Terms and Conditions

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1. Introduction
1.1 TXT2GET Limited, a company incorporated in New Zealand under number 1849833, ("TXT2GET") provides certain marketing, software, and infrastructure services relating to shortcode and keyword SMS messaging ("the Services").
1.2 These terms and conditions are the terms on which TXT2GET offers you access to the Services and the Website. By registering keywords or shortcodes with TXT2GET 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 These terms and conditions may be amended in whole or in part by TXT2GET 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 shortcode 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 TXT2GET shortcode to initiate a Campaign; "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; "User" or "you" means a person or entity using the Website or that registers with TXT2GET 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.txt2get.com.au.
3. Becoming a User
3.1 You may only register as a User if you are resident in Australia 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 TXT2GET 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 TXT2GET to ensure it is kept current at all times. TXT2GET 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 TXT2GET 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, TXT2GET 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 TXT2GET, 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 TXT2GET will send you emails relating to your Account, transactions and other activities on the Website, and for promoting and marketing other TXT2GET products and services to you. TXT2GET may also send regular electronic newsletters to Users. Newsletters will contain clear and obvious instructions for how Users can unsubscribe from the mailing list.
4. Rights and Obligations of TXT2GET
4.1 TXT2GET 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 TXT2GET 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 TXT2GET 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, TXT2GET 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, TXT2GET assumes no responsibility for the corruption of any data or information held by TXT2GET.
4.4 TXT2GET shall only be required to provide technical support by way of email correspondence.
4.5 There is no obligation on TXT2GET to pre-screen keywords, shortcodes or User Content. TXT2GET reserves the right to immediately terminate your Account or remove any keywords, shortcodes 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.
4.6 TXT2GET 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.
4.7 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, TXT2GET 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, shortcode, or User Content or other material or information using the Services or the TXT2Get 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, shortcode or User Content does not breach this clause 5.2. You agree that TXT2GET 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 TXT2GET consider that you are in breach of this clause 5.2 at any time.
5.3 Under no circumstances will TXT2GET be liable in any way for any keyword, shortcode or User Content, including, but not limited to, the subject matter of any keywords, shortcodes or User Content, any errors or omissions in any keyword, shortcode or User Content, or for any loss or damage of any kind incurred as a result of the use of any keyword, shortcode or User Content posted, emailed, transmitted or otherwise made available via the Website or the Services.
5.4 You hereby authorise TXT2GET 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 TXT2GET.
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 TXT2GET.
5.7 Should the Services suffer irretrievable data loss, TXT2GET may require you to restore your data from copies from your own backup, and you agree that TXT2GET 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 TXT2GET on the Website;
(iii) Comply with all applicable laws and regulations;
(iv) Not take any action which imposes or may impose (in TXT2GET's discretion) an unreasonable or disproportionately large load on the Services, the TXT2GET system, or TXT2GET's infrastructure;
(v) Not use the Services or the TXT2GET 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-licence 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 25c 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 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 TXT2GET to transmit information you upload or input into the TXT2GET system, so that TXT2GET does not violate any rights you might have in that information (including any intellectual property rights), you agree to grant TXT2GET a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (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 TXT2GET 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 TXT2GET. TXT2GET claims no ownership interest in (and accepts no liability for) the User Content provided by Users.
6.2 TXT2GET reserves the right to delete any keyword(s) reserved by a User if TXT2GET, 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 TXT2GET will have no liability to the User for deletion of such keyword(s).
7 Fees, Account and Variable Direct Debit Authorisation
7.1 TXT2GET charges fees for the use of the Services. TXT2GET\'s current fees are listed on the pricing page of the Website and TXT2GET reserves the right to change the fees charged for the Services at any time by 20 days notice by TXT2GET 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 TXT2GET.
7.2 With regard to Data Plan Options, invoices are rendered in advance on a monthly basis. Accordingly, you authorize TXT2GET, until further notice in writing to debit your credit card account provided to TXT2GET from time to time with the amounts invoiced which TXT2GET, with authorisation code TXT2GET, may initiate by direct debit. You acknowledge and accept that your credit card issuer accepts this authority only upon the following conditions:
(i) TXT2GET 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) TXT2GET 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 TXT2GET;
(b) Stop payment of any Direct Debit to be initiated under this authority by TXT2GET 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 7.2 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 actual notice of such event is received by TXT2GET;
(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 TXT2GET;
7.3 If the User\'s bandwidth usage exceeds the average bandwidth usage (as determined solely by TXT2GET) of other Users, TXT2GET reserves the right to on-charge such additional costs to the User via the Direct Debit authority referred to in clause 7.3.
