Terms and Conditions

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1. Introduction
1.1 TXT2GET Limited, a company incorporated in New Zealand under number 1849833, ("TXT2GET") provides certain marketing, software, and infrastructure services relating to shortcode and keyword SMS messaging ("the Services").
1.2 These terms and conditions are the terms on which TXT2GET offers you access to the Services and the Website. By registering keywords or shortcodes with TXT2GET you accept these terms and conditions. If you do not accept these terms and conditions, you must refrain from using the Services and the Website.
1.3 These terms and conditions may be amended in whole or in part by TXT2GET from time to time. Amendments will be effective 30 days after the amended terms and conditions are posted on the Website. You are responsible for ensuring you are familiar with the latest terms and conditions. Your continued use of the Services represents your agreement to be bound by the terms and conditions as amended.
2. Definitions
2.1 In these terms and conditions unless the context otherwise requires:
"Account" means a User's account for the Services (including a User's personal information, log-in, and password); "Campaign" means the keyword and shortcode combination which when texted initiates the automated response that the User sets up using the Services; "Texter" means a person that sends a text or SMS message to a TXT2GET shortcode to initiate a Campaign; "TXT2WIN" means a Campaign which constitutes a free-entry trade promotion lottery (or sweepstake, competition, contest or giveaway) conducted to promote goods or services supplied by a business; "User" or "you" means a person or entity using the Website or that registers with TXT2GET to use the Services pursuant to clause 3 of these terms and conditions. "User Content" means any message and/or materials (including text, graphics, news articles, charts, photographs, images, and presentations) that a User creates or provides using the Services and which is sent to a Texter when a Texter initiates a User's campaign; and "Website" means the websites identified by the domain name www.txt2get.co.nz.
3. Becoming a User
3.1 You may only register as a User if you are resident in New Zealand and can form a legally binding contract that is enforceable against you. For example, you must be 18 years of age or older. By registering as a User, you warrant that you can form a legally binding contract.
3.2 You must provide a valid email address and any other information required by TXT2GET in order to register as a User.
3.3 You warrant that you have provided complete, accurate and current personal information when registering as a User. You must maintain and update your personal information held by TXT2GET to ensure it is kept current at all times. TXT2GET may phone or mail you to verify these details. You must not register as a User under multiple identities or personas (whether false or not).
3.4 TXT2GET reserves the right to decline to register you as a User or to terminate your right to use the Services without entering into further discussions with you. Without limiting the foregoing, TXT2GET may terminate your right to use the Services if a serious complaint or multiple complaints are received about you from Texters, if you breach these terms and conditions, or if TXT2GET, at its sole discretion, deems your behaviour to be unacceptable.
3.5 A User's login may only be used by one person - a shared login used by multiple people is not permitted. You are responsible for keeping your login information, including your email address and password, confidential and secure. Without limiting the foregoing, you agree:
(i) Not to permit any other person to use your user name or Account; and
(ii) Not to disclose, or provide to any other person, your password, email address or any other information in connection with your Account that may allow other persons to gain access to your Account.
3.6 You are responsible for any unauthorised use of your Account, and for all losses or charges, including losses or charges that may result from unauthorised or fraudulent use of your Account.
3.7 TXT2GET will send you emails relating to your Account, transactions and other activities on the Website, and for promoting and marketing other TXT2GET products and services to you. TXT2GET may also send regular electronic newsletters to Users. Newsletters will contain clear and obvious instructions for how Users can unsubscribe from the mailing list.
4. Rights and Obligations of TXT2GET
4.1 TXT2GET does not take any part in the sale of a User's goods or services other than by providing the Services as a means for Users to market their goods and services.
4.2 TXT2GET reserves the right to amend or modify the Services at any time, and from time to time, for any reason, and without notice or liability to you or any third party.
4.3 TXT2GET shall use its reasonable endeavours to ensure the availability of the Website and Services, subject to any downtime required for maintenance or technical faults. However, TXT2GET takes no responsibility for any system unavailability, or for any loss that is incurred as a result of the Website or the Services being unavailable. Further, TXT2GET assumes no responsibility for the corruption of any data or information held by TXT2GET.
