Terms and Conditions

 

1.

  

Why you need to read these terms

1.1

  

These terms are an agreement between us (Synergy Group Worldwide Limited t/a SynergyTxT) and you, the entity or individual entered in the Organization form on the Website. These terms come into effect once you have completed the registration process on the Website. Therefore it is important that you read and understand them. We do change them occasionally but they don’t become effective until 30 days have passed from the date we post them on the Website so it is worth checking back regularly.

 

2.

  

Definitions

2.1

  

To shorten the length of this document we have used some abbreviations:

  

(a) "Account" means the account you create when you register on our Website;

  

(b) "Campaign" means the automated text or email response(s) that you set up using our Services which are initiated by the Keyword and Shortcode combination or QR Code given to the Texter;

  

(c) “Charity Campaign” means a Campaign set up by a registered New Zealand charity for fundraising purposes;

  

(d) "Content" means the content of any Campaign which you create or which you ask us to create for you;

  

(e) “Keyword” means the word which a Texter texts to a Shortcode to initiate a Campaign and includes derivative keywords using the @ function which derive from a Keyword;

  

(f) “Main Contact” means the individual nominated by you as the main contact for the Account;

  

(g) “Price Plan” means the price list published on our Website as amended from time to time;

  

(h) “QR Code” is a quick response code used by a Texter to initiate a Campaign;

  

(i) “Services” means the text message marketing services and any add on services provided by us to you;

  

(j) “Shortcode” means the three or four digit code provided by us to which a Texter texts your chosen Keyword to initiate a Campaign;

  

(k) “Subscription” means the subscription paid by you for access to our Services;

  

(l) "Texter" means a person that sends a text or SMS message to one of our Shortcodes or uses a QR Code to initiate a Campaign;

  

(m) "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;

  

(n) "Website" means our website at www.synergytxt.co.nz and the source code and software run through the Website which makes up the Services.

 

3.

  

How to Register for an Account

3.1

  

You create an Account by completing the registration form on our Website.

3.2

  

When you complete the form you warrant that:

  

(a) If you are an organization, that you are incorporated within New Zealand;

  

(b) If you are in individual, you are a New Zealand citizen or resident;

  

(c) Your Main Contact is over 18;

  

(d) You have provided accurate information to us when you register including a valid email address.

3.3

  

If your details change you must let us know.

3.4

  

You must not register under false or multiple identities.

3.5

  

We may decline to register any person who completes the registration form in our sole discretion or terminate your Account if a serious complaint or multiple complaints are received about you from Texters, if you breach these terms and conditions, or if we deem your behaviour to be unacceptable.

 

4.

  

Your Use of the Account

4.1

  

You agree:

  

(a) Not to permit any person other than the Main Contact to use your user name or Account – multiple people using the same login is not permitted; and

  

(b) 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.

4.2

  

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.

4.3

  

We will send you emails relating to your Account, transactions and other activities on the Website, and for promoting and marketing our products and services to you. We may also send regular electronic newsletters.

 

5.

  

Terms Under Which We Provide the Services

5.1

  

We only provide a text marketing service and we do not take any part in the sale of your goods or services.

5.2

  

We may amend or modify the Services at any time for any reason, and without notice or liability to you or any third party.

5.3

  

We will use reasonable endeavours to ensure the availability of the Website and Services, subject to any downtime required for maintenance or technical faults. However, we are not responsible for any system unavailability, or for any loss that is incurred as a result of the Website or the Services being unavailable. Further, we assume no responsibility for the corruption of any data or information held by us.

5.4

  

We provide technical support by way of email correspondence.
We provide telephone support and telephone training support where and when required.

5.5

  

We don’t always pre-screen Keywords, Shortcodes or Content. We reserve the right to immediately terminate your Account or remove any Keywords, Shortcodes or Content without notice if you are in breach of these terms and conditions.

5.6

  

We do not promise that:

  

(a) The Services will meet your specific requirements;

  

(b) The Services will be uninterrupted, timely, secure, or error-free;

  

(c) The results that may be obtained from the use of the Services will be accurate or reliable;

  

(d) The quality of any products, services, information, or other material purchased or obtained by you through the Services will meet your expectations; or

  

(e) Any errors in the Services will be corrected.

5.7

  

You acknowledge that your use of the Services is at your sole risk and the Website and the Services are provided on an "as is" and "as available" basis. All terms which may be implied by law are excluded to the maximum extent possible under law.