7.4 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.
7.5 All fees are inclusive of GST and in Australian dollars unless otherwise stated.
7.6 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 TXT2GET 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 TXT2GET 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. TXT2GET'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 TXT2GET must be made by notice in writing to TXT2GET within 12 months of the claim or cause of action arising. TXT2GET 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 TXT2GET is found liable to you or any third party the liability of TXT2GET shall be limited to the greater of (a) the total fees paid by you to TXT2GET 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 TXT2GET 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 TXT2GET 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 TXT2GET 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 TXT2GET and its counsel in the conduct of such defence.
10. Anti-Spam Policy
10.1 TXT2GET strictly prohibits spamming activities of any kind. Spam is defined as including, but not limited to, the following:
(i) Messages addressed to a recipient with whom the User does not have an existing business or personal relationship or is not sent at the request or consent of the recipient; or
(ii) Messages that are sent that are misleading to potential referrals, misrepresenting User's affiliation with a person or entity, unrelated to Users, or posted in excessive volume.
10.2 For the sake of clarity, any act of spamming shall be a breach of these terms and conditions.
11. Push Texting
11.1 This clause 11 applies to the use by Users of the functionality to 'push' text messages to the mobile phones of the User's customers (or other databases) for whom the User has a mobile phone number.
11.2 All prices specified for 'push' texting are for text messages sent to Australian mobile numbers only. 'Push' texting to overseas numbers is not currently available.
11.3 The recipient's consent (either explicit or implicit, and in accordance with all applicable laws) 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 push a message to a recipient who has not provided such consent.
11.4 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 the User must hold an express or implied consent from the recipient as to acceptance of such charges.
11.5 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.
11.6 '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.
11.7 If a message is sent to a recipient whose details are stored in a marketing database, the message content must:
(i) Commence with the phrase "[FreeMsg]";
(ii) 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;
(iii) 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');
(iv) Not include any adult related language or content;
(v) Include clear details of the unsubscribe or STOP functionality to enable the recipient to stop any further marketing messages.
11.8 All marketing and 'push' texting must be presented and conducted in a responsible manner, and should take into consideration the nature of the recipients.
11.9 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.
12. TXT2WIN Campaigns
12.1 Certain states in Australia have their own regulations in regards to TXT2WIN. The User must ensure that they comply with all relevant laws and regulations regarding a TXT2WIN campaign and that they hold all necessary permits, licences and consents in connection with such campaigns. TXT2GET does not assume any liability for any failure on the part of a User to obtain any relevant consents, permits or licences for TXT2WIN campaigns.
12.2 New South Wales: Without limitation to clause 12.1 or anything else contained in these terms and conditions the User must ensure that a TXT2WIN campaign in New South Wales complies with the following:
(i) TXT2GET 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;
(i) All trade promotions need a permit which is available at www.license.nsw.gov.au;
(ii) A TXT2WIN campaign must not be linked to the provision of further information;
(iii) The rules must clearly state that the means of entry cost to the Texter will be 25c;
(iv) An entrant or other person must not be required to message on more than one occasion to provide information or particulars, or to answer questions or for any other reason in order to obtain a right to a valid entry into the proposed trade promotion lottery;
(v) All other requirements and published guidelines of the NSW Government Licensing Service ([include hyperlink here]
12.3 Victoria: Without limitation to clause 12.1 or anything else contained in these terms and conditions the User must ensure that a TXT2WIN campaign in Victoria complies with the following:
(i) All trade promotions need a permit which is available at
(ii) The rules must clearly state that the means of entry cost to the Texter will be 25 cents;
(iii) All other requirements and published guidelines of the Victorian Commission for Gambling Regulation ([include hyperlink here]
12.4 South Australia: Without limitation to clause 12.1 or anything else contained in these terms and conditions the User must ensure that a TXT2WIN campaign in South Australia complies with the following:
(i) All trade promotions need a permit which is available at http://www.olgc.sa.gov.au/default.asp? page=general.Contact_Details.lottery_contact_us.htm&menu=lottery;
(ii) The rules must clearly state that the means of entry cost to the Texter is 25 cents
(iii) All other requirements and published guidelines of the South Australian Office of the Liquor and Gambling Commissioner ([include hyperlink here]
12.5 Western Australia: Without limitation to clause 12.1 or anything else contained in these terms and conditions the User must ensure that a TXT2WIN campaign in Western Australia complies with the following:
(i) Trade promotions do not require a permit if certain conditions are met (see published guidelines);
(ii) Terms and conditions of the trade promotion must be lodged with the Gaming and Wagering Commission prior to the commencement of the promotion;
(iii) The rules must clearly state that the means of entry cost to the Texter is 25 cents; and
(iv) All other requirements and published guidelines of the Western Australia Gaming and Wagering Commission ([include hyperlink here].