4.4 TXT2GET shall only be required to provide technical support by way of email correspondence.
4.5 There is no obligation on TXT2GET to pre-screen keywords, shortcodes or User Content. TXT2GET reserves the right to immediately terminate your Account or remove any keywords, shortcodes or User Content without notice if it becomes aware of and determines, in its sole discretion, that you are in breach of these terms and conditions.
4.6 TXT2GET in no way warrants that:
(i) The Services will meet your specific requirements;
(ii) The Services will be uninterrupted, timely, secure, or error-free;
(iii) The results that may be obtained from the use of the Services will be accurate or reliable;
(iv) The quality of any products, services, information, or other material purchased or obtained by you through the Services will meet your expectations; or
(v) Any errors in the Services will be corrected.
4.7 You acknowledge that your use of the Services is at your sole risk. The Website and the Services are provided on an "as is" and "as available" basis. To the maximum extent permitted by law, TXT2GET disclaims and excludes all implied conditions or warranties, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, and non-infringement.
5. Rights and Obligations of Users
5.1 You agree to use the Services to procure Texters purely on an opt-in basis (for the sake of clarity, SMS messages and/or other messages must not be sent to Texters who have not requested them).
5.2 You must not upload, register or transmit any keyword, shortcode, or User Content or other material or information using the Services or the TXT2Get system that:
(i) Is illegal, offensive (including anything of a defamatory, pornographic, or racially or ethnically objectionable nature), or unsafe, anything which infringes copyright or other intellectual property rights, damaging to computer systems, "spam", or any item of which the sale is prohibited by, or violates any, applicable law; or
(ii) Discriminates on account of race, ethnicity, nationality, sex, age, sexual preference, religion, disability or political belief, or which promotes, incites or instructs in matters of crime (or which could reasonably be considered to promote, incite or instruct in matters of crime); or
(iii) Is false, inaccurate, misleading or deceptive;
(iv) Contains any malicious code, data or set of instructions that intentionally or unintentionally causes harm or subverts the intended function of the Website, including, but not limited to viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines that may damage, modify, delete, detrimentally interfere with, surreptitiously intercept, access without authority or expropriate any system, data or personal information; or
(v) Interferes with or disrupts (or attempts to interfere with or disrupt) the Website or servers or networks connected to the Website, or disobeys any requirements, procedures, policies or regulations of networks connected to the Website.
You are responsible for ensuring that any registered keyword, shortcode or User Content does not breach this clause 5.2. You agree that TXT2GET may disclose your personal information, including name and contact details, to the relevant authorities, parties and/or the applicable intellectual property right holders (or their representatives) should TXT2GET consider that you are in breach of this clause 5.2 at any time.
5.3 Under no circumstances will TXT2GET be liable in any way for any keyword, shortcode or User Content, including, but not limited to, the subject matter of any keywords, shortcodes or User Content, any errors or omissions in any keyword, shortcode or User Content, or for any loss or damage of any kind incurred as a result of the use of any keyword, shortcode or User Content posted, emailed, transmitted or otherwise made available via the Website or the Services.
5.4 You hereby authorise TXT2GET to identify you publicly on the Website as a user of the Services. You also agree that your name and/or logo may be displayed on the Website or other material as part of a list of Users.
5.5 You must not modify, adapt or hack the Services or modify another website so as to falsely imply that it is associated with the Services or TXT2GET.
5.6 You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services without the express written permission of TXT2GET.
5.7 Should the Services suffer irretrievable data loss, TXT2GET may require you to restore your data from copies from your own backup, and you agree that TXT2GET will have no liability for any direct or indirect loss in the event of irretrievable data loss.
5.8 In all use of the Website and the Services the User shall:
(i) Comply with these terms and conditions (as amended);
(ii) Comply with all policies and procedures posted by TXT2GET on the Website;
(iii) Comply with all applicable laws and regulations;
(iv) Not take any action which imposes or may impose (in TXT2GET's discretion) an unreasonable or disproportionately large load on the Services, the TXT2GET system, or TXT2GET's infrastructure;
(v) Not use the Services or the TXT2GET system to harass, stalk, hoax, abuse or threaten any other person or distribute illegal contests, pyramid schemes, chain letters or multi-level marketing campaigns;
(vi) Not interfere or attempt to interfere with the proper working of the Website or the Services;
(vii) Not harvest or otherwise collect information about Texters without their consent.
