have met the agreed specifications or requirements.
65. Customer Warranty
You warrant that all Content provided to us in relation to the provision of the Design Services is duly licensed or authorised and not in breach of any law, third party rights or trademarks. You further accept without limitation that any fees, royalties or other payments for use of Content are to be paid by you.
Upon completion of the Design Services you agree to pay the total cost of the Design Services within 14 days of receipt of an invoice for such services.
67. About this Part
This Part C applies if the Services or the performance of our respective obligations under this Customer Contract involve the processing of any personal data (as defined in the GDPR) of, or sending Messages to, any individuals in the European Union.
68. Privacy and Electronic Communications and E-Commerce
(a) You warrant and undertake at all times to comply (and to ensure that your Staff and End Users also comply) with your obligations under the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Electronic Commerce (EC Directive) Regulations 2002, in particular, you:
(i) warrant and represent that End Users to whom you send Messages have consented or otherwise opted-in to the receipt of such Messages as required by any applicable Law or regulation.
(ii) agree that you will include clear opt-out/unsubscribe information on your Messages when required to do so by any applicable Law or regulation; and
(iii) will adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to your messages
(b) You indemnify us for any Claim which results from your breach of paragraph (a) above.
69. Data Protection
(a) The terms ‘data subject’, ‘personal data’, ‘process’, and ‘supervisory authority’ have the meanings given to them in the GDPR.
(b) With effect from 25 May 2018, if a party is provided with, or has access to personal data in connection with the Services, it must comply with the GDPR and any other applicable law in respect of that personal data.
(c) The subject matter of the processing by us shall be the performance of this Customer Contract. The nature and purpose of the processing shall be the provision of the Services. The duration of the processing shall be the duration of this Customer Contract.
(d) We shall:
(i) only process personal data on your behalf in accordance with, your instructions and for the purposes set out in this Customer Contract;
(ii) implement appropriate technical and organisational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
(iii) ensure that any of our personnel engaged in the processing are subject to a duty of confidentiality.
(iv) co-operate with you if you are required to deal or comply with any assessment, enquiry, notice or investigation by the Information Commissioner, to assist you in complying with such assessment, enquiry, notice or investigation.
(v) notify you if we receive a request from a data subject for access to personal data and shall provide you with reasonable co-operation and assistance in relation to any such request.
(vi) inform you without undue delay if at any time any personal data is or is suspected to be, lost, corrupted, used or disclosed to a third party except in accordance with this Customer Contract and provide reasonable assistance to you in relation to your obligation to notify data subjects or a supervisory authority.
(e) You acknowledge that in providing the Services, personal data may be transferred outside the European Economic Area under the Customer Contract and each party undertakes to comply with its obligations under the Model Clauses.
(f) You hereby consent to the sub-processing of personal data by a Provider. We shall only appoint additional sub-processors where we have your prior consent to do so and where we have written terms in place with the sub-processor that reflect these terms.
(g) You warrant that you have provided a fair processing notice to End Users that notifies them of our processing activities and that where our processing of personal data on your behalf requires the consent of End Users, you have and will obtain this and provide us with evidence on request.
(h) On termination of this Client Contract, we shall delete all personal data that you have provided to us, unless we are required by law to retain it (in which case, we will not actively process it after the termination date).
(i) You may, not more than once in any 12-month period and on giving at least 30 days’ written notice, conduct an audit of our processing of personal data under this Client Contract. We shall mutually agree on the scope, timing and duration of the audit. The audit shall exclude any personnel records and any data, systems and facilities which are subject to confidentiality obligations to third parties. You shall not be entitled to take copies of any information.
(j) You indemnify us for any Claim by your Staff, End Users or any other third party that it has suffered Loss as a result of your breach of paragraphs (b), (e) or (g) above.