About this document
The Customer Terms apply to all Services provided by us to.
Your Customer Contract
The Services
Exclusive or Preferred Supplier
If your Application Form states:
Within 14 days of receipt of a written request, you will provide to us a statutory declaration, executed by a duly authorised officer, attesting to your compliance with clause 5(a) or clause 5(b).
Periodic Entitlements
Within 14 days of receipt of a written request, you will provide to us a statutory declaration, executed by a duly authorised officer, attesting to your compliance with clause 5(a) or clause 5(b).
Prepaid Plans
For a Prepaid Plan:
Compliance with Policies
Operational Directions
Carrier or Telecommunications Service provider
You promise that you are not a Carrier or a provider of Telecommunications Services.
Provider Requirements – General
Use of Service by others
Payment for third party services
Using a Service may depend on you having goods or services supplied by third parties. For instance, in order to use an email-to-SMS Service, you must have an internet connection. You are solely responsible for the costs of all third party goods and services you acquire.
Using a Service
Telephone numbers – General
You must not knowingly and deliberately relocate, reassign or transfer the number for any Service except in accordance with our published procedures, or otherwise as the Law permits.
Telephone numbers – Messaging Services
Voluntary number porting
then as far as the law allows, you release us and our third party suppliers from all liability to you, and you indemnify us and them against all costs, expenses, liability, loss or damage incurred or suffered by us or them in conjunction with any claims, actions or proceedings against us or them (including third party claims or claims by you) arising out of the following:
Support
We will provide the type and amount of support set out in your SLA. If we are required to undertake on-site support for any reason whatsoever, we will charge you as set out in our SLA. The Customer will also be responsible for any travel expense or other expenses incurred by us in providing on-site support.
Maintenance and faults
Your cooperation
We may, at any time, make supply of Service conditional on you providing and/or maintaining security and/or third party guarantees to our reasonable satisfaction.
in accordance with this clause.
in accordance with this clause.
Bulletin.net (NZ) Limited acknowledges and agrees that it delegates payment responsibility in respect of operations referred to in this section to its affiliates as follows:
Information point: The SMS system allows a maximum message size of 160 characters for 7 bit languages and 70 characters for 16 bit languages. 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 for 7 bit languages and 134 for 16 bit languages, because seven 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:
If a Bill is not paid on time:
If a Service or a Plan includes a Service Level Agreement (SLA):
You agree and acknowledge that:
Limitation on Liability
Termination by us
We may, by written notice to you, immediately terminate your Contract if:
Termination by you
You may terminate your Contract:
Consequences of Termination
If your Contract ends:
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:
Charges during a period of suspension
If we suspend Service:
General power to vary your Contract
Subject to clause 48,
Customer Right to terminate on Receipt of Notice of Variation
If you do not accept the variation set out in a notice from us pursuant to clause 47 you must notify us in writing within 14 days. If you fail to do so, you will be deemed to have accepted the variation. If you notify us that you do not agree to the variation, then we must discuss the proposed variation in good faith. If no agreement on the variation is achieved within 10 Business Days either party may terminate this Customer Contract by providing 30 days’ written notice to the other party.
Acknowledgments
You acknowledge that:
Assignment
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:
Contracting out
Where you are in trade and to the extent that it is fair and reasonable for us to do so, you agree that:
Delays
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
| The expression: | Means: |
|---|---|
| Account | our customer’s entitlement to Messaging Services subject to these terms Contract and, where relevant, includes any Service features, associated usernames or passwords |
| Acceptable Use Policy | a policy so titled and issued under clause 8 |
| Anti-Spam Policy | a policy so titled and issued under clause 8 |
| Application or Application Form | your application to us to access Messaging Services, in a form we specify from time to time which may also contain features, entitlements, Charges and special conditions in connection with a Service. |
| Bill | an invoice from us which advises you of the total of each Charge that is due for payment |
| Billing Period | see clause 28(a) |
| Carrier | a ‘Network Operator’ as defined in the Telecommunications Act but also includes an entity that operates a telecommunications network outside New Zealand |
| Charges | fees and/or charges applicable under your Customer Contract |
| Claim | any claim, demand, action, proceeding or legal process (including by way of set off, cross-claim or counterclaim) |
| Commercial Electronic Message | same as in the Unsolicited Electronic Messages Act 2003 |
| Confidential Information | in relation to each party (for the purposes of this definition, the Discloser):
|
| Content | the content of a Message you send or receive |
| Contract | same as Customer Contract |
| Customer
Customer Contract |
means the customer named in the Application Form
see clause 0 |
| Customer Terms | the terms and conditions set out in Part A of this document. |
| Dedicated Number | a digital mobile service number provided by us to you under this Contract for exclusive use by you as part of your Messaging Service. |
| End User | a person who receives a Message you send using your Account, and a person who sends you a Message via your Account |
| Equipment | a handset, modem, router or other hardware |
| Facilities | systems, software, computers, equipment and network infrastructure of all kinds used to provide or in connection with the provision of a Service |
| GDPR | the General Data Protection Regulation (Regulation (EU) 2016/6790) |
| GST | Goods and Services Tax |
| GST Act | Goods and Services Tax Act 1985 |
| Insolvency Event | includes an event where a receiver or receiver and manager is appointed over any of your property or assets, an administrator, liquidator or provisional liquidator is appointed to you, you enter into any arrangement with your creditors, you become unable to pay your debts when they are due, you are wound up or become bankrupt, or any other analogous event or circumstance occurs under the laws of any jurisdiction |
| Intellectual Property Rights
Intervening Event |