5.9 For the sake of clarity, you shall not:
(i) Disassemble, reverse engineer or decompile or in any other way interfere with the software relating to the Website or the Services (the "Software");
(ii) Copy or modify the Software;
(iii) Create any new software partly or wholly based on the Software; or
(iv) Transfer, assign or sub-licence your right to use the Software or attempt to do so.
5.10 At all times you must ensure that the cost to Texters of sending a message to the Services is included in your marketing material (e.g. "Texts cost 20c each"). The cost must be included in a prominent manner so that a Texter can be left in no doubt as to the cost to the Texter.
5.11 A User is responsible for all activity on their Account (including all User Content posted in connection with their Account) even where such activity is actioned by a person who is not the User and regardless of whether such person is acting with or without the User's permission.
5.12 Each User shall ensure that it complies with the Unsolicited Electronic Messages Act 2007 and the User acknowledges and agrees that when a Texter requests User Content by initiating a Campaign this does not give the User the right to continue to communicate with the Texter unless the Texter has given their consent (express or implied) to such continued communications.
5.13 Solely to enable TXT2GET to transmit information you upload or input into the TXT2GET system, so that TXT2GET does not violate any rights you might have in that information (including any intellectual property rights), you agree to grant TXT2GET a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to do and authorise the doing of all acts comprised in the copyright and to exercise the publicity, and database rights (but no other rights) you have in such information.
6. Trademarks and Copyrights
6.1 You acknowledge that TXT2GET and/or its related companies is the proprietor or the authorised user of the copyright, trade marks and all other intellectual property rights in the software, text, graphics and other material displayed or available through the Website and the Services. You shall not publish, distribute, extract or reproduce any such content in any material form, except as it relates to use of the Services. Permission for use of such content must be obtained from TXT2GET. TXT2GET claims no ownership interest in (and accepts no liability for) the User Content provided by Users.
6.2 TXT2GET reserves the right to delete any keyword(s) reserved by a User if TXT2GET, in its discretion, considers such keyword(s) to be associated with a brand, product, or trademark that is owned by a person or entity other than the User. In such event, no refunds will be made to the User and TXT2GET will have no liability to the User for deletion of such keyword(s).
7 Fees, Account and Variable Direct Debit Authorisation
7.1 TXT2GET charges fees for the use of the Services. TXT2GET's current fees are listed on the pricing page of the Website and TXT2GET reserves the right to change the fees charged for the Services at any time by 20 days notice by TXT2GET on the Website. You agree to pay fees for your use of the Services (including all use on your Account) at the then current rates charged by TXT2GET.
7.2 With regard to the Free Plan Option, the fee for the Services is collected directly from the Texter.
7.3 With regard to Data Plan Options, invoices are rendered in advance on a monthly basis. Accordingly, you authorize TXT2GET, until further notice in writing to debit your credit card account provided to TXT2GET from time to time with the amounts invoiced which TXT2GET, with authorisation code TXT2GET, may initiate by direct debit. You acknowledge and accept that your credit card issuer accepts this authority only upon the following conditions:
(i) TXT2GET has sent a tax invoice/receipt (by email or otherwise) of the amount of each direct debit on the date the direct debit will be initiated;
(ii) TXT2GET may, upon the relationship which gave rise to this authority being terminated, give notice to the credit card issuer that no further direct debits are to be initiated under this authority. Upon receipt of such notice the credit card issuer may terminate this authority as to future payments by notice in writing to the User;
(iii) You may, at any time:
(a) Terminate this authority as to future payments by giving written notice to the credit card issuer and to TXT2GET;
(b) Stop payment of any Direct Debit to be initiated under this authority by TXT2GET by giving written notice to the credit card issuer prior to the Direct Debit being paid by the credit card issuer;
(iv) You are responsible for ensuring your credit card used to pay direct debits under this clause 7.3 is up to date and in credit;
(v) You acknowledge that this authority will remain in full force and effect in respect of all Direct Debits passed to your credit card issuer in good faith notwithstanding your death, bankruptcy, receivership, liquidation or other revocation of this authority until actual notice of such event is received by TXT2GET;
(vi) In any event this authority is subject to any arrangement now or hereafter existing between you and the credit card issuer in relation to your credit card;
(vii) Any dispute as to the correctness or validity of an amount debited to your credit card shall not be the concern of the credit card issuer except in so far as the Direct Debit has not been paid in accordance with this authority. Any other disputes lie between you and TXT2GET;
7.4 If the User's bandwidth usage exceeds the average bandwidth usage (as determined solely by TXT2GET) of other Users, TXT2GET reserves the right to on-charge such additional costs to the User via the Direct Debit authority referred to in clause 7.3.
