Text Terms & Conditions (Non Australian Customers)

Contents

1. Texta Terms of Service Agreement
2. Definitions and Construction
3. What is Texta?
4. Who Can Join Texta?
5. How Long Do I Have To Sign Up For?
6. What Does It Cost?
7. How Do I Pay?
8. Refunds
9. Who Am I Allowed to Send Electronic Communications To?
10. What Are My Obligations?
11. Are there Any Restrictions?
12. Security Breaches
13. When Can We Terminate, Suspend or Restrict Your Texta Account?
14. What Happens on Termination?
15. Liquidated Damages and Costs
16. DisputesLimitation of Liability
17. General Terms

1. Texta Terms of Service Agreement

This document sets out the terms and conditions for your use of Texta, which is a service offered by CyberCom Hospitality Solutions Limited a company duly incorporated in New Zealand with the company number: 1607423 and registered address: 18 Amante Crescent, Mairangi Bay, Auckland, 0630 , New Zealand. (hereafter referred to as “CyberCom”) (“Texta Service Agreement”). Please read it carefully and retain it for future reference. This document is also available online at https://textahq.co.nz/terms-conditions/. By signing up to become a subscriber you are agreeing to the terms of use of Texta, and you warrant that you have full authority to enter into this agreement either on your own behalf or on the behalf of a company, organisation or other entity that you represent.

The Texta Service Agreement comes into effect from the date that you register for Texta and you agree to be bound by the terms and conditions contained the Texta Service Agreement from that date. If you are uncertain about any aspects of the Texta Service Agreement we suggest that you ask your lawyer to explain this agreement and its effect to you before you register to become a Texta subscriber.

We may amend the Texta Service Agreement at any time by posting a revised version on our website. Any amendments are effective 24 hours from the time that the revised Texta Service Agreement is posted. You are responsible for reviewing the Texta Service Agreement on a regular basis to ensure that you are aware of any changes that we may make.

It is an offence in New Zealand to send unsolicited commercial electronic communications (Unsolicited Electronic Messages Act 2007 “UEMA”). Your use of Texta is strictly on the basis that you agree to comply with the UEMA. It is your responsibility to ensure that you are familiar with the provisions and requirements of the UEMA including any amendments to the Act.

2. Definitions and Construction

API: means application programming interface which is a set of routines, protocols, and tools for building software applications.

Electronic communications: means all communications that are digitally encoded and sent by electronic means.

Intellectual property rights: means all forms of intellectual property rights and protections of a party and may include, without limitation, all right, title and interests in any patents; confidential information; trademarks whether registered or unregistered; proprietary indicia and copyright material.

ISP: means internet service provider.

SMS: means Short Message Service and is a text messaging service component of electronic communications.

Spam: means the practice of sending unwanted and unsolicited email, junk mail, or digital messaging, frequently with commercial content, in large quantities to an indiscriminate set of recipients.

UEMA: means Unsolicited Electronic Messages Act 2007 and any amendments to that Act or related legislation including any regulations.

3. What is Texta?

Texta is an SMS marketing platform which enables you to use advanced mobile messaging tools to send SMS (“electronic communications”) to anyone in New Zealand.You can use these to send any type of SMS including marketing messages, alerts, reminders, and surveys to a list of contacts that you can upload.

When you register we will provide you with the opportunity to create an account name and to choose a secure password. You will receive 25 free SMS when you register for your account.

1. Who Can Join Texta?

You can join up as a Texta subscriber if are at least 18 years of age and able to legally enter into a binding contract. We may ask you to verify your identity and contact details by providing us with proof such as a copy of your passport, driver’s license or other identity document as well as proof of your current address.

Companies and other entities may also join up as Texta subscribers, however, we may require further information to verify the identity such as your certificate of incorporation.

Texta is only available within New Zealand and subscribers can only send SMS to devices with New Zealand mobile numbers.

1. How Long Do I Have To Sign Up For?

You do not have to sign up to any contracts. We have a prepaid option if you are unsure how often you will need to use Texta.Your prepaid credits never expire while your account remains active. Our prepaid rates are set out in our Pricing Schedule.

You can also sign up for a monthly plan.The minimum term is one month and you can cancel at any time after the first month by giving us two (2) weeks’ notice in writing. Our rates for the monthly plan are set out in the Pricing Schedule.

