Terms of Service
Your Contract with Us
In this document ‘we’ and ‘us’ refers to Mace IT Services of Auckland, New Zealand trading as Juniorlogs Student Management System.
- About this document
The Customer Terms apply to Text Messaging Service provided by us to you.
- Your Customer Contract
Your Customer Contract
(a) We supply Services to you under your Customer Contract. Your Customer Contract comprises, in order of precedence from highest to lowest:
(i) your Application Form;
(ii) the terms of your Juniorlogs agreement;
(iii) these Customer Terms; and
(b) The parties to the Customer Contract are the Customer (you) and the Supplier (we, us).
- The Term of Your Contract
(a) The Customer Contract will continue until the end of the Minimum Term and thereafter on a month to month basis until it is terminated in accordance with this Customer Contract.
(b) If your Plan or Application Form does not state a Minimum Term or is described as month-to-month, casual or no contract or similar, either party may terminate it on 30 days’ notice at any time without the imposition of any additional charges.
(c) Your Customer Contract will commence upon our acceptance of your Application Form (whichever happens first).
Provision of Our Services
- The Services(a) We will provide to you a non-exclusive, non-transferable, licence for the Services subject to the terms of your Customer Contract.
(b) We may provide the Services using such facilities and such Carrier as we choose from time to time.
(c) We may provide the Services using Our Facilities and/or third party Provider Facilities. Together, we call those Facilities our Network.
- Compliance with Policies
(a) You must comply with any applicable Acceptable Use Policy or any Anti-Spam Policy we publish on our website or make available to you.
(b) You must comply with any policy we publish on our website or make available to you directed to ensuring that the use of a Service complies with all Laws.
- Operational Directions
(a) Acting reasonably, we may give operational directions about a Service. Operational Directions will be directed to the safety, security or reliability of Facilities, compliance with Laws or dealing with an emergency. We will only give an Operational Direction as and when reasonably necessary.
(b) You must comply with any applicable Operational Direction.
- Provider Requirements – General
(a) Telecommunications services, including many of our Services, are commonly provided by means of Provider Facilities, provided by third party Providers.
(b) A Provider may only permit us to provide Service to you subject to Provider Requirements.
(c) You must comply with any applicable Provider Requirements we notify.
(d) Where a Provider Requirement states that a Provider has a certain right or power:
(e) the Provider itself may exercise that right or power; or
(f) we may exercise the right or power on behalf of the Provider.
- Use of Service by others.
(a) The acts and omissions of your Staff and End Users with respect to a Service are deemed to be your acts and omissions.
(b) You must ensure that your Staff and End Users do not do (or omit to do) anything that would breach your Customer Contract if done (or not done) by you.
- Using a Service
(a) When using a Service, you must comply with:
(i) your Customer Contract (including any applicable Acceptable Use Policy or Anti-Spam Policy); and
(ii) any applicable Laws.
(b) You must not use a Service, and you must Ensure that your End Users do not use a Service:
(i) to send Restricted Content;
(ii) for publishing, reproducing or advertising any message, information, symbol or other communication which is offensive or abusive or of an indecent, obscene or menacing character or for the purpose of causing annoyance, inconvenience or needless anxiety to any person, or for any unlawful purpose;
(iii) to defame any person;
(iv) to breach the rights of any person;
(v) to infringe copyright;
(vi) to create, transmit or communicate communications which are defamatory, obscene, pornographic, discriminatory, offensive, in breach of confidence, illegal or which bring us or any of our Providers into disrepute;
(vii) to host or transmit content which contains viruses or other harmful code or data designed to interrupt, damage, destroy or limit the functionality of any software, hardware or computer or communications equipment;
(viii) to send, allow to be sent, or assist in the sending of Spam, to use or distribute email harvesting software, or otherwise breach the Unsolicited Electronic Messages Act ;
(ix) in a way that is misleading or deceptive, where that is contrary to Law;
(x) in a way that results, or is likely to result, in damage to property or injury to any person; or
(xi) in any way that damages or interferes with our Services to other customers, our Providers or any Facilities or exposes us to liability.
