General Terms & Conditions
1. Agreement terms
1.1 The following terms and conditions together with the particulars and terms agreed to by the Customer during the registration process (Particulars) will form the Agreement under which The Message Centre will provide Services (as defined below) to the Customer. In the event of any inconsistency between these terms and conditions and the terms of the Particulars, the terms of the Particulars will prevail to the extent of the inconsistency.
2. Operation of Agreement
2.1 This Agreement shall commence on the Commencement Date specified in the Particulars or when the Customer begins to use the Services, whichever is earlier.
2.2 Details of the Minimum Term and any Renewal Term (including automatic renewal periods) are as set out in the Particulars.
2.3 This Agreement shall continue for the Minimum Term specified in the Particulars, and renew in the manner as set out in the Particulars. Where a Renewal Term is not set out in the Particulars, then following expiry of the Minimum Term, to avoid interruption to the Services, this Agreement will automatically renew on a month-to-month basis, unless either party provides written notice to the other party at least 90 days’ prior to the expiry of the Minimum Term. Termination notice given prior to the expiry of the Minimum Term will take effect at the later of the expiry of the Minimum Term or the expiry of the 90 days’ notice. Either party may terminate month-to-month renewals of this Agreement without cause on giving thirty (30) days’ written notice, or as otherwise permitted under this Agreement.
3. Services
3.1 The scope of the services to be used by the Customer are as set out in the Particulars, and are referred to as the “Services” for the purposes of this Agreement.
3.2 In the event the Customer requires The Message Centre to undertake additional services outside of scope, the Customer must notify The Message Centre and The Message Centre may in its discretion either accept or reject such request. Additional fees may be payable.
4. Variations and Amendments
4.1 The Message Centre may modify or vary the terms of this Agreement and may discontinue, amend, revise or alter any of the Services at its sole discretion, including by posting updated versions of the Agreement on The Message Centre website, or other associated websites or materials. Such changes will only take effect and apply to the Customer upon the later of:
(a) 90 days following the date that the Customer is notified of the changes; and
(b) the expiry of the Minimum Term.
4.2 The Customer may, within 30 days of the changes becoming effective, or 30 days of receiving notice of the changes from The Message Centre (whichever is later) terminate this Agreement by 30 days’ notice in writing to The Message Centre if:
(a) the changes are substantial and have a material adverse impact on the Customer’s business; and
(b) the Customer has raised concerns they have about the changes with The Message Centre and engaged in good faith negotiations to agree upon a remedy to their concerns.
5. Payment and Fees
5.1 In consideration of The Message Centre providing the Services, the Customer agrees to pay the fees for each of the Services (Fees) in the manner and in the amount as set out in the Particulars.
5.2 If the Customer elects to pay using automatic direct debit:
(a) the Customer hereby authorizes The Message Centre to deduct any fixed fees from the nominated account in advance of provision of the Services and further deduct any funds payable on a usage basis whenever the Customer use the Services; and
(b) the Customer must ensure that sufficient funds are available in the nominated account to meet a drawing on its due date. Should a drawing be returned unpaid by the Customer’s financial institution or credit card issuer then a Declined Payment Fee (determined based on the cost to The Message Centre + 10%) will be applied to the Customer’s account with The Message Centre from which the drawing was to be applied.
5.3 Fees are payable in NZD. All Fees are exclusive of GST unless otherwise stated. The Customer agrees to pay all applicable GST upon invoice.
5.4 To the extent permitted by law, all fees paid to The Message Centre for the Services are non- refundable. For the avoidance of doubt, if The Message Centre terminates this Agreement because the Customer breaches this Agreement or any applicable laws, or if the Customer terminates this Agreement without cause, no refund will be issued even if the Customer has unused and prepaid Fees under this Agreement.
5.5 The Fees will be subject to an increase on 1 July each year of the greater of:
(a) 3%; and
(b) the Consumer Price Index.
6. Authorised Use
6.1 The Customer represents, covenants, and warrants that they will use the Services only in accordance with this Agreement, all applicable laws, and The Message Centre’s policies and guidelines (including the Anti-Spam policy, Privacy Policy and any other policy or guideline related to spamming, privacy, obscenity, or defamation).
6.2 The Customer hereby agrees to indemnify and hold The Message Centre harmless against any damages, losses, liabilities, settlements, and expenses (including without limitation legal costs on a full indemnity basis) in connection with any claim or action that arises from a breach by the Customer (or its staff, agents, customers or suppliers) of this Agreement, the Anti-Spam policy, Privacy Policy or any other policy or guideline binding on the Customer by reason of this Agreement or otherwise arising from or relating to the Customer’s (or its staff, agents, customers or suppliers) use of the Services. The Customer acknowledges that all personal information that the Customer provides to The Message Centre has been collected with the relevant individual’s consent such that The Message Centre may store the personal information that the Customer provides to The Message Centre on servers located at the premises of and/or operated by third parties and the Customer warrants that it has obtained the consent of the relevant individuals to the storage and transmission of their personal information by The Message Centre in this manner.
