EMSG/Msgwrx & Powerpage Terms & Conditions of Service
EMSG/Msgwrx & Powerpage: Trade names of Christopher Newcome & Associates Ltd, Box 331625, Takapuna, Auckland, New Zealand
Customer: The legal entity being party to this agreement
Service: Provision of Customer access to software, data and equipment comprising the EMSG Service
Charges: Billing transactions for Customer
Account: Address, contact details and summary of Charges for Customer.
Prices: Quoted in New Zealand dollars ($NZD) and excluding or including Goods & services Tax (GST) as indicated on the price list
Shipping: Charged extra where applicable at least cost, best method basis. Urgent shipments attract additional charges. EMSG cannot ship a customer order until full payment is received, whilst risk in the Goods & Services provided passes to the customer upon dispatch
Refund Policy: EMSG does not have to provide a refund if a customer changes their mind about a particular purchase, so the customer must choose carefully. If the service is faulty, EMSG will meet its obligations under the Consumer Guarantees Act to provide a remedy
Privacy Notice: EMSG will not share any customer information with anyone, except where required to do so by law. Where EMSG is required to share any customer information by law, it will notify the Customer accordingly
Unsolicited Electronic Messages Act 2007: The Customer will not send unsolicited messages using the Service in breach of the Act. The Customer grants EMSG permission to send messages of an informational/promotional nature to them using sms/txt, email or phone call
The Customer may opt-out from receiving sms/txt by replying STOP to any message, by email or by telephoning +6494895801
Network: Telecommunications and computing services, including Internet, public telephone, mobile and paging services, digital, frame relay, X.25 and any other communications service provided by any telecommunications service provider, and any computer system and associated peripheral device being part of and associated with the enablement of the Service
1. OWNERSHIP: The Customer acknowledges that all components of the Service (including copyright, trade secrets and any other right, title and interest therein), whether copiable to the Customerís own computer system or not, are the sole property of EMSG, and that the Customer shall gain no right, title or interest in the Service by virtue of this agreement other than the non-exclusive right of use granted herein. Without limiting the foregoing the Customer specifically acknowledges EMSGís exclusive ownership of any modification, translation or adaptation of the Service, and any other improvement or development based thereon, which is developed, supplied, installed or paid for by or on behalf of the Customer.
2. SERVICE USE: EMSG grants the Customer an individual non-transferable and non-exclusive right to use the Service. EMSG does not resell, warrant or otherwise represent, other than an undertaking to adopt best practice management of reliability and incidental expenditure of the Network, any component of the Network to the Customer as part of providing the Service. The Customer agrees that the Service will only be used for the benefit of the Customer and its subsidiaries.
The Customer will not use the Service in violation of this agreement, of any applicable laws or regulations, nor use the Service in the performance of any unlawful act. The Customer shall indemnify EMSG against liability for any loss or damage, which may arise from any use of the Service not authorised by the EMSG, to any party.
The Customer must keep all private access details (passwords) confidential at all times, and report any loss of confidentiality immediately to EMSG. The Customer is liable for any Charges incurred on its Account up until reporting such loss to EMSG.
3. LIMITATION OF LIABILITY: The Customer agrees that EMSG shall not be liable, on any grounds or basis whatsoever (including but not limited to negligence), to the Customer for loss or damage of any kind (including but not limited to loss of profits or other consequential loss) arising directly or indirectly from:
failure, malfunction, inaccurate operation and any other cause of failure of the Network in any way for any reason whatsoever causing the Service to be inoperative; any misuse, damage, defect, incorrect installation or maintenance of any equipment part of the Network; interception or distortion of any communication to or from the Customer by any means or person; any event or cause beyond the control of EMSG; termination of this agreement.
If for any reason EMSG is liable to the Customer on any grounds or basis whatsoever, the combined maximum liability shall be the value of the Service provided specifically affecting the cause of the liability. This clause shall survive termination of this agreement.
4. WARRANTY: EMSG warrants to the Customer that the Service does not violate any New Zealand, Australian or United States copyright or patent, and EMSGís sole obligation in respect of such a breach shall be to modify or replace the Service so as to eliminate the infringement or correct defective performance. The Customer shall give EMSG prompt written notice of any warranty claims.