5.8

  

We will not be liable for any Keyword, Shortcode, QR Code or Content, including, but not limited to, the subject matter of any Keywords, Shortcodes, QR Codes or Content, any errors or omissions in any Keyword, Shortcode, QR Code or Content, or for any loss or damage of any kind incurred as a result of the use of any Keyword, Shortcode, QR Code or Content posted, emailed, transmitted or otherwise made available via the Website or the Services.

 

6.

  

What you agree to

6.1

  

You agree to use the Services to procure Texters purely on an opt-in basis (i.e. SMS messages and/or other messages must not be sent to Texters who have not requested them).

6.2

  

You must not upload, register or transmit any Keyword, Shortcode, or Content or other material or information using the Services or Website that:

  

(a) 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

  

(b) Is discriminatory under the Human Rights Act; or

  

(c) Is false, inaccurate, misleading or deceptive;

  

(d) Contains any malicious code, a virus, malware or is otherwise designed to harm another person’s IT infrastructure; or

  

(e) Interferes with or disrupts (or attempts to interfere with or disrupt) our Website or IT infrastructure.

6.3

  

We 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 we consider that you are in breach of this clause 6.2 at any time.

6.4

  

You give permission 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.

6.5

  

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 us.

6.6

  

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 our express written permission.

6.7

  

Should the Services suffer irretrievable data loss, we may require you to restore your data from copies from your own backup, and you agree that we will have no liability for any direct or indirect loss in the event of irretrievable data loss.

6.8

  

In all use of the Website and the Services you shall:

  

(a) Comply with these terms and conditions (as amended);

  

(b) Comply with all policies and procedures posted on the Website;

  

(c) Comply with all applicable laws and regulations;

  

(d) Not take any action which imposes or may impose (in our discretion) an unreasonable or disproportionately large load on the Services, our system, or infrastructure;

  

(e) Not use the Services to harass, stalk, hoax, abuse or threaten any other person or distribute illegal contests, pyramid schemes, chain letters or multi-level marketing campaigns;

  

(f) Not interfere or attempt to interfere with the proper working of the Website or the Services;

  

(g) Not harvest or otherwise collect information about Texters without their consent.

6.9

  

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 50cents on our 5405 code or (standard tc apply) on our 884 code"). 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.

6.10

  

You are responsible for all activity on your Account (including all Content posted in connection with your Account) even where such activity is actioned by a person who is not the Main Contact and regardless of whether such person is acting with or without your permission.

6.11

  

You shall ensure that you comply with the Unsolicited Electronic Messages Act 2007 and you acknowledge and agree that when a Texter requests Content by initiating a Campaign this does not give you the right to continue to communicate with the Texter unless the Texter has given their consent (express or implied) to such continued communications.

6.12

  

You grant us a royalty free license to use your Content and any IP rights in the Content solely in order to provide the Services.

 

7.

  

Trademarks and Copyrights

7.1

  

You agree that we own or are 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.

7.2

  

We reserve the right to delete any Keyword(s) reserved by you if we, in our discretion, consider such Keyword(s) to be associated with a brand, product, or trademark that is owned by a person or entity other than you. In such event, no refunds will be made and we will have no liability to you for deletion of such Keyword(s).

 

8.

  

Price and payment

8.1

  

You agree to pay the Subscription for the Services as published in our Pricing Plan. We may alter our Subscriptions by giving 20 days notice.

8.2

  

Payment of Subscriptions must be made in advance before you commence using the Services and may be made by internet transfer or credit card.

8.3

  

We may also charge additional Fees for added services as stipulated in our Price Plan. Payment for additional Fees must be made within 14 days of the date of the invoice. In the event that payment is not made by the due date, we may:

  

(a) Suspend your access to the Website and Services until payment is made; or

  

(b) Charge interest at the rate of 10% 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;

  

(c) Terminate your Account without any liability to refund to you any part of your Subscription for unused months.

8.4

  

There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an Account.

8.5

  

All fees are exclusive of GST and in New Zealand dollars unless otherwise stated.

 

9.

  

Our Liability To You

9.1

  

We exclude all liability for any loss which you suffer (whether direct, indirect, consequential or loss of profits), arising from your use of the Services and Website to the fullest extent permitted by law.

9.2

  

Without limiting clauses 9.1, if we are found liable to you or any third party our liability shall be limited to the greater of (a) the total fees paid by you to us in the 12 months prior to the action giving rise to the liability, and (ii) $1,000.