7. Intellectual Property Rights
7.1 This is an Agreement for the Services, and the Customer is not granted a licence to any Software under this Agreement.
7.2 The Customer agrees that all Intellectual Property Rights that arise, or will arise in connection with the Services, shall be and remain owned by The Message Centre.
8. The Customer agrees to take all actions as may be reasonably required by The Message Centre to perfect or enforce The Message Centre’s Intellectual Property Rights, which shall include executing and delivering any document required in order to perfect or enforce such title (including a deed of assignment of Intellectual Property).Prohibited Conduct
8.1 The Customer will not, directly or indirectly, copy, replicate or reproduce any aspect of the Services or Software. The Customer agrees not to reverse engineer, decompile, disassemble, or otherwise attempt to discover any Software used as part of the Services, remove any proprietary notices or labels from the Services or any Software, reproduce or copy the Software or the Services or any part thereof, modify, translate, or create derivative works based on the Services or any Software, or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software.
8.2 Landing Points (DDI’s) may be supplied by The Message Centre to the Customer to enable diversion of their business number(s) to The Message Centre’s service. The Landing Point (DDI’s) is not transferable. Under no circumstance should The Message Centre Landing Point (DDI’s) be used as a public facing number. The Message Centre will not approve any requests made for porting out of these numbers. Any costs incurred for rejecting a porting request (at the discretion of The Message Centre) will be charged to the Customer.
9. Authorisations
9.1 In using the varied features of the Services, the Customer may provide personal information (such as name, contact information, or other registration information) to The Message Centre. The Message Centre may use this personal information and any technical information about the Customer‘s use of the Services to tailor its Service to the Customer, facilitate the Customer’s movement through the Services, or to communicate with the Customer.
10. Reselling and Subcontracting the Services
10.1 Reselling and sub-contracting of the Services to third parties is permitted subject to the terms in this clause, with the express written agreement of The Message Centre.
10.2 Access to, and use of, the Services by a third party granted access by the Customer by resale or sub-contracting pursuant to clause 10.1(Your Customer):
(a) does not in any way diminish the Customer’s obligations to ensure compliance with the terms of this Agreement; and
(b) does not in any way diminish The Message Centre’s right to enforce the terms of this Agreement, including suspension or termination of access to the Services, whether or not it may have an adverse impact on Your Customer or the ability of Your Customer to use the Services.
11. Confidential Information
11.1 The parties undertake that they and their respective personnel will not, without the prior written consent of the other party:
(a) disclose the Confidential Information of the other party to any person; or
(b) use the Confidential Information of the other party for their own or a third party’s benefit.
11.2 Each party must take all reasonable steps to ensure that the Confidential Information of the other party is only disclosed to such of its personnel as require that information in order to enable the performance of this Agreement and further provided that such personnel are aware of, and comply with clause 11.1, are such party is liable for the acts and/or omissions of such personnel.
11.3 In the event that either party is requested or becomes legally compelled to disclose any of the other party’s Confidential Information, that party will (subject to any regulatory restrictions) provide the other party with prompt notice so that the other party may seek such protective order or other appropriate remedy as it thinks appropriate.
12. Restraint
12.1 During the Restraint Period, the Customer agrees not to, without the prior written consent of The Message Centre, either directly or indirectly (including through a Related Company):
(a) canvass, solicit, approach or accept any approach from, or deal in any way with a client or potential client, customer, supplier, referrer, employee, agent, officer, contractor or business partner of The Message Centre; or
(b) entice or solicit, or assist another person to entice or solicit, an employee, contractor, officer, agent or supplier of The Message Centre (being a person with whom they have had dealings during the 24-month period prior to the event giving rise to this clause), to cease to provide services to The Message Centre;
(c) interfere with any relationship between the other party and a client, potential client, customer, referrer, business partner, employee, contractor, officer, agent or supplier of The Message Centre; or
(d) engage in any combination of the above.
12.2 In this clause “Restraint Period” means during the Term and, after this Agreement terminates, for a further period of:
(a) one year; or, if that duration is held to be invalid or unenforceable for such period by a court of competent jurisdiction, then
(b) six months; or, if that duration is held to be invalid or unenforceable for such period by a court of competent jurisdiction, then
(c) three months.
12.3 The Customer acknowledges and agrees that:
(a) this clause is fair and reasonably necessary to protect the proprietary interests and goodwill of The Message Centre;
(b) in the event of breach or threatened breach of this clause, The Message Centre may obtain an injunction against the Customer, without the need to show any loss or damage.
12.4 If the Customer breaches clause 12.1 with respect to an employee, agent officer, or contractor of The Message Centre (Restricted Party) (including if a Customer’s Related Company engages in any act in breach of clause 12.1), then the Customer agrees to pay The Message Centre an amount equal to three months of the annual remuneration/fees (including superannuation and benefits such as commissions) paid by The Message Centre to the relevant Restricted Party) during the previous 12 months prior to the breach (or if the Restricted Party had not been engaged for 12 months, then the amount that would have been paid had they been engaged for 12 months determined by annualising the amount that they were paid) (Recruitment Fee). The parties acknowledge and agree that this is a genuine pre-estimate of The Message Centre’s loss and damage in the event of breach and is reasonably necessary to protect The Message Centre’s interests.
12.5 The Customer will be invoiced for the Recruitment Fee and the Recruitment Fee is payable by it within 14 days of the date of the invoice.
12.6 This clause survives termination of this Agreement.
13. Termination and Suspension
13.1 If the Agreement is for a specified Minimum Term, the Customer may only terminate this Agreement without cause during the Minimum Term by paying a break fee (Break Fee). The break fee will be equal to the balance of the Fees due for the remainder of the Minimum Term (calculated pro rata for any part month). The Customer will also be liable to pay a Break Fee where The Message Centre terminates this Agreement during the Minimum Term under clause 13.2. Where the Customer terminates during the Minimum Term under clause 13.2. then no Break Fee is payable. Where a Break Fee is applicable, The Message Centre may invoice the Customer for the Break Fee and such invoice shall be due and payable immediately on demand.
13.2 Either party may terminate this Agreement, immediately, at any time upon giving the other party written notice if:
(a) the other party breaches a term of this Agreement and fails to rectify the breach upon being given 14 days’ written notice to do so or the breach is not able to be rectified; and/or
(b) the other party becomes insolvent, goes into receivership, liquidation or statutory management or is otherwise involved in any similar event.
13.3 The Message Centre may delete any of the Customer’s archived data within 30 days after the date of termination of this Agreement. Any statutory retention requirements with respect to the Customer’s business records or information remain the Customer’s responsibility.
13.4 On termination of this Agreement, the Customer must immediately pay to The Message Centre all Fees for the Services completed and any other amounts still owing by the Customer to The Message Centre as at the date of termination of this Agreement.
14. Warranties, Disclaimers and Remedies
14.1 To the maximum extent permitted by law, The Message Centre does not warrant that the Services will be uninterrupted, accurate or error free, nor warrants the results that may be obtained from use of the Services. The Services are provided on an “as is” basis and to the extent permitted by law The Message Centre disclaims all warranties, express or implied, in relation to the Services including (but not limited to) implied warranties of merchantability, fitness for a particular purpose and non-infringement.
14.2 Without limiting clause 14.1, where the Customer is “in trade” within the meaning of the Fair Trading Act 1986 (FTA) or the Consumer Guarantees Act 1993 (CGA) (as the case may be), the parties agree to contract out of the CGA and sections 9, 12A, 13 and 14 of the FTA (Acts).
14.3 Where a Customer is “in trade”, the Customer acknowledges that it is fair and reasonable that the Customer be bound by clause 14.2. Where The Message Centre is supplying Services to the Customer other than a Customer that is “in trade” clause 14.2 does not apply.
15. Limitation of Liability
15.1 To the maximum extent permitted by law and subject to the other terms of this Agreement, under no circumstances shall each party be liable to the other party for any loss or damage (including but not limited to direct, indirect, exemplary, special, incidental, cover, reliance or consequential damages, loss of profits or revenue, business interruption, loss of data, or failure to realise anticipated savings or benefits or business opportunities), arising directly or indirectly from the provision or use of the Services.
15.2 Each party agrees that the other party’s liability to them at law will be reduced by the extent, if any, to which that party contributed to the loss.
15.3 Subject to the other terms of this Agreement, each party’s maximum aggregate liability to the other party for any loss arising out of or in connection with this Agreement, including any breach, however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual fees paid by the Customer to The Message Centre under this Agreement.
15.4 If The Message Centre is liable to the Customer in relation to a failure to comply with a guarantee that applies under the Acts (as defined in clause 14) that cannot be excluded, The Message Centre’s total liability (including in negligence) to the Customer for that failure is limited to, at the option of The Message Centre, the resupply of the Services or the payment of the cost of resupply.
15.5 The Customer agrees to indemnify The Message Centre for any losses that The Message Centre may suffer (including without limitation legal costs on a full indemnity basis) as a result of any claims made against it arising from any act or omission by the Customer or its staff, agents, customers or suppliers, or any breach of this Agreement by the Customer.