12.6 Queensland: Without limitation to clause 12.1 or anything else contained in these terms and conditions the User must ensure that a TXT2WIN campaign in Queensland complies with the requirements and published guidelines of the Queensland Office of Liquor and Gaming Regulation ([include hyperlink here].
12.7 ACT: Without limitation to clause 12.1 or anything else contained in these terms and conditions the User must ensure that a TXT2WIN campaign in ACT complies with the requirements and published guidelines of the ACT Gambling and Racing Commission ([include hyperlink here].
12.8 Northern Territory: Without limitation to clause 12.1 or anything else contained in these terms and conditions the User must ensure that a TXT2WIN campaign in ACT complies with the requirements and published guidelines of the Northern Terriroty Government ([include hyperlink here].
13. Breach and Cessation of Account
13.1 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.
13.2 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.
13.3 TXT2GET, 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 TXT2GET 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. TXT2GET reserves the right to refuse access to the Services to anyone for any reason at any time. TXT2GET accepts no liability for any Campaign history, content, or other data lost as a result of the suspension or termination of an Account.
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 by TXT2GET without any liability whatsoever to you.
14. Privacy
14.1 TXT2GET collects personal information about you through your use of the Services and the Website, including:
(i) Your registration details and other details relating to your Account; and
(ii) Information relating to your use of the Services.
14.2 You agree that TXT2GET may use this personal information to assist it to provide the Services to you, for internal research purposes, to verify your identity, for promoting and marketing other TXT2GET products and Services to you, and for any other use that you authorise.
14.3 TXT2GET shall not sell or allow third parties to access your personal information without your consent. TXT2GET 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 TXT2GET, Users, or others.
14.4 If a User is an individual the User shall have the right to request TXT2GET for a copy of personal information held in relation to that User and the right to request TXT2GET to correct any such personal information.

Terms and Conditions (Agency)

16. Introduction
16.1 TXT2GET Limited, a company incorporated in New Zealand under number 1849833, ("TXT2GET") provides certain marketing, software, and infrastructure services relating to shortcode and keyword SMS messaging ("the Services").
16.2 These terms and conditions are the terms on which you are to act as an agent for TXT2GET in respect of the sale of the Services in Australia. Subject to TXT2GET\'s approval of your application to be an agent, by ticking the accept box you accept these terms and conditions.
17. Definitions
17.1 In these terms and conditions unless the context otherwise requires:
"You" means you, being the person applying to act as a TXT2GET referral agent with respect to the Services; "Campaign" means the keyword and shortcode combination which when texted initiates the automated response that a User sets up utilising the Services; "Commission" means, in relation to the sale of the Services, the amount payable to you by TXT2GET pursuant to clause 5; "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; "Intellectual Property" means all or any of the following:
(i) Trade Marks of which TXT2GET is the proprietor or licensee of, that are applied to the Services and applications for registration of any such marks;
(ii) Trade names, being the names under which TXT2GET provides the Services;
(iii) Know-how, being pricing information, market surveys, market analyses, customer and supplier lists and similar data, competitor information and all derivations, and other information or experience applied in the provision and sale of the Services;
(iv) Copyright held by TXT2GET in any written marketing, promotional or advertising material, plans, designs or other work relating to the provision and sale of the Services;
(v) Websites and Domain Names of which TXT2GET is the proprietor of or licensee of, that relate to the Services; and
(vi) Designs, whether or not registered or protected by copyright, devised or acquired by TXT2GET and applied in the provision and sale of the Services;
"Texter" means a person that sends a text or SMS message to a TXT2GET shortcode to initiate a Campaign; and "User" means a person or entity that registers with TXT2GET to use the Services.
