Standard Terms and Conditions between
Textng Communications - An Arm of Marakwe and Sons Company Limited CAC NUMBER: RC932588 (HEREAFTER "Textng Communications")
THE USER, IDENTIFIED AS ANY PERSON USING ANY SYSTEM OR SERVICE OF Textng Communications. COLLECTIVELY REFERRED TO AS "THE PARTIES"
PLEASE READ THIS AGREEMENT CAREFULLY. THIS SMS USER AGREEMENT ("SMS AGREEMENT") DESCRIBES THE TERMS AND CONDITIONS UNDER WHICH Textng Communications OFFERS YOU (THE "USER" OR "YOU" OR "YOUR") AN ACCOUNT (THE "ACCOUNT") FOR USE OF Textng Communications SERVICE (THE "SMS SERVICE") BY ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW AS WELL AS THE TERMS AND CONDITIONS PUBLISHED ON THE Textng Communications SITE. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SERVICE. Textng Communications MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON POSTING OF THE MODIFIED AGREEMENT AT THE SITE. YOU AGREE TO REVIEW THE AGREEMENT PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF THE SERVICE SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT.
1 - Definitions
1.1 - "Textng Communications" shall refer to Marakwe and Sons Company Limited, a private company registered in Nigeria under registration number RC932588.
1.2 - "User", “You”, “Your”, "His/Her" shall refer to the party using the Products and/or Services and/or Software as provided by Textng Communications.
1.3 - "Service" shall mean the activity and obligation of Textng Communications to provide the services and/or deliverables.
1.4 - "Effective Date" means the date on which the Service commence.
1.5 – “Account” shall mean the User’s platform for interacting with Textng Communications Services
1.6 - Unless inconsistent with the context, or otherwise indicated, in this agreement reference to a "person" shall include a juristic or artificial person, including without limitation, a firm, company voluntary association, or partnership.
1.7 - In this agreement, unless inconsistent with the context, or otherwise indicated, the singular shall include the plural, and the plural shall include the singular.
1.8 - In this agreement, unless inconsistent with the context, or otherwise indicated, reference to the male form shall include the female form as well, and vice-versa.
This Agreement and all other agreements and annexures referred to in this Agreement constitute(s) the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings or agreements of the parties. This Agreement may not be contradicted by evidence of any prior or contemporaneous statements or agreements. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation, understanding, agreement, commitment or warranty outside those expressly set forth in this Agreement.
No latitude, extension of time or other indulgence which may be given or allowed by any party to the other parties in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of any party arising from this agreement, and no single or partial exercise of any right by any party under this agreement, shall in any circumstances be construed to be an implied consent or election by such party or operate as a waiver or a negation of or otherwise affect any of the party's rights in terms of or arising from this agreement or stop or preclude any such party from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof.
4.1 - The effective date is the date when the User first downloaded or started using the Textng Communications Service.
4.2 - This agreement, notwithstanding the date of acceptance or signature, will be deemed to have commenced on the effective date.
5.1 - The duration of this agreement shall continue indefinitely, unless terminated by either party.
5.2 - Either party may terminate this agreement by giving the other party 30 (thirty) days prior written notice.
6.1 - The User will not nor will the User authorize or permit any other person or party to use the Service:
6.1.1 - to send or knowingly receive or conduct any communication which is in violation of any law, regulation, regulatory authority or which is defamatory, offensive, abusive, indecent, obscene or menacing, or in breach of confidential, privacy, trade secrets, or in breach of any third party intellectual property rights, or in breach of any other rights;
6.1.2 - to cause any annoyance or inconvenience.
6.1.3 – to defraud or attempt to defraud
6.2 - The User unconditionally accepts and that it will abide by:
6.2.1 – Textng Communications’ acceptable use policy, available on request or may be viewed at http://Textng Communications.com, the terms with which the User declares itself familiar which can be amended from time to time;
6.2.2 – Textng Communications’ Licence terms and conditions which can be amended from time to time available on request or may be viewed at http://Textng Communications.com
6.3 - Without derogating from any other right of recourse available to Textng Communications in this Agreement, any breach of this clause by the User shall be deemed to be a material breach of this agreement and shall entitle Textng Communications to suspend and/or terminate the Service Agreement and, for this purpose, it shall be irrelevant whether the User is aware of the content of any material so transmitted. Textng Communications may suspend the Service without notice with immediate effect if, in Textng Communications reasonable opinion, the User is in breach of this Agreement and Textng Communications may refuse to restore the Service until the User has given Textng Communications an acceptable assurance that there will be no further contravention.