16. Privacy
16.1 The Customer acknowledges and shall comply with the Privacy Policy of The Message Centre as amended from time to time. The Privacy Policy is located on The Message Centre’s website.
17. Guarantee
17.1 In this clause, the “Guarantor” means the person or persons who are set out in the Particulars and agreed to personally guaranteed payment of the Guaranteed Money. “Guaranteed Money” means any monies that at any time for any reason or circumstance in connection with this Agreement are payable by the Customer.
17.2 The Guarantor (and where there is more than one Guarantor, the Guarantors, jointly and severally), as a principal obligor and not merely as surety, unconditionally and irrevocably guarantees payment to The Message Centre of the Guaranteed Money (“Guarantee”).
17.3 If any Guaranteed Money is not paid within the agreed terms, the Guarantors agree to pay the Guaranteed Money to The Message Centre.
17.4 The Guarantee is a continuing obligation and extends to all the Guaranteed Money. The Guarantor/s must pay The Message Centre for the reasonable costs of The Message Centre enforcing or attempting to enforce or taking any other action in connection with this Guarantee.
17.5 The liability of the Guarantor under the Guarantee will not be reduced, discharged or otherwise adversely affected by:
(a) any act, omission, matter or thing which would have discharged or affected the liability of the Guarantor had it been a principal obligor instead of a guarantor or indemnifier; or
(b) anything done or omitted by any person which, but for this provision, might operate or exonerate or discharge the Guarantor or otherwise reduce or extinguish its liability under the Guarantee.
17.6 The Message Centre’s rights and remedies under this Guarantee are in addition to any other rights and remedies provided by law independently of this Guarantee.
18. Miscellaneous
18.1 Unenforceable or invalid clauses – If any clause, sub-clause or part thereof in the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
18.2 Entire agreement – The Message Centre and the Customer agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement.
18.3 Waivers – The Message Centre and the Customer agree that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
18.4 No other relationships – No agency, partnership, joint venture, or employment is created as a result of the Agreement, and the Customer does not have any authority of any kind to bind The Message Centre in any respect whatsoever.
18.5 Cost recovery – In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
18.6 Governing laws – The Agreement shall be governed by the laws of New Zealand without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the courts located in New Zealand.
18.7 Force Majeure – Neither party will be liable to the other party by reason of the failure in the performance of its obligations under this Agreement by reason of strikes, riots, fire, explosions, acts of God, war, governmental action, or any other cause which is beyond its reasonable control. For the purposes of this clause, any unavailability of funds does not constitute a cause beyond a party’s reasonable control.
18.8 Rights not expressly granted – All rights not expressly granted are reserved.
18.9 Survival – All clauses of this Agreement which by their nature should survive termination will survive termination, including, without limitation, Intellectual Property Rights (clause 7), restraint (clause 12), warranties (clause 14), disclaimers and limitations of liability (clause 15), Miscellaneous (clause 18) and Dispute Resolution (clause 19).
19. Dispute Resolution
19.1 If a dispute arises between the parties about the contents or interpretation of this Agreement, then the parties will make reasonable endeavours to resolve the dispute by negotiation.
19.2 If such efforts are unsuccessful after 10 working days from the dispute being formally raised, either party may submit the dispute to mediation in accordance with the Mediation Protocol of the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) Inc., with a mediator appointed by the President of AMINZ or the President’s nominee, if the parties are unable to agree on such appointment.
19.3 Nothing in this Agreement will prevent a party seeking urgent equitable remedies before an appropriate court.
20. Definitions
20 For the purposes of this Agreement:
(a) “Agreement” means this agreement and the Particulars.
(b) “Confidential Information” means information about or provided by a party to the other party whether oral, written or embodied in any other physical or electronic form, that is by its nature confidential, is designated by the owning party as confidential, or the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge.
(c) “Customer” or “The Customer” means the person (including a corporation, partnership, trust or any other form of legal entity whatsoever) specified in, and the details of which are provided to, The Message Centre as part of the Particulars.
(d) “GST” means goods and services tax chargeable under the Goods and Services Tax Act 1985.
(e) “Intellectual Property Rights” includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, Confidential Information, know-how, and all other rights resulting from intellectual activity. “Intellectual Property” has a consistent meaning, and includes any enhancement, modification or derivative work of the Intellectual Property.
(f) “Related Company” has the meaning in the Companies Act 1993.
(g) “Software” means source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services.
(h) “Term” the term of this Agreement, including the Minimum Term and any Renewal Term and/or month-to-month extension.
(i) “The Message Centre” means TMC BPO Services (New Zealand) Limited (NZBN 9429051011253).