18. Becoming an Agent
18.1 You may only apply to be an agent if you are resident in Australia and can form a legally binding contract that is enforceable against you. You must be 18 years of age of older. By registering as an agent, you warrant that you can form a legally binding contract.
18.2 You warrant that you have provided complete, accurate and current personal information when registering as an agent. You must maintain and update your personal information held by TXT2GET to ensure it is kept current at all times. TXT2GET may phone or mail you to verify these details. You must not register as an agent under multiple identities or personas (whether false or not).
18.3 TXT2GET reserves the right to decline your application to become an agent without entering into further discussions with you.
18.4 Subject to TXT2GET accepting (in its sole discretion) your application to become a referral agent, TXT2GET appoints you as an agent for the purpose of referring TXT2GET and the Services to potential users within Australia. Your authority as agent is strictly limited to acting as a referrer of TXT2GET and the Services in accordance with these terms and conditions. You must ensure that you are not mistaken for being the provider of the Services. In addition, you have no authority to act on behalf of or bind TXT2GET in any way and must not hold yourself out to any User, potential User or any other person as having any such authority. You are an "agent" only by name and are not an agent of TXT2GET at law.
18.5 Subject to the remaining provisions of these terms and conditions TXT2GET may, in its absolute discretion:
(i) Decline to provide the Services to Users referred by or through the Agent;
(ii) Appoint other agents within Australia and elsewhere;
(iii) Market and facilitate sales of the Services in its own right;
(iv) Vary the fees charged by TXT2GET for the Services; and
(v) Otherwise take any action in relation to or in connection with the Services as it thinks fit in its absolute discretion without reference to the Agent.
19. Terms and Conditions
19.1 These terms and conditions may be amended in whole or in part by TXT2GET from time to time. Amendments will be effective 30 days after the amended terms and conditions are posted on the TXT2GET website. You are responsible for ensuring that you are familiar with the latest terms and conditions posted on the TXT2GET website. Any change to these terms and conditions that reduces the commission payable to Agents will only apply to commissions payable in respect of Users who register with TXT2GET after the date on which the change to these terms and conditions becomes effective.
20. Commission
20.1 TXT2GET shall pay you a commission at the rate of fifteen percent (15%) on GST exclusive fees received by TXT2GET from Users that input your Agent ID code when they register to use the TXT2GET Services. For the avoidance of doubt:
(i) Commissions will only be paid on keyword registrations, Data Plan charges and the TXT2GET revenue share of any Premium Rate text charges;
(ii) No Commission shall be paid until such time as TXT2GET has received payment in full for the relevant Services; and
(iii) The Commission shall only be paid to you in respect of fees received by TXT2GET from Users that have submitted your Agent ID code at the time they register as a User. Furthermore, a User that initially submitted your agent code in the process of registration may subsequently remove you from their registration screen, and consequently you will no longer be paid any Commission on fees received by TXT2GET from that User.
20.2 The Commission shall be paid by TXT2GET to your nominated bank account on a monthly basis in arrears on the 20th of the month following the month in which the Commission was received by TXT2GET. Any missed or mistaken payments resulting from an Agent\'s failure to provide correct and up-to-date bank account details to TXT2GET shall be the responsibility of the Agent and TXT2GET shall have no liability for or in connection with such missed or mistaken payments.
20.3 Subject to the remainder of these terms and conditions (including, without limitation clause 5.1(iii)) and subject to the Agent being in compliance with his/her obligations hereunder, commissions will be paid to an Agent for 5 years (or a lesser period under clause 5.4 below) following the date that the relevant User who registered with the Agent\'s ID code first registered to use the Services.
20.4 TXT2GET reserves the right to limit the duration that commissions are paid to Agents and may unilaterally reduce the time period during which commissions are paid provided that in no circumstances shall such time period be reduced to less than 3 years from the date that a User who registered using the Agent\'s ID code first registered to use the Services.
20.5 Agents have sole responsibility for ensuring that all Users that they get to sign up for the Services include the Agent\'s Agent ID code in the account registration screen. If the Agent\'s Agent ID code is not included in the account registration screen when the User first registers to use the Services the relevant Agent will not be paid any commission on fees paid to TXT2GET by that User.