7.5 There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open Account. In order to treat everyone equally, no exceptions will be made.
7.6 All fees are inclusive of GST and in New Zealand dollars unless otherwise stated.
7.7 If any amount payable under these terms and conditions is not paid on the due date for payment, that amount shall bear interest at the eighteen percent (18%) per annum accruing on a daily basis from the due date to the date of full payment (after as well as before judgment) together with any and all costs of collection including client solicitor costs on a full indemnity basis.
8. Disclaimer of Warranty and Limitations of Liability
8.1 TXT2GET expressly disclaims any responsibility or liability for the use of the Services by Users. Users agree that, to the maximum extent permitted by law, any and all liability and responsibility of TXT2GET to such Users or any other person under or in connection with these terms and conditions, or in connection with the Services, the Website, other Users' acts or omissions, or User's use of or inability to use, the Services or the Website, is excluded regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise. TXT2GET's liability and responsibility is excluded in respect of any and all loss or damage, whether direct or indirect, including, without limitation, loss of profits, loss of data, loss of business or anticipated savings, general and special damages, and consequential and incidental loss.
8.2 Any claim made by a User against TXT2GET must be made by notice in writing to TXT2GET within 12 months of the claim or cause of action arising. TXT2GET will not be liable for any claim that is not made within such time.
8.3 Without limitation to clauses 8.1 and 8.2, if TXT2GET is found liable to you or any third party the liability of TXT2GET shall be limited to the greater of (a) the total fees paid by you to TXT2GET in the 12 months prior to the action giving rise to the liability, and (ii) $1,000.
8.4 Nothing in this clause 8 or elsewhere in these terms and conditions is intended to limit or exclude any liability on the part of TXT2GET where and to the extent that any applicable law prohibits such exclusion or limitation.
9. Indemnification
9.1 You agree to release, indemnify and keep indemnified TXT2GET and its subsidiaries, employees, officers, directors, contractors, agents, licensors and suppliers (together, "the Indemnified"), from and against all actions, claims, costs (including legal costs and expenses), liabilities, losses, damages, proceedings, or demands suffered or incurred by the Indemnified arising out of or in connection with:
(i) Your use or misuse of the Services or any person to whom Users have granted access to the Services;
(ii) Your failure to comply with these terms and conditions; and/or
(iii) Any other activity related to your Account whatsoever (including, without limitation, negligent, wrongful or fraudulent conduct).
9.2 TXT2GET reserves the right, at it own expense, to assume the exclusive defence and control of any matter otherwise subject to defence by you, in which event you will cooperate with TXT2GET and its counsel in the conduct of such defence.
10. Anti-Spam Policy
10.1 TXT2GET strictly prohibits spamming activities of any kind. Spam is defined as including, but not limited to, the following:
(i) Messages addressed to a recipient with whom the User does not have an existing business or personal relationship or is not sent at the request or consent of the recipient; or
(ii) Messages that are sent that are misleading to potential referrals, misrepresenting User's affiliation with a person or entity, unrelated to Users, or posted in excessive volume.
10.2 For the sake of clarity, any act of spamming shall be a breach of these terms and conditions.
11. Push Texting
11.1 This clause 11 applies to the use by Users of the functionality to 'push' text messages to the mobile phones of the User's customers (or other databases) for whom the User has a mobile phone number.
11.2 All prices specified for 'push' texting are for text messages sent to New Zealand mobile numbers only. 'Push' texting to overseas numbers is not currently available.