1. What Does It Cost?

The prices for Texta’s monthly plans and prepaid rates are set out in the Pricing Schedule and they are also on the website at https://textahq.co.nz/our-pricing/.

All prices are in New Zealand dollars.

We do not charge any set up fees.

The price includes any reply sent by the person receiving the SMS. We do not charge extra for any reply SMS.

We reserve the right to change our prices from time to time and the changes will be posted on our website.

If you have a monthly plan, any pricing changes will take effect from the date your next payment is due.

If you have purchased prepaid credits any pricing changes will take effect 24 hours after the changes have been posted on our website.

1. How Do I Pay?

Prepaid Credits

You can purchase credits online using a valid credit card. Once the purchase has been completed you can send SMS using the Texta service until your credit allocation is exhausted.

If your remaining credit reaches $10.00 we will ask you to top up or you can sign up for the automatic top-up facility when you register for your account.

Monthly Plans

Payments are for the full month and you will be billed in advance on the same day of the month or the closest day that you signed up with us (ie if you signed up on 20 March your next payment will be due on 20 April and so on.)

You are required to provide us with valid credit card details for the duration of your subscription to Texta, and while you have any outstanding balance with us.

You agree to update the credit card details or to replace that information with a further valid credit card for any credit card that expires, or where any payment is declined by your financial institution or credit card processor.

You warrant that you are authorised to use the credit card provided and that you will not request a chargeback for any charges that we may bill to your card for properly provided Texta services.

9. Refunds

We do not provide refunds except as required by law. In particular, we will not provide a refund if your electronic communications are blocked by any third parties.

10. Who Am I Allowed To Send Electronic Communications To?

We permit you to send electronic communications to those people who have given you written consent (including electronic) to send them electronic communications and they have not withdrawn that consent subsequently.

Texta is set up to automatically process any replies by message recipients which contain the works “Stop”, “unsubscribe” or “opt out”. We are required to confirm the opt out message by sending an automated reply.

The automated opt out reply is deducted from your prepaid credits or is included in the number of SMS included in your monthly plan.

11. What Are My Obligations?

You are required to comply with the UEMA at all times and any other legislation in force that may be applicable to your use of the Texta Service.

In particular you must not continue to send electronic communications to anyone who has elected to opt out of receiving further electronic communications from you.

Once you have successfully registered for Texta you will be required to choose an account name and password, which you must keep confidential. You are responsible for ensuring the confidentiality of the account name and password, and that any use of your Texta account is authorised.

You acknowledge that you are solely responsible for the content of any SMS transmitted by you or on your behalf. We are not responsible for the content of any SMS and have no obligation to review, amend or modify any SMS.

You must immediately notify us if there is any unauthorised use of your Texta account.

You agree to update any relevant information we may require such as your address and other contact details within ten (10) working days of any changes.

You agree that you will only use the content you load for Texta services.

You acknowledge that we own all of the intellectual property rights in the Texta service

You agree that you will not use any content in any electronic communication that is not created by you that you do not have permission to use.You warrant that you own all intellectual property rights in, or are licensed or authorised to use, any content that you upload or add to the website for the purpose of creating electronic communications.You further warrant that you have properly obtained releases for all related privacy and publicity rights.

You agree that you will not include in any electronic communications created or sent using Texta any information that you know, or should reasonably know, is misleading or incorrect.

You agree to receive occasional electronic communications from us concerning your account, upgrade offers, educational information and blog updates.

You agree to allow us to copy and transmit copies of the content of any electronic communications to develop algorithms, heuristics and computer tools to identify problems and breaches of the Texta Service Agreement.

12. Are There Any Restrictions?

We do not allow you to include or send in any electronic communication material or content that is or contains:

• Pornographic or sexually related text, pictures or other content.
• Defamatory statements or comments.
• Material that is obscene, indecent, abusive or otherwise offensive.
• Threatening or graphic violence.
• Any illegal content including offering to sell illegal substances.

We reserve the right to monitor any SMS in order to ensure compliance with the Texta Service Agreement.

You must not send any electronic communications that violate any New Zealand and Australian legislation where applicable including the violation of any anti money laundering or the countering of financing of terrorism legislation; or which seek to solicit money under false pretences (scams).

You may not use any lists of contact details for people you propose to end electronic communications to that you have purchased or rented from third parties.

13. Security Breaches

We take every precaution to ensure that the Texta Service is secure.In the event that there is an unauthorised security breach that may affect you or someone on your distribution list we will notify you of the breach and provide a description.