The foregoing warranty shall not apply if any alleged infringement or defect derives
from a combination of the Service with any program, equipment, device or
Network not supported by EMSG or any modification or customisation of the
Service on behalf of the Customer.
All other conditions, warranties, representations, liabilities, and obligations, whether
implied or imposed by statute, including any conditions or warranties as to
merchantability, fitness for purpose or correspondence with description are hereby
excluded to the extent permitted by law. Provisions of statutes from time to
time in New Zealand may impose warranties or conditions or impose obligations on
EMSG which cannot be excluded, restricted or modified except to a limited
extent, and this Agreement is to be read and construed as subject to any such
5. TERMINATION: The Customer may terminate this agreement at any time on giving EMSG written notice of termination. EMSG may terminate this agreement without prior written notification if Charges are not paid when due, if the Customer misuses the Service in any manner, or if the Customer is otherwise in default of its obligations hereunder. Immediately upon termination the Customer shall pay to EMSG all outstanding Charges at the date of termination, whether or not they are due.
6. ASSIGNMENT & CONFIDENTIALITY: This Agreement is personal to the Customer and neither this Agreement or any of the Customerís rights or duties hereunder shall be assigned, sub-licensed, sold or otherwise transferred by the Customer, including to any successor-in-interest to the Customerís rights. The Customer may not assign this agreement to any other party without prior written consent of EMSG. EMSG may assign this agreement at any time.
No amendment of this Agreement or waiver of any rights hereunder shall be effective unless in writing and signed by the party against whom enforcement is sought. This Agreement contains the entire agreement and understanding of the parties as to the subject matter hereof and merges and supersedes all prior discussions and agreements with respect thereto.
7. GOVERNING LAW: This Agreement shall be governed by and interpreted in accordance with the laws of New Zealand.
8. PAYMENT: The Customer shall pay EMSG the registration fee specified on the Emsg Customer Registration form upon the signing of this Agreement by the Customer. Payment shall be made in full without deduction for any sales, use or other taxes or similar charges, which shall be borne exclusively by the Customer and, to the extent required by applicable law, collected by EMSG (or agent) from the Customer.
The Customer will be invoiced for the appropriate Charges as detailed on the Service registration form. Payment is due within SEVEN (7) days of invoice, and the invoice total must be paid in full by due date shown to ensure continuity of Service. A reconnection fee may apply for suspended Accounts. EMSG reserves the right to change any or all of the Charges upon twenty (20) days written notice to the Customer, and will be in accordance with the current rates and Charges as published on the EMSG web site from time to time.
9. DEFAULT: In the event of any breach by the Customer of this agreement EMSG may immediately, without further notice, withdraw the Service to the Customer.
10. CHANGE OF ADDRESS: The Customer shall give EMSG thirty (30) days prior written notice of any change of address.
11. KEYWORDS: The Customer warrants that they have the rights in title to use any Trademark, Logo or Brand in the form of a text keyword (Textword, Smartword or Intelliword) on the Emsg/Msgwrx system and undertakes to bear any costs associated with the unauthorised or illegal use of such Trade names. Emsg reserves the right to suspend any text word or its message content that could be regarded as offensive, has the possibility of infringing on the copyright of others or remains unused for a period of sixty (60) days.
12. OTHER MATTERS: EMSG may amend the terms and conditions of this agreement at any time by giving the Customer written notice. The amendment(s) will be effective thirty (30) days after the date of posting of the notice on the EMSG web site.
13. SERVICE & SUPPORT: Technical issues with the Service may be reported to EMSG by Email
or Telephone. Calls may be logged 7 days x 24 hours, and an EMSG representative will
respond to your call as soon as practicable during normal business hours. Maintenance of the Service, including
upgrading of equipment and software, will be required from time to time and the
Customer will be advised of Service outages on EMSG sites with due notice
except in circumstances beyond the control of EMSG.
On-site assistance, training, and isolation of problems directly associated with a particular Customerís environment or requiring a site visit by a EMSG representative will be charged at the current charge out rate to the Customerís Account and will include any necessary travel and accommodation expenses incurred.