(c) If you send Messages which are regulated by Spam Laws (for example, marketing messages), it is your responsibility to make sure that you comply with the relevant spam laws in the Country that End Users will receive those messages. This may include, but is not limited to:
(i) obtaining consent from the End User to receive marketing Messages;
(ii) including your sender details within the Message;
(iii) including a clear, conspicuous and functional unsubscribe facility; and
(iv) for messages being sent to end users in New Zealand, ensure that those End Users can unsubscribe free of charge and via a Message (we have products and services available to assist you with this).
(d) The Customer is solely responsible for all acts or omissions that occur under account or password provided to it by us, including the content of any Messages transmitted through the Service. The Customer acknowledges and agrees that any Messages sent using the Customer’s Account are deemed to have been sent and/or authorised by the Customer.
- Maintenance and faults
(a) From time to time, the Network requires maintenance that may interfere with your Service. We will provide you with notice of any scheduled maintenance where reasonably possible.
(b) Reporting faults
(i) You may report faults in relation to a Service or the Network by contacting our help line during its operating hours.
(ii) Before reporting a fault, you must take all reasonable steps to ensure that the fault is not caused by equipment, which is not part of the Network.
(iii) You must not report a fault directly to one of our Providers unless we ask you to do so.
(iv) If you report a fault that turns out to be a ‘false alarm’, or not to relate to the Network, we may make a reasonable charge for our effort and expenses in responding to your report.
(c) Repairing faults
(i) We will use reasonable efforts to repair faults in Our Facilities within the time periods set out in the relevant SLA
(ii) We will use reasonable efforts to have our Providers repair faults in Provider Facilities within a reasonable period.
(iii) You are responsible for maintaining and repairing your own equipment
(d) If you cause a fault or damage to the Network, we may charge you the reasonable cost of repairing it.
- Your cooperation
(a) You must give us all reasonable cooperation that we require in order to provide a Service to You, and fixing any problems that arise, and resolving any disputes that may arise or complaints that you may have.
(b) We may charge you $100 for each complaint received by us from a Carrier regarding any unsolicited messages despatched by you if we have been charged that sum by a Carrier and are unable to resolve the complaint with the Carrier. (c) All Content relating to the use of a Short Code is subject to prior approval by the Carrier.
(c) You acknowledge that, where a Service is a telecommunications service within the meaning of the Telecommunications Act, we or a Provider may be or are required:
(i) to intercept or enable interception communications over the Service pursuant to the Telecommunications (Interception Capability and Security) Act 2013, and
(ii) monitor usage of the Service and communications over it.
(iii) Retain and store data for at least two years.
Confidentiality, Intellectual Property and Privacy
(a) Each party (Recipient) undertakes that, in respect of Confidential Information disclosed to the Recipient by the other party (Disclosing Party), it will not disclose Confidential Information except:
(i) for the purpose for which the Confidential Information was disclosed to the Recipient under the terms of the Customer Contract;
(ii) to those employees, officers and agents of the Recipient who need to know the information for the purposes of the Customer Contract, if that person undertakes to keep confidential the Confidential Information;
(iii) to professional advisers and consultants of the Recipient whose duties in relation to the Recipient require that the Confidential Information be disclosed to them;
(iv) with the prior written approval of the Disclosing Party; or
(v) as otherwise required by law to disclose such information.
(b) The parties acknowledge that monetary damages alone would not be adequate compensation for a breach of the obligations of confidentiality under this Customer Contract, and a Disclosing Party is entitled to seek an injunction from a Court of competent jurisdiction on a breach or threatened breach of this clause.
(c) Despite anything else contained in this Customer Contract and in particular in this confidentiality clause, we retain the unconditional and irrevocable right to disclose your identity and address and those of any Staff or End User in the event of any complaint received from any regulatory or Government body or Carrier, in connection with this Customer Contract.
(d) Nothing in this confidentiality clause prevents us from naming you as a customer and user of our Services in our marketing materials.
- Intellectual Property
(a) The parties agree that other than as provided in this clause, nothing in the Customer Contract transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights of a party.
(b) If a party provides any material to the other party that contains any Intellectual Property Rights which were developed by or on behalf of, or licensed to, the first party independently of the Customer Contract (pre-Existing Material), then the first party grants to the other party a non-transferable, non-exclusive, royalty-free licence to use, during the term of the Customer Contract, the Pre-Existing Material solely for the purpose of using or supplying the Services under the Customer Contract.
(b) You acknowledge and agree that where you authorise or require us to collect or otherwise deal with Personal Information in your name, or on your behalf, in connection with providing the Services, that we do so as your agent.