6.4 - Textng Communications shall be entitled to suspend and/ or terminate the Services to the User in the event of, the Textng Communications or third party network being or is potentially jeopardised, harmed and/ or impeded, by the User's use of the Services.
6.5 - The User acknowledges and agrees that Textng Communications may monitor the communication performance of the system associated with the use of the services.
6.6 - The User shall indemnify and keep Textng Communications indemnified from any claim howsoever arising lawful or otherwise, brought by any third party resulting from the User's use of the Textng Communications system and/or communication networks connected to the system. The User will pay all costs, damages, awards, fees (legal fees on an attorney and own User scale whether incurred prior to or during the institution of legal proceedings or if judgment has been granted, in connection with the satisfaction of such judgment) and judgments finally awarded against Textng Communications arising from such claims, and will provide Textng Communications with notice of such claims, full authority to defend, compromise or settle such claims and all reasonable assistance necessary to defend such claims, at the User's sole expense. Textng Communications agrees that any actions taken by Textng Communications in respect of such claims will be taken in reasonable consultation with the User.
6.7 - The User may use the system to link into other networks and the User agrees to conform to the acceptable use policies of such networks. If communications by the User do not conform to these standards, or if the User makes profligate use of the system and/or the Service to the detriment of Textng Communications or other Textng Communications customers, Textng Communications reserves the right to restrict the passage of the User communications until the User negotiates with Textng Communications an acceptable undertaking as to its use.
7.1 - Save as expressly set out in this agreement, Textng Communications does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the System and all warranties which are implied or residual at common law are hereby expressly excluded.
7.2 - Without limitation to the generality of clause 7.1 Textng Communications does not warrant or guarantee that the information transmitted by or available to the User by the way of the system or any Textng Communications Equipment:
7.2.1 - will be preserved or sustained in its entirety;
7.2.2 - will be suitable for any purposes,
7.2.3 - will be free of inaccuracies, defects, bugs or viruses of any kind; and Textng Communications assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this clause 7.1, and 7.2 above.
8-Exclusion of Liability
8.1 - Except for any deliberate act or gross negligence on the part of Textng Communications, its associates, servants or agents, and except as otherwise expressly provided herein to the contrary, Textng Communications shall not be liable to the User or any third party for any loss or damage of whatsoever nature and/or arising (including consequential or incidental loss or damage which shall include but shall not be limited to loss to property or of profit, business, goodwill, revenue or anticipated savings) or for any costs, claims or demands of any nature whether asserted against Textng Communications or against the User by any party arising directly or indirectly out of the System or Services, their use, access, withdrawal or suspension or out of any information or materials provided or not provided, as the case may be, by or from their use and the User hereby indemnifies and holds Textng Communications harmless in respect thereof, such indemnity specifically includes, but is not limited to:
8.1.1 - the incorrectness and/or loss of any service delivered or undelivered by the Textng Communications System or the delay in delivery thereof;
8.1.2 - the non-availability of the System or access to the System for any reason whatsoever;
8.2 - Textng Communications, its affiliated companies, suppliers, or any of their employees assumes no liability or responsibility for the accuracy, timeliness or completeness of any services offered by the User. The User accordingly indemnifies Textng Communications and holds it harmless against all and any loss, liability, actions, suites, proceedings, costs, demands and damages of all and every kind, (including direct, indirect, special or consequential damages), and whether in an action based on contract, negligence or any other action, arising out of or in connection with the services.
8.3 - Subject to clause 8.1 and clause 8.2 above, the entire liability of Textng Communications, and the User's exclusive remedy for damages from any cause related to or arising out of this agreement, regardless of the form of action, whether in contract or in delicti, will not exceed the average aggregate of the Services fees and Charges paid by the User to Textng Communications under this agreement over any continuous period of 3 (three) months reckoned from the date the claim is made against Textng Communications.
8.4 - Due to the need to conduct maintenance, repair and/or improvement work from time to time on the technical infrastructure by means of which the Services are provided, the provision of the Services may be suspended by Textng Communications from time to time, with the giving of at least, 24 (twenty four) hours' notice, and all liability on the part of Textng Communications for any loss or damage whether directly or consequential thereby incurred or for any costs, claims, or demands of any nature arising there from, is excluded and the provision of clause §8.1 above shall apply mutatis mutandis to such exclusion.