Includes all right, title and interest wherever subsisting (now or in the future) throughout the world, and whether registered or not, in and to:
(a) copyright, neighbouring rights, moral rights and the protection of databases, circuit layouts, topographies and designs; (b) methods, inventions, patents, utility models, trade secrets, confidential information, technical and product information; and (c) trade-marks, business and company names and get ups, and includes the right to apply for registration, grant or other issuance of the rights described in paragraphs (a), (b) and (c) above and any other rights generally falling within this term. an event beyond our reasonable control which interferes with and prevents us from providing the Services to you. Such events include any act or omission of our Providers, any disruption to our or our Providers’ networks, infrastructure and equipment, failure of any electrical power supply, changes to any laws or regulations, industrial action and acts of God including but not limited to lightning strikes, earthquakes, floods or other natural disaster |
| Law | laws, Acts of Parliament, regulations, mandatory standards and industry codes and including the requirements or directions of any Regulator |
| Message | an SMS or OTT Message |
| Message Credits | a credit equal to your Monthly Access Fee that may be applied to your Messaging Fees for that month, provided that any unused balance in each month (a) is not carried over to any later month and (b) is not refundable |
| Messaging Fee | a Charge per SMS sent or received on your Account. |
| Message Originator | the unique telephone number that initiates a Message to a Short Code. |
| Messaging Service | a Telecommunications Service for sending and/or receiving and/or processing Messages |
| Minimum Term | the period specified in your Plan or Application Form, or if your Plan or Application Form does not so specify, means 12 months. |
| Model Clauses | the standard contractual clauses for transfers from data controllers in the EEA to data processors outside the EEA set out in the Commission Decision 2010/87/EU, dated 5th February 2010, entered into between you and us, as set out in Part D of this Customer Contract |
| Monthly Access Fee | the charge identified as such in a Plan or Application Form |
| Network | see clause 4(c) |
| OTT Message
Our Facilities |
is an instant message that uses the internet for transmission
Facilities we own and/or operate |
| Partner | a Customer whose Application Form states that they are appointed as a partner of the Supplier. |
| Personal Information
Privacy Act Provider |
as defined in the Privacy Act from time to time
means the Privacy Act 1993 as amended from time to time; a third party that, under a contract with us, provides (a) access to Facilities they manage or maintain or (b) content or (c) a service – that we resupply to you |
| Provider Facilities | Facilities that are managed or maintained by a Provider |
| Provider Requirements | see clause 11 |
| Periodic Entitlements | see clause 6 |
| Plan | a particular set of features, entitlements, term of contract, Charges and special conditions in connection with a Service. Many of our Services are available under different Plans, each with its own features, entitlements, contract period, Charges and special conditions. The terms of your Plan form part of your Customer Contract. |
| Post-Paid Plan | a Plan where you can use all or part of the Service before you pay for it |
| Prepaid Plan | a Plan where you must pay in full for Service before you use it |
| Price List | see clause 26(b) |
| Privacy Act | Privacy Act 1993 |
| Product | goods and / or services |
| Regulator | includes the Commerce Commission and any other relevant government or statutory body or authority and the Telecommunications Commissioner |
| Reseller | a Customer whose Application Form states that they are appointed as a reseller of the Supplier. |
| Restricted Content | Content that:
a) is likely to be, having regard to the contemporary attitudes of New Zealand society, offensive to reasonable adults; b) is likely to be, having regard to Law and the contemporary attitudes of New Zealand society, unsuitable for minors; c) promotes, incites or instructs in matters of crime; d) describes, incites or promotes unlawful sexual activity; e) promotes or incites violence or hatred against any person or group, or incites racial hatred; f) causes unnecessary alarm, distress or panic or is menacing in character; g) contains a computer worm or virus; h) breaches any Law; i) is in contravention of any privacy rules; j) infringes the confidentiality, copyright or other intellectual property rights or any other proprietary interest of any person; k) is false, misleading or deceptive, or likely to mislead or deceive; l) provides financial advice to any person; m) is out of date, having regard to information generally available, subsequently published, or released, or made available; or n) is for the purpose of providing any warning or notification about a serious risk to the safety of persons or property (for example, emergency services) |
| Related Company | as defined in the Companies Act 1993 |
| Services | a service (including any Equipment) which we provide to you, including but not limited to (a) a telecommunications service of any kind; or (b) ancillary goods or service |
| Reseller
Service Level Agreement |
a Customer whose Application Form states that they are appointed as a reseller of the Supplier’s Services
a written service quality assurance titled as such, as updated by us from time to time |
| Shared Number | a digital mobile service number that we associate with multiple Accounts |
| Service Rules | the service rules provided to you on or about the date of your Application or as published by us on our website from time to time and as updated from time to time by a Carrier |
| Short Code | a specific short code number which a Carrier has approved for exclusive use by the Customer |
| SLA | a Service Level Agreement |
| SMS | a text message carried by the short message service that was originally developed for use on the GSM mobile telephone network, whether it originates or terminates on a mobile phone or another kind of computer |
| SMS Service | a Messaging Service for SMS |
| Spam | an unsolicited commercial electronic message within the meaning of the Unsolicited Electronic Messages Act Act |
| Spam Laws | the Spam Act 2003 (Australia), the Unsolicited Electronic Messages Act 2007 (New Zealand) and the CAN-SPAM Act (USA) |
| Special Promotion | a special promotion we may offer from time to time, on terms we notify in connection with the offer |
| Standard Rate Messages | Messages that are billed by Carriers at standard rates, and in particular are not premium rate Messages, which are billed by Carriers at premium rates |
| Supplier
Telecommunications Act |
the entity described as such in the Application Form and/or your Plan and/or on the website on which these Customer Terms are published.