(c) You acknowledge and agree that except as may be required by this Customer Contract, we are not required to take steps to ensure that any Personal Information you collect has been collected in accordance with the Privacy Act. Further, you indemnify us for any Claim by a third party that it has suffered Loss as a result of your breach of the Privacy Act.
- Charges & payment: Prices
(a) You agree to pay our Charges in accordance with the terms of your Contract. Money amounts are stated in New Zealand currency unless otherwise specified.(b) You warrant that you will use the Messaging Services exclusively for the sending of Standard Rate Messages containing Unrestricted Content to End Users and, where the Service supports it, receiving Messages from End Users. We may make an extra Charge if you send any Messages that are not Standard Rate Messages, equal to the amount charged to us by the Carrier plus a reasonable margin.
(c) You must pay for every Message despatched using the Messaging Services irrespective of receipt by the intended recipient.
(d) On written request received within 30 days of the Message being despatched, we will provide evidence that the Message was delivered to the relevant Carrier.
(e) Any failure by a Carrier to deliver a Message to the intended recipient is beyond our control and you will not hold us liable in respect of any such failure.
(f) Where the Services are such that the Carrier will charge you or your customers, you agree to make payment to the Carrier directly or to ensure that your customers will make payment to the Carrier directly.
(g) Where the Carrier is to charge your customers directly you will, upon request, provide evidence to us that you have obtained appropriate authorisation from your customer.
(h) Where a Message Originator incurs Charges, the Carrier will invoice such Charges directly to the Message Originator and recover all such sums directly form the Message Originator in accordance with the Service Rules. Where your Application Form provides for revenue received by us from a Carrier to be shared with you:
(i) we will pay you the agreed revenue share if any only if we receive payment from the Carrier;
(ii) if we are required to repay any revenue share to the Carrier for any reason (or the Carrier sets off any such amount from any future revenue share due to us) we may, at our discretion, require you to refund any revenue share paid to you (or set off that amount from any future amounts due to you).
- Calculation of number of SMS
Information point: The SMS system allows a maximum message size of 160 characters. If a user sends a longer message, the system splits it to two or more separate SMS’s that may be reassembled on delivery so that they appear to be a single message (or, on some handsets, may be delivered as a series of separate SMS). When a longer message is split in this way, the components are no more than 153 characters long, because a number of characters are used to facilitate re-joining on delivery. As a result, a longer message will result in more than one SMS being transmitted, and charges apply accordingly, as described in this clause.
Charges for an SMS Service will be based on the number of SMS you send, calculated in accordance with the following rules:
(a) Content that contains no more than 160 characters counts as one SMS.
(b) A ‘character’ includes each individual letter, digit, punctuation and other symbol in the Content.
(c) Each press of a ‘spacebar’ generates a separate character.
(d) Some special symbols and non-English letters may comprise more than one character and you will be charged accordingly.
(e) Where an SMS is sent to multiple End Users, each one is counted separately.
- Late billing
(a) We may late bill.
(b) Some Charges in a Bill may relate to a previous Billing Period.
- How you can Pay
Direct credit to the account number stated on our monthly invoices is our preferred payment method and incurs no surcharges.
- Late payment
If a Bill is not paid on time:
(a) you are in breach of your Contract, and
(b) we may also charge:
(i) interest at the 90-Day Bank Accepted Bill Rate published by the Reserve Bank of New Zealand plus 2% from the Bill Date until it is paid in full; and
(ii) a reasonable late fee; and
(iii) any collection fees and expenses that we incur.
- Billing disputes
(a) Our records of what you owe us are deemed to be right unless you show them to be wrong.
(b) If you dispute a bill, you must pay it on time and without set off. We shall credit you if it is later determined that you are entitled to a credit.
(c) You may not raise a billing dispute more than 12 months after a bill is issued.
- Exclusion of Implied Terms and Warranties
You agree and acknowledge that:
(a) any representation, warranty, condition or undertaking that would be implied in your Contract by legislation, common law, equity, trade, custom or usage or otherwise is excluded from your Contract to the fullest extent permitted by law;
(b) we do not warrant or represent the performance, accuracy, reliability or continued availability of the Services or Facilities or that the Services or Facilities will operate free from faults, errors or interruptions.