9.3

  

You agree to indemnify us, from and against all actions, claims, costs (including legal costs and expenses), liabilities, losses, damages, proceedings, or demands suffered or incurred by anyone arising out of or in connection with:

  

(a) Your use or misuse of the Services or any person to whom you have granted access to the Services;

  

(b) Your failure to comply with these terms and conditions; and/or

  

(c) Any other activity related to your Account whatsoever (including, without limitation, negligent, wrongful or fraudulent conduct).

9.4

  

We reserves the right, at our 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 us and our counsel in the conduct of such defence.

 

10.

  

Push Texting

10.1

  

You must have the recipient’s consent in accordance with the Unsolicited Electronic Messages Act before engaging in push texting with that recipient.

10.2

  

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 you must hold an express or implied consent from the recipient as to acceptance of such charges.

10.3

  

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.

10.4

  

'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.

10.5

  

If a message is sent to a recipient whose details are stored in a marketing database, the message content must:

  

(a) 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;

  

(b) 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');

  

(c) Not include any adult related language or content;

  

(d) Include clear details of the unsubscribe or STOP functionality to enable the recipient to stop any further marketing messages.

10.6

  

All marketing and 'push' texting must be presented and conducted in a responsible manner, and should take into consideration the nature of the recipients.

10.7

  

You must ensure that a recipient of a message is removed from your 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.

 

11.

  

TXT2WIN Campaigns

11.1

  

Standard TXT2WIN campaigns must use our 884 code and should not be initiated without our prior approval. Approval shall be requested by completing our TXT2WIN questionnaire. Approval will not be provided unless:

  

(a) The TXT2WIN campaign advertising is clear and easy to read and the text price is included (for Telecom and Vodafone texts costs 0.20 cents and for2Degrees texts cost 0.09 cents for the Texter);

  

(b) You have your 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;

  

(c) Where entrants are required to provide personal information, you have a privacy policy

11.2

  

Prize cannot be alcoholic beverages or products which we deem inappropriate.

11.3

  

TXT2Win entrants are not allowed to be contacted outside of the competition unless permission given (this must be via a JOIN keyword or similar).

11.4

  

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.

11.5

  

Entrants must have equal opportunity to win prizes and the competition should be fair.

11.6

  

Winner selection must be fair and in some cases require a scrutineer 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.

11.7

  

Your employees are not able to enter a TEXT2WIN Campaign.

 

12.

  

Charity Campaigns

12.1

  

In order to be eligible to set up a Charity Campaign, you must:

  

(a) Be registered under the Charities Act 2005;

  

(b) Have a toll free telephone number for use during the Charity Campaign

  

(c) Provide evidence of your registration under the Charities Act 2005.

12.2

  

To apply for a Charity Campaign you must complete an application form. Approval of applications can take up to 8 weeks.

12.3

  

Upon approval being granted your Shortcode will endure for three months only before automatically expiring.

12.4

  

In addition to our fees as set out in our Price Plan or advised to you on application, the telecommunication provider may deduct a fee from the donations transmitted to your account. The donation amount is set at $3 per text and may not be altered.

 

13.

  

Breach and Termination of Account

13.1

  

You may terminate your Account by providing 14 days notice through the Website. Refunds of Subscriptions for unused months will not be provided.

13.2

  

Your Account shall automatically terminate at the end of a Subscription period unless payment has been made for a new Subscription period.

13.3

  

We may terminate or suspend your Account in the event that you breach these Terms.

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 without any liability whatsoever to you.

 

14.

  

Privacy

14.1

  

We collect personal information about you through your use of the Services and the Website, including:

  

(a) Your registration details and other details relating to your Account; and

  

(b) Information relating to your use of the Services.

14.2

  

You agree that we may use this personal information to assist us to provide the Services to you, for internal research purposes, to verify your identity, for promoting and marketing other products and Services provided by us, and for any other use that you authorise.

14.3

  

We shall not sell or allow third parties to access your personal information without your consent. We 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 us or our clients.

14.4

  

If you are an individual your rights under the Privacy Act shall apply.

 

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 us.

15.5

  

Except as stated otherwise, any notices shall be given by email to your nominated email address entered on our registration form. Notices to us shall be made by email to info@synergytxt.co.nz.

15.6

  

We may assign this agreement to a third party without your consent in the event of a sale or other transfer of some or all of our assets in which case you will remain bound by such agreement. You may not assign your rights or obligations under this agreement without our express written consent.

15.7

  

Our failure to act with respect to an anticipated or actual breach by you or others does not constitute a waiver of such breach or of our right to act with respect to subsequent or similar breaches.

15.8

  

Provisions of these terms and conditions which expressly or by implication survive termination or expiry, shall survive termination or expiration of this agreement.