Telecommunications Act 2001 |
| Telecommunications Service | as defined in the Telecommunications Act |
| Unrestricted Content | Content that is not Restricted Content |
| Unsolicited Electronic Messages Act
Use-by Date |
the Unsolicited Electronic Messages Act 2007 (New Zealand)
see clause 7(b)
|
This Part applies when we supply you with Design Services.
Prior to providing any Design Services we will agree:
We may require you to pay a deposit for any Design Services that you have asked us to provide to you.
Where we undertake Design Services or any form of professional services, you will not unreasonably withhold signoff and approval of the completed project, where we are able to reasonably demonstrate that we have met the agreed specifications or requirements.
You warrant that all Content provided to us in relation to the provision of the Design Services is duly licensed or authorised and not in breach of any law, third party rights or trademarks. You further accept without limitation that any fees, royalties or other payments for use of Content are to be paid by you.
Upon completion of the Design Services you agree to pay the total cost of the Design Services within 14 days of receipt of an invoice for such services.
This Part C applies if the Services or the performance of our respective obligations under this Customer Contract involve the processing of any personal data (as defined in the GDPR) of, or sending Messages to, any individuals in the European Union.
STANDARD CONTRACTUAL CLAUSES (PROCESSORS) For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Name of the data exporting organisation: Customer as shown on the Application Form
Address: Customer’s address as shown on the Application Form
Tel: Customer’s telephone number as shown on the Application Form
E-mail: Customer’s email address as shown on the Application Form
Other information needed to identify the organisation: N/A
(the data exporter)
and
Name of the data importing organisation: Supplier as shown on the Application Form
Address: Supplier’s address as shown on the Application Form
Tel: Supplier’s telephone number as shown on the Application Form
E-mail: Supplier’s email address as shown on the Application Form
Other information needed to identify the organisation: N/A
(the data importer)
each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
(a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) ‘the data exporter’ means the controller who transfers the personal data;
(c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law [(and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established)] and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses; 12.2.2010 Official Journal of the European Union L 39/11 EN;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract; [
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about: (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation; (ii) any accidental or unauthorised access; and (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely the Country specified in the Application Form.
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
This Appendix forms part of the Clauses and must be completed and signed by the parties
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix
Data exporter: The data exporter is a customer of the data importer, who wishes to use the data importer’s telecommunications services to send electronic messages to individuals within the European Economic Area.
Data importer: The data importer, who is specified in the Application Form, is a telecommunications service provider that processes certain personal data provided to it by its customers in order to provide electronic messaging services to those customers.
Data subjects The personal data transferred concerns the following categories of data subjects:
Customers, employees and other end users of the data exporter. As the data exporter has full control over the personal data which is being transferred to the data importer, and the data importer will receive any personal data that the data exporter transfers, the data exporter has sole control over the specific data subjects.
Categories of data:
As the data exporter has full control over the personal data which is being transferred to the data importer, and the data importer will receive any personal data that the data exporter transfers, the data exporter necessarily has sole control over the specific categories of data. Categories may include name, telephone numbers and email addresses.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
As the data exporter has full control over the personal data which is being transferred to the data importer, and the data importer will receive any personal data that the data exporter transfers, the data exporter necessarily has sole control over any special specific categories of data which may be transferred to and processed by the data importer.
Processing operations: The personal data transferred will be subject to the following basic processing activities: Submission to telecommunication providers for delivery; storage; access for customer service, email and messaging abuse detection, prevention, and remediation; monitoring, maintaining and improving the data importers services.
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This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The data importer’s security measures include, but are not limited to: