Standard Terms and Conditions between
Textng Comms and Messaging Solutions Limited with offices 9 Bode Thomas, Surulere, Lagos. RC - 1786750 (HEREAFTER "Textng Communications" or "TextngComms") AND THE USER, IDENTIFIED AS ANY PERSON USING ANY SYSTEM OR SERVICE OF Textng Communications. Collective referred to as (the "PARTIES").
1.1 - "Textng Communications" shall refer to Textng Comms and Messaging Solutions Limited, RC - 1786750.
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.
6. Improper user
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.
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.
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.
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