11.3 The recipient's consent (either explicit or implicit, and in accordance with all applicable laws such as the Unsolicited Electronic Messages Act 2007) must be obtained by the User from each recipient before sending or initiating the sending of any message to the recipient. A User must not push a message to a recipient who has not provided such consent.
11.4 If any charges are to be borne by the recipient as a result of receiving any 'push' text the recipient must be clearly informed in advance of the charges and the User must hold an express or implied consent from the recipient as to acceptance of such charges.
11.5 Recipients of 'push' texting must be provided with the option to opt-out of receiving 'push' text messages at any point of time. The ability to "opt-out" must be clearly stated and must be easy for a recipient to action. No charges must be levied on a recipient for opting out of any future 'push' texting.
11.6 'Push' texting messages should not be sent between the hours of 9pm and 8am Monday to Friday and 9pm to 9am on Saturdays, unless the recipient has expressly consented otherwise. 'Push' texting messages should not be sent on a Sunday, National, State or religious holiday.
11.7 If a message is sent to a recipient whose details are stored in a marketing database, the message content must:
(i) Commence with the phrase "[FreeMsg]";
(ii) Include clear and accurate information about the person or business that is responsible for sending the message. At a minimum the message must include some form of traceable identification regarding the identity of the sender such as company name, contact number, email address or return mobile number;
(iii) Not use any implied personal message or any other message which creates a false imperative to reply (e.g. 'I miss you' or 'Urgent, please call');
(iv) Not include any adult related language or content;
(v) Include clear details of the unsubscribe or STOP functionality to enable the recipient to stop any further marketing messages.
11.8 All marketing and 'push' texting must be presented and conducted in a responsible manner, and should take into consideration the nature of the recipients.
11.9 A User must ensure that a recipient of a message is removed from the User's database (and that no further messages are sent to such recipient without their express consent) immediately upon such recipient exercising the unsubscribe or STOP function. This responsibility rests solely with the User.
12. TXT2WIN Campaigns
12.1 TXT2WIN campaigns - also known as sweepstake, competition, contest or giveaway - are campaigns that are setup with the intention of awarding the texter a prize or to enter a draw to win a prize.
12.2 Standard TXT2WIN campaigns must be on 20c plan and should not be on a zero rated code (no cost to texter).
12.3 TXT2WIN campaign advertising must be clear and easy to read and the text price must be included
12.4 Advertisers must have their own terms and conditions explaining how the prizes are allocated/draw date times and how the winners will be notified. These terms and conditions must be easily accessible.
12.5 Prize cannot be alcoholic beverages
12.6 TXT2Win entrants are not allowed to be contacted outside of the competition unless permission given (this must be via a JOIN keyword or similar). For instance, TXT HONEY to join etc.
12.7 If part of the competition includes the entrant releasing personal data (i.e. email address, name, and physical address) how this information is treated/used for should be in the terms and conditions or Privacy Policy (Privacy Policy is encouraged around campaigns that require personal data collection).
12.8 TXT2WINS must have an 0800 number
12.9 Entrants must have equal opportunity to win prizes and the competition should be fair.
12.10 Winner selection must be fair and in some cases require a scrutinizer to be present. (Police, or a Justice of the Peace or even a client contact). This is usually for high profile campaigns and those which are of a significant prize amount.
12.11 If other mediums are also included in the entry flow, these mediums must also advertise clearly how to enter. (e.g. Web)
12.12 Staff of the promoter are not able to enter
12.13 For further information on Sales Promotions view the DIA Gambling Act Fact Sheet, on Anit-Spam Legislation view Unsolicited Electronic Messages Act 2007 and for Advertising Standards Authority Guidelines view the ASA Advertising Guidelines.
13. Breach and Cessation of Account
13.1 You are solely responsible for properly stopping the Services. This can be done by logging on to your account via the Website and de-activating all live Campaigns. An email or phone request to cancel an Account is not considered cancellation.
13.2 Should you cancel your Account or stop/de-activate any Campaign before the end of a current paid up month, your cancellation or Campaign stop will take effect immediately and no refunds will be provided.