21. Your obligations
21.1 Diligence: You shall, at all times, work diligently to protect and promote the interests of TXT2GET and shall act with the utmost standards in professionalism and integrity when representing TXT2GET and recommending TXT2GET to potential Users.
21.2 No Agency: You acknowledge and agree that you are not an "agent" of TXT2GET in the legal sense and that you have no authority whatsoever to bind TXT2GET or to agree to or incur any obligation or commitment on behalf of TXT2GET or pledge the credit of TXT2GET. You must make it clear to every potential User and other person that you enter into discussions with regarding TXT2GET and the Services that you are not a legal "agent" of TXT2GET and you must not give any person you deal with any cause to assume the existence of any such agency.
21.3 Scope of activity and authority: You must not:
(i) Extend credit to Users without the prior written consent of TXT2GET. In the event of TXT2GET authorising credit to be extended to any particular User, such credit shall only be given on such terms and conditions as TXT2GET deems fit in its absolute discretion;
(ii) Negotiate or conclude any contract on TXT2GET\'s behalf;
(iii) Issue proposals or quotations, or accept requests, on TXT2GET\'s behalf;
(iv) Make any representations or give any warranties concerning the Services to any person. You must only market the Services using materials provided to you by TXT2GET or by using the information contained on the TXT2GET website.
21.4 Security: You are responsible for keeping your login information, including your email address, identification code and password, secret and secure. Without limiting the foregoing, you agree:
(i) Not to permit any other person to use your user name or account;
(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; and
(iii) 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.
21.5 Business Cards: You take full responsibility for the business card content and contact information you input into the TXT2GET system when ordering business cards. Agents acknowledge and agree that when they place an order for business cards with TXT2GET the order will be made with, and printed and dispatched by, PrintStop, 44 Khyber Pass Road, Auckland, New Zealand (+64 9 303 0385) and that orders can take up to 7 days to fulfil. Should you not receive the business cards you order you should take the matter up directly with PrintStop. TXT2GET has no obligation to you with respect to any order for business cards and will not be obliged to refund any monies paid by you if your order is not fulfilled.
21.6 Expenses: You are responsible for all expenses incurred by you in promoting the Services to potential Users.
21.7 Indemnity: You agree to release, indemnify and keep indemnified TXT2GET 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 breach of these terms and conditions; or
(ii) Your negligent or wrongful acts, defaults and omissions.
21.8 You hereby authorise TXT2GET to identify you publicly on the TXT2GET website as an Agent. You also agree that your name and/or logo may be displayed on the TXT2GET website or other material as part of a list of Agents.
21.9 General Obligations: You shall:
(i) Comply with these terms and conditions (as amended);
(ii) Comply with all policies and procedures posted by TXT2GET on the TXT2GET website;
(iii) Comply with the terms and conditions applicable to Users as if you yourself were a User, and keep yourself fully informed and up-to-date regarding the latest version of such terms and conditions;
(iv) Comply with all applicable laws and regulations;
(v) Not distribute viruses or any other technologies that may harm TXT2GET, other Agents, Users, Texters or any other person;
(vi) Not interfere or attempt to interfere with the proper working of the TXT2GET website or the Services;
(vii) Not harvest or otherwise collect information about Users or Texters without their consent.
22. Intellectual Property
22.1 You shall not acquire by virtue of becoming an agent for TXT2GET or otherwise, any right, title or interest in any of the Intellectual Property, which shall be and remain the sole property of TXT2GET or the relevant associated or related company of TXT2GET.
22.2 You shall during the term of these terms and conditions use, publish and display the Intellectual Property as may reasonably be necessary to give effect to these terms and conditions and for the advertising, marketing and promotion of the Services. To clarify, you may use any image or combination of images supplied by TXT2GET for the purpose of advertising and promoting the Services, provided that TXT2GET has not notified you in writing of the withdrawal of any such image. You must not use any other materials and images in connection with the promotion of the Services other than the materials and images provided by, or approved by, TXT2GET.
23. Disclaimer of Warranty and Limitations of Liability
23.1 TXT2GET expressly disclaims any responsibility or liability to you in connection with the Services. Users agree that, to the maximum extent permitted by law, any and all liability and responsibility of TXT2GET to you or any other person under or in connection with these terms and conditions, or in connection with the Services, or the TXT2GET website is excluded regardless of whether such liability arises in contract, tort (including negligence), equity, breach of statutory duty or otherwise. TXT2GET\'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.