- Your liability to us – General
(a) Subject to limitation on liability, you must indemnify us for any loss or damage we suffer arising from or in connection with:
(i) your breach of your Contract;
(ii) all Content sent or received on your Account;
(iii) any wilful or negligent act or omission by you, your employees, agents or contractors;
(iv) a Claim against us by your Staff, any End User or any third arising out of or in relation to your use of the Services and/or Equipment;
(v) your use of the Service in a way that breaches any Law or infringes the rights of any third party; and
(vi) acts or omissions of End Users.
(b) Your obligations under this clause survive termination of your Contract.
- Your liability to us –requests for information or evidence
(a) This clause applies where we reasonably incur expense as a result of or in connection with:
(i) a police request for information or evidence in relation to you or your use of a Service; or
(ii) a Court or other competent authority’s direction for provision of information or evidence in relation to you or your use of a Service; or
(iii) a demand from a legal practitioner for information or evidence in relation to you or your use of a Service.
(b) You must reimburse our expenses on request.
(c) Your obligations under this clause survive termination of your Contract.
- Our liability to you
(a) Subject to limitation on liability, we must indemnify you for any loss or damage you suffer arising from or in connection with:
(i) our breach of your Contract;
(ii) any wilful or negligent act or omission by us, our employees, agents or contractors;
(iii) a Claim against you by any End User in relation to a Service we supply to you arising out of our negligence in supplying the Services to you; and
(iv) our supply of the Services in a way the breaches any Law or infringes the rights of any third party.
(b) Our obligations under this clause survive termination of your Contract.
- Limitation on Liability
(a) To the maximum extent permitted by law, the parties agree:
(i) that the maximum cumulative liability of a party under or in connection with this Customer Contract (including pursuant to an indemnity) will be the total amount payable to us by you under this Customer Contract in the 12 months immediately preceding the incident or event giving rise to the liability; and
(ii) that neither party will be liable to the other party for any for any loss of profit or indirect loss or consequential loss suffered by the other party arising out of the Customer Contract, whether arising as a result of any act, omission or negligence of a party or otherwise.
(b) Nothing in this document limits or excludes the liability of a party for claims relating to:
(i) personal injury or death directly arising from that party’s negligent acts or omissions;
(ii) infringement of intellectual property rights; and
(iii) fees and Charges payable.
- Intellectual Property
Termination and Suspension
26. Termination by us
We may, by written notice to you, immediately terminate your Contract if:
(a) at any time (except during the period of the Minimum Term), on 30 days’ written notice to you;
(b) you are in material breach of your Contract (including but not limited to a failure to pay us on time, a breach of the Acceptable Use Policy or a breach of the Anti-Spam Policy) and you fail to remedy such breach within 14 days of being served notice to do so;
(c) you suffer an Insolvency Event;
(d) we become entitled to suspend the Service, and the suspension continues for more than a month;
(e) we reasonably suspect that you, Your Staff or your End User has infringed or attempted to infringe our Intellectual Property Rights;
(f) you cause to be reversed any Direct Debit or credit card payment to us (except with our prior written agreement);
(g) it is necessary to do so in order to comply with a warrant or other court order, or as otherwise required or authorised by law;
(h) if we reasonably suspect fraud or attempted fraud involving the Service;
(i) you are, or become, a carrier or a provider of Telecommunications Service under the Telecommunications Act; or
(j) in any other circumstances stated elsewhere in your Contract.
- Termination by you
You may terminate your Contract:
(a) at any time (except during the period of the Minimum Term) on 30 days’ written notice to us;
(b) by giving us written notice if we are in material breach of your Contract and we fail to remedy that breach within 14 days of being served notice to do so;
(c) by giving us written notice of immediate termination if we suffer an Insolvency Event;
(d) by giving us 14 days’ written notice if an Intervening Event occurs and you are unable to use the Service for more than 30 days;
(e) by giving us 14 days’ written notice if you reasonably suspect that we have infringed or attempted to infringe your Intellectual Property Rights; or
(f) in any other circumstances stated elsewhere in your Contract.
- Consequences of Termination
If your Contract ends:
(a) if your Contract ends during the period of the Minimum Term then you will be required to immediately pay us the Early Termination Fee (other than if you terminate the through other ways as described in this contract. You acknowledge and agree that any liability to pay us an Early Termination Fee does not prejudice any other right we may have to claim damages as a result of the termination.