13.3 TXT2GET, in its sole discretion, has the right to suspend or terminate your Account and refuse any and all current or future use of the Services, for any reason at any time (including, without limitation, if a User breaches these terms and conditions) or if TXT2GET receives any complaint relating to any of your User Content). Such termination will result in the deactivation or deletion of your Account or access to your Account, and the forfeiture and relinquishment of all User Content in your Account. TXT2GET reserves the right to refuse access to the Services to anyone for any reason at any time. TXT2GET accepts no liability for any Campaign history, content, or other data lost as a result of the suspension or termination of an Account.
13.4 If your Account has not been logged into for a period of three months, any deactivated Campaigns in your Account may be deleted by TXT2GET without any liability whatsoever to you.
14. Privacy
14.1 TXT2GET collects personal information about you through your use of the Services and the Website, including:
(i) Your registration details and other details relating to your Account; and
(ii) Information relating to your use of the Services.
14.2 You agree that TXT2GET may use this personal information to assist it to provide the Services to you, for internal research purposes, to verify your identity, for promoting and marketing other TXT2GET products and Services to you, and for any other use that you authorise.
14.3 TXT2GET shall not sell or allow third parties to access your personal information without your consent. TXT2GET shall release Account and other personal information only when we believe such release is appropriate to comply with law; facilitate court proceedings; enforce or apply our terms and conditions; or protect the rights, property, or safety of TXT2GET, Users, or others.
14.4 If a User is an individual (as defined in the Privacy Act 1993) the User shall have the right to request TXT2GET for a copy of personal information held in relation to that User and the right to request TXT2GET to correct any such personal information.
15. General
15.1 These terms and conditions are governed by the laws of New Zealand. You submit to the non-exclusive jurisdiction of the Courts of New Zealand.
15.2 If any provision of these terms and conditions becomes or is held to be invalid, unenforceable or illegal for any reason, and in any respect, that provision shall be severed from the remaining terms and conditions, which shall continue in full force and effect.
15.3 These terms and conditions supersede all previous conditions, understandings, commitments, agreements and representations whatsoever whether oral or written, and constitutes the entire agreement, between the parties, relating to the subject matter of these terms and conditions.
15.4 Nothing in these terms and conditions is intended to create any agency, partnership, joint venture or employer-employee relationship between you and TXT2GET.
15.5 Except as stated otherwise, any notices must be given by registered ordinary post (or if posted to or from a place outside New Zealand, by registered airmail) or by facsimile transmission to TXT 2 Get Limited, [include addressPO Box 8429, Symonds Street 1150, Auckland, New Zealand], Fax: [include fax number] (in the case of TXT2GET) or to the email address you provide to TXT2GET during the registration process (in your case). Alternatively, TXT2GET may give you notice by certified airmail, postage prepaid and return receipt requested, to the address provided to TXT2GET during the registration process, or as updated by you as relevant. Any notice shall be deemed given (a) if sent by email, 24 hours after the email is sent, unless the sending party is notified that the email address is invalid, (b) if sent by pre-paid post, three Business Days after the date of posting, and on the seventh Business Day if sent to or posted from outside New Zealand, and (c) if sent by facsimile transmission, on the Business Day the transmission is sent (as long as the sender has a confirmation report recording that the facsimile was successfully transmitted). For the purposes of this section, "Business Day" means a day on which banks are open for general business in Auckland, New Zealand, other than a Saturday, Sunday or public holiday.
15.6 The agreement between TXT2GET and you may be assigned by TXT2GET to a third party without your consent in the event of a sale or other transfer of some or all of the assets of TXT2GET. In the event of any sale or transfer you will remain bound by such agreement. You may not assign your rights or obligations under this agreement without the express written consent of TXT2GET.
15.7 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section of these terms and conditions.
15.8 TXT2GET's failure to act with respect to an anticipated or actual breach by you or others does not constitute a waiver by TXT2GET of such breach or of its right to act with respect to subsequent or similar breaches.
15.9 Sections 7 (Fees, Account and Variable Direct Debit Authorisation), 8 (Disclaimer of Warranty and Limitations of Liability), 9 (Indemnification), 13 (Privacy), and 14 (General), and any other provisions of these terms and conditions which expressly or by implication survive termination or expiry, shall survive termination or expiration of the agreement between TXT2GET and you and the closure of your Account.