Vortext Terms & Conditions

Last Updated Tuesday, January 31, 2012

1.Introduction

1.1 Vortext is the trading name of i-Text Limited, a company incorporated in New Zealand under number 2494088, ("Vortext") provides certain marketing, software, and infrastructure services relating to short code and keyword SMS messaging ("the Services").

1.2 These terms and conditions are the terms on which Vortext offers you access to the Services and the Website. By registering keywords or short codes with Vortext 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 Vortext may amend these terms and conditions 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 short code 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 Vortext short code to initiate a Campaign;

"VortextWIN" 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 Vortext 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.vortext.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 Vortext 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 Vortext to ensure it is kept current at all times. Vortext 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 Vortext 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, Vortext 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 Vortext, 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 Vortext will send you emails relating to your Account, transactions and other activities on the Website, and for promoting and marketing other Vortext products and services to you.

4. Rights and Obligations of Vortext

4.1 Vortext 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 Vortext 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 Vortext 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, Vortext 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, Vortext assumes no responsibility for the corruption of any data or information held by Vortext.

4.4 There is no obligation on Vortext to pre-screen keywords, short codes or User Content. Vortext reserves the right to immediately terminate your Account or remove any keywords, short codes 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.

4.5 Vortext 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.

4.6 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, Vortext 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, short code, or User Content or other material or information using the Services or the Vortext 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, short code or User Content does not breach this clause 5.2. You agree that Vortext 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 Vortext consider that you are in breach of this clause 5.2 at any time.

5.3 Under no circumstances will Vortext be liable in any way for any keyword, short code or User Content, including, but not limited to, the subject matter of any keywords, short codes or User Content, any errors or omissions in any keyword, short code or User Content, or for any loss or damage of any kind incurred as a result of the use of any keyword, short code or User Content posted, emailed, transmitted or otherwise made available via the Website or the Services.

5.4 You hereby authorise Vortext 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 Vortext.

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 Vortext. To clarify, any database that enters the Vortext system by any means is the property of Vortext and removal of these databases is only by written concent from Vortext.

5.7 Should the Services suffer irretrievable data loss, Vortext may require you to restore your data from copies from your own backup, and you agree that Vortext 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 Vortext on the Website;

(iii) Comply with all applicable laws and regulations;

(iv) Not take any action that imposes or may impose (in Vortext’s discretion) an unreasonable or disproportionately large load on the Services, the Vortext system, or Vortext’s infrastructure;

(v) Not use the Services or the Vortext 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-license 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 Vortext to transmit information you upload or input into the Vortext system, so that Vortext does not violate any rights you might have in that information (including any intellectual property rights), you agree to grant Vortext a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub licensable (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 Vortext 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 Vortext. Vortext claims no ownership interest in (and accepts no liability for) the User Content provided by Users.

6.2 Vortext reserves the right to delete any keyword(s) reserved by a User if Vortext, 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 Vortext will have no liability to the User for deletion of such keyword(s).

7. Fees, Account and Variable Direct Debit Authorisation

7.1 Vortext charges fees for the use of the Services. Vortext’s current fees are listed on the pricing page of the Website and Vortext reserves the right to change the fees charged for the Services at any time by 20 days notice by Vortext 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 Vortext.

(i) Vortext 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) Vortext 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 Vortext;

(b) Stop payment of any Direct Debit to be initiated under this authority by Vortext 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 7.1 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 Vortext receives actual notice of such event;

(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 Vortext;

7.2 If the User's bandwidth usage exceeds the average bandwidth usage (as determined solely by Vortext) of other Users, Vortext reserves the right to on-charge such additional costs to the User via the Direct Debit authority referred to in clause 7.1.

7.3 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.

7.4 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 Vortext 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 Vortext 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. Vortext’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 Vortext must be made by notice in writing to Vortext within 12 months of the claim or cause of action arising. Vortext 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 Vortext is found liable to you or any third party the liability of Vortext shall be limited to the greater of (a) the total fees paid by you to Vortext 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 Vortext 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 Vortext 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 Vortext 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 Vortext and its counsel in the conduct of such defence.

10. Text Message Campaigns

10.1 This clause 10 applies to the use by Users of the functionality to send text messages to the mobile phones of the User's customers (or other databases) for whom the User has a mobile phone number.

10.2 All prices specified for text message campaign are for text messages sent to New Zealand mobile numbers only. Texting to overseas numbers is not currently available.

10.3 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 send a message to a recipient who has not provided such consent.

10.4 If any charges are to be borne by the recipient as a result of receiving any text message 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.

10.5 Recipients of text campaigns must be provided with the option to opt-out of receiving 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 text messages.

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

(i) 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;

(ii) 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');

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

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

10.7 All marketing and text message campaigns must be presented and conducted in a responsible manner, and should take into consideration the nature of the recipients.

10.8 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.

11. Breach and Cessation of Account

11.1 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.

11.2 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.

11.3 Vortext, 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 Vortext 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. Vortext reserves the right to refuse access to the Services to anyone for any reason at any time. Vortext accepts no liability for any Campaign history, content, or other data lost as a result of the suspension or termination of an Account.

11.4 If your Account has not been logged into for a period of three months, any deactivated Campaigns in your Account may be deleted by Vortext without any liability whatsoever to you.

12. General

12.1 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.

12.2 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.

12.3 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.

12.4 Nothing in these terms and conditions is intended to create any agency, partnership, joint venture or employer-employee relationship between you and Vortext.

12.5 The agreement between Vortext and you may be assigned by Vortext to a third party without your consent in the event of a sale or other transfer of some or all of the assets of Vortext. 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 Vortext.

12.6 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.

12.7 Vortext’s failure to act with respect to an anticipated or actual breach by you or others does not constitute a waiver by Vortext of such breach or of its right to act with respect to subsequent or similar breaches.

12.8 Sections 7 (Fees, Account and Variable Direct Debit Authorisation), 8 (Disclaimer of Warranty and Limitations of Liability), 9 (Indemnification), 12 (General), and Vortext’s Privacy Policy 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 Vortext and you and the closure of your Account.