(b) our obligations to you under your Contract are at an end;
(c) you must immediately cease use of any of our supplied under that Contract;
(d) we may bill you for any Services we have not yet invoiced and all other amounts we are entitled to under the Contract;
(e) all bills are payable immediately;
(f) you authorise us to recover any outstanding Charges from any overpayment you have made, or Direct Debit them from your credit card or bank account if you normally pay by Direct Debit;
(g) it does not affect the accrued rights or liabilities of either party; and
(h) it does not affect the provisions which expressly or by implication are intended to operate after termination including, without limitation clauses and the limitations of liability and rights of indemnity.
- Suspension of Service
We may suspend Service at any time, without liability and immediately by reasonable notice to you (except in the case of an emergency), if:
(a) there are problems with the Network, or we or our Providers need to suspend the Services to conduct operational and maintenance work on the Network;
(b) you fail to pay any amount owing to us in respect of the Service under your Customer Contract (which is not the subject of a bona fide dispute) by the due date, and you fail to pay that amount within the period specified in any subsequent notice we send you;
(c) you breach your Customer Contract, including terms relating to your use of the Service or any Acceptable Use Policy including but not limited to a breach of the Spam Laws;
(d) there is an emergency;
(e) there is a threat or risk to the security of the Service or integrity of the Network;
(f) the Service may cause death, personal injury or damage to property;
(g) we are required to do so to comply with the Telecommunications Act or any other applicable law or direction of any Regulator;
(h) an Intervening Event occurs; or
(i) we are otherwise entitled to do so under your Customer Contract.
- Charges during a period of suspension
If we suspend Service:
(a) because of your fault or breach of your Contract – you remain liable for all Charges payable under your Contract during the period of suspension;
(b) otherwise – you are entitled to a pro rata reduction in Charges in respect of the period of suspension.
- Termination by you
You acknowledge that:
(a) there has been no reliance by you on our skill or judgement or written or oral representations in deciding whether our Service is fit for a particular purpose or meets particular criteria;
(b) the internet is not an inherently secure system and you undertake responsibility for the protection of your information and data;
(c) internet may contain viruses (including other destructive programs), which may, if not eliminated, destroy parts or all of the data contained within your system, and that we have no control over these viruses; and
(d) we do not provide any filtering or checking of data to eliminate these viruses, and you agree to provide you own mechanism for checking its system for viruses, and to indemnify us against any damage caused by viruses obtained through the Service.
(a) We may assign or novate all or part of our rights and obligations under your Contract without your consent.
(b) You cannot assign or novate all or part of your rights and obligations under your Contract unless we agree in writing.
- Governing law
Your Contract is governed by and must be construed in accordance with the laws of New Zealand. You and we submit to the exclusive jurisdiction of the courts of New Zealand.
- Entire agreement
Your Contract is the entire agreement between you and us regarding its subject matter, and you acknowledge that:
(a) subject to this clause and without otherwise limiting any statutory rights you may have (including under the Consumer Guarantees Act 193) your Contract does not include any term, condition, warranty, representation or guarantee that is not expressly set out in it; and
(b) you have not relied on any representation that is not expressly set out in your Contract.
(a) Time is not of the essence in the performance of our obligations, including the provision of Service, under your Contract.
(b) We are not liable to you for any delay in the provision of any Service.
(c) You may not cancel or amend an order for a service on the grounds of any delay in providing it.
- No waiver
A failure, delay, relaxation or indulgence by us in exercising any power or right conferred under your Contract (such as a right that we have due to your breach of your Contract) does not operate as a waiver of the power or right.
- Commercial Electronic Messaging
(a) Subject to this clause, we may send you Commercial Electronic Messages regarding telecommunications goods and services, and ancillary goods and services, and you consent to us doing so.
(b) You consent under this clause (a):
(i) applies while your Contract is in force and for a year afterwards; and
(ii) is in addition to any other consent that you may give, or which may be inferred, for the purposes of section 16(2) of the Unsolicited Electronic Messages Act; but
(iii) terminates if you give us reasonable written notice that it is withdrawn.
(c) Any Commercial Electronic Message we send you does not have to comply with section 18(1) of the Unsolicited Electronic Messages Act.
(d) This clause survives the termination of your Contract.