If we reasonably determine, and notify this to you, that the information should be forwarded to someone on your distribution list you agree to do so promptly. Failure to do so constitutes a breach of the Texta Service Agreement.

14. When Can We Terminate, Restrict or Suspend Your Texta Account?

We may block, suspend or terminate your account without notice to you if:

4. If we receive a request or notification by a network operator. Such a request will usually (although not always) be because of the amount of SPAM complaints received by the network operator.
5. If we receive any complaint about the content of any SMS sent by you.
6. If we believe (in our sole discretion) that you have abused our API.
7. If you breach any of the terms of the Texta Service Agreement.

15. What Happens on Termination?

We will remove any of your electronic communications and related data and/or files from our website and any other storage.

You remain liable to pay any outstanding charges including fees for the current month.

We may claim liquidated damages as calculated in clause 15 from you and you agree that we may deduct these from the credit card authority we hold. You warrant that you will not lodge a chargeback or seek a reversal for any liquidated damages we claim from you.

16. Liquidated Damages and Costs

You agree that if you breach this agreement we can recover liquidated damages from you. These damages have been calculated as being a reasonable estimate of the damage that would be incurred for any breach.

If you have a monthly plan: for any and each breach of this agreement you agree to pay liquidated damages in the amount of 5 timers the annual cost of the plan you have chosen (regardless of how long you have had the plan).

If you have prepaid credits: for any and each breach of this agreement you agree to pay 5 times the amount of prepaid credit you have purchased in the preceding 12 months.

Where any breach is a continuing breach you agree that each day that you remain in breach constitutes a separate breach for which liquidated damages are payable.

If you default on of your obligations to us under this agreement you will be liable to pay all of our costs and disbursements associated with that default including all of our actual legal fees and collection fees.

17. Disputes

The Texta Service Agreement is governed by New Zealand law and is subject to the exclusive jurisdictions of New Zealand courts and tribunals.

If a dispute of any kind arises we want to understand and address your concerns as soon as possible so we ask you to contact our Customer Service Centre as soon as possible.

If we cannot resolve any dispute with you we may agree to resolve the dispute using an informal dispute resolution process but this is at our sole discretion.

Unless required by law you must commence any proceeding against us in respect of any dispute within one year of the dispute arising.

18. Limitation of Liability

You assume all responsibility and risk of losses resulting from your use of the Texta Service. You agree that we are not liable for any losses or damage that you may suffer or that may be claimed against you for whatever reason.If we are liable then you agree that our liability is limited to the amount actually paid by you for one month of services (which also includes any liability for costs including legal costs) and you release us from any claim in excess of this limitation.

This Agreement is exclusive to customers that are Non Australian residents. Customers that are Australian residents will be governed by the Terms and Conditions of Texta Service Agreement (Australian Residents). By accepting the terms and conditions of this Texta Service Agreement you expressly and irrevocably accept that your relationship is duly with CyberCom Hospitality Solutions Limited and with no other legal entity affiliated or related to CyberCom Hospitality Solutions Limited. You expressly and irrevocably agree and accept to limit any of your claims, legal actions to CyberCom Hospitality Solutions Limited.

19. General Terms

We make no warranties in respect of the Texta Service or the material on the website.

You agree to indemnify us from all losses (including any costs) resulting from any claims that are not permitted to be brought under the Service Agreement and from any claims brought by any third parties in respect of your Texta account or your use of the Texta Service (whether authorised by you or not).

You agree that we can update the Texta Service Agreement and provide other notices and information to you about your Texta Account by posting to our website, or by emailing it to you at the email address you have notified to us. You agree that any notices are considered to have been received by you within 24 hours of the time it was posted to the website or emailed to you unless we receive notice that the email was not delivered.

You agree that all information you receive about any users or entities associated with the Texta Service is confidential and you will not disclose it or use for any purposes other than in connection with the Texta Service. You may not use any information for marketing purposes without the express consent of the user or entity.

You may not assign the Texta Service Agreement but we may assign the Texta Service Agreement without restriction.

We are not liable for any delay or failure to perform the Texta Service Agreement due to any acts beyond our control including but not limited to interruptions caused by hackers or other illegal third party activity, or any internet service provider or telecommunications carriers.

You agree to abide by the terms of our Privacy Policy which is incorporated into the Texta Service Agreement.