23.2 Any claim made by you against TXT2GET must be made by notice in writing to TXT2GET within 12 months of the claim or cause of action arising. TXT2GET will not be liable for any claim that is not made within such time.
23.3 Without limitation to clauses 8.1 and 8.2, if TXT2GET is found liable to you or any third party the liability of TXT2GET shall be limited to the greater of (a) 50% of the total fees paid by TXT2GET to you in the 12 months prior to the action giving rise to the liability, and (ii) $1,000.
23.4 Nothing in this clause 8 or elsewhere in these terms and conditions is intended to limit or exclude any liability on the part of TXT2GET where and to the extent that any applicable law prohibits such exclusion or limitation.
24. Termination
24.1 Your appointment as a TXT2GET agent may be terminated by TXT2GET at any time if:
(i) You commit any act of bankruptcy, or make or negotiate for any composition or arrangement with or assignment for the benefit of your creditors;
(ii) You breach any of these terms and conditions or the terms and conditions applicable to Users;
(iii) You commit any wilful or negligent misconduct; or
(iv) You bring TXT2GET into disrepute.
24.2 From the date on which your appointment as a TXT2GET agent is terminated:
(i) All of your rights under these terms and conditions will cease;
(ii) You will no longer be entitled to receive any commission under clause 5;
(iii) You must immediately return to TXT2GET all TXT2GET business cards you hold together with all other marketing and other materials provided to you by TXT2GET.
24.3 Your obligations under clause 6.7 (Indemnity) continue without limit in time following termination of your appointment as a TXT2GET agent.
25. Privacy
25.1 TXT2GET collects personal information about you through your registration as a TXT2GET agent. You agree that TXT2GET may use this personal information to assist it to comply with its obligations to you under these terms and conditions, for internal research purposes, to verify your identity, for promoting and marketing other TXT2GET products and Services to you, and for any other use that you authorise.
25.2 TXT2GET shall not sell or allow third parties to access your personal information without your consent. TXT2GET 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 TXT2GET, Users, or others.
25.3 If you are an individual you shall have the right to request TXT2GET for a copy of personal information held in relation to you and the right to request TXT2GET to correct any such personal information.
26. General
26.1 These terms and conditions are governed by the laws of New South Wales. You submit to the non- exclusive jurisdiction of the Courts of New South Wales.
26.2 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.
26.3 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.
26.4 Nothing in these terms and conditions is intended to create any legal agency, partnership, joint venture or employer-employee relationship between you and TXT2GET.
26.5 Except as stated otherwise, any notices must be given by registered ordinary post (or if posted to or from a place outside Australia, by registered airmail) to TXT 2 Get Limited, [PO Box 8429, Symonds Street 1150, Auckland, New Zealand] (in the case of TXT2GET) or to the email address you provide to TXT2GET during the registration process (in your case). Alternatively, TXT2GET may give you notice by certified airmail, postage prepaid and return receipt requested, to the address provided to TXT2GET during the registration process, or as updated by you as relevant. Any notice shall be deemed given (a) if sent by email, 24 hours after the email is sent, unless the sending party is notified that the email address is invalid, (b) if sent by pre-paid post, three Business Days after the date of posting, and on the seventh Business Day if sent to or posted from outside Australia, and (c) if sent by facsimile transmission, on the Business Day the transmission is sent (as long as the sender has a confirmation report recording that the facsimile was successfully transmitted). For the purposes of this section, "Business Day" means a day on which banks are open for general business in Sydney, Australia, other than a Saturday, Sunday or public holiday.
26.6 The agreement between TXT2GET and you may be assigned by TXT2GET to a third party without your consent in the event of a sale or other transfer of some or all of the assets of TXT2GET. 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 TXT2GET.
26.7 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.
26.8 TXT2GET\'s failure to act with respect to an anticipated or actual breach by you or others does not constitute a waiver by TXT2GET of such breach or of its right to act with respect to subsequent or similar breaches.
26.9 Clause 6.7 (Indemnity), Section 8 (Disclaimer of Warranty and Limitations of Liability), 10 (Privacy), and 11 (General), 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 TXT2GET and you and the termination of your authority to act as a TXT2GET referral agent.