9.1 - Textng Communications have the right to suspend and / or terminate Services to the User, should any notification be received of unlawful activity by the User, in respect of the services, pursuant to the provisions of the law of the applicable country and standard organization(s).
9.2 - The User hereby indemnifies and holds Textng Communications harmless against any claims, damages and/ or costs of whatsoever nature arising from the performance by Textng Communications of its responsibilities in terms of provisions of the law of the applicable country and standard organization(s).
10.1 - By purchasing a bypass code from Textng communications, the user agrees to:
10.1.2 - Accept all liablities for actions taken from your bypass code(s).
10.1.3 - Protect his/her bypass code(s) and only give trusted persons or people access to his/her bypass code(s).
10.1.4 - Ensure that his/her bypass code(s) is/are not used for any unlawful or fraudulent activity in respect of the services, pursuant to the provisions of the law of the applicable country and standard organization(s).
11.1 - Textng Communications shall be entitled, but not obligated to suspend and/ or terminate this agreement without giving notice to the User in of the following circumstances:
11.1.1 - In the event of the User failing to make payment in terms of this Agreement within 7 (seven) days after it becoming due and payable;
11.1.2 - In the event of the User failing to comply with any of the terms and conditions of this agreement, all of which are deemed to be material and it shall be irrelevant whether the User is aware of the content of any material so transmitted;
11.1.3 - Either party shall be entitled, but not obligated to terminate this Agreement upon 14 (fourteen) days prior written notice in of the following circumstances:
184.108.40.206 - In the event of a party allowing a judgment against it to remain unsettled for more than 7 (seven) days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end;
220.127.116.11 - In the event of a party being placed in liquidation or under judicial management whether provisionally of finally; and/ or
18.104.22.168 - With respects to 10.1.3.1 and 10.1.3.2, not appeal the judgment that was granted against it on an opposed basis.
11.2 - In the event of their being a legal dispute between the parties, of whatever nature, the User will be obliged to continue with the punctual payment of all and/ or any amounts due in terms of this Agreement.
11.3 - If Textng Communications elects to cancel this Agreement as provided for in clause 10.1 hereof Textng Communications shall be entitled to:
11.3.1 - Claim all outstanding monies as on the date of repudiation and/ or cancellation of this Agreement;
11.3.2 - Treat all outstanding amounts as immediately due and payable which would have become due and payable over the balance of the period which has not expired in terms of the Agreement;
11.3.3 - To claim interest on the amounts as provided for in 10.3.1 and 10.3.2;
11.3.4 - Immediately terminate all and/ or any of the Services provided to the User in terms of this Agreement. Upon acceptance of this Agreement by the User, the User consents to such termination under the circumstances and the termination not amounting to an act of spoliation;
11.3.5 - Claim any and/ or all damages that Textng Communications might incur as a direct and/ or indirect result of the User's repudiation and/ or breach of this Agreement;
11.3.6 - Claim the costs of any legal proceedings instituted against the User in any court of law on a scale as between attorney and own User irrespective as to whether summons has been issued or not; and/ or
11.3.7 - To retain all amounts already paid by the User in terms of this Agreement;
11.3.8 - To retain and/ or reclaim possession of any goods of whatever nature provided by Textng Communications, directly or indirectly, or by any third party instructed by Textng Communications to the User, irrespective as to whether the said goods are prescribed in this Agreement, or not.
11.3.9 - In the event of suspension, termination, cancellation and/ or expiration of this Agreement as provided for in this Agreement and/ or as provided for in common law, the provisions of this Agreement which are intended to continue and survive, shall continue to and survive accordingly.
12.1 - Neither of the parties shall be held liable for failure to perform any of its obligations under any circumstance where the failure or default is caused by or arises as a result of force majeure including, but not limited to, fire, flood, lightning, civil unrest and acts of governmental, regulatory or military authorities;
12.2 - The defaulting party affected by force majeure shall as soon as reasonably possible notify the other party in writing of the occurrence of the circumstances and the estimated extent and duration of its inability to perform its obligations under the circumstances.
12.3 - In the event of a force majeure circumstance, both parties shall use all reasonable endeavours to minimise the effects to the affected party.
13-Advertisements And Links To Other Sites
13.1 - Textng Communications does not endorse the content on any third-party Web sites.
13.2 - Textng Communications is not responsible for the content of linked third-party sites, indexes or directories, sites framed within this Site, or third-party advertisements, and does not make any representations regarding their content, accuracy or non-infringement.