Terms and Conditions relating to
Cheeky Monkey Mobile Services

These terms and conditions relate to your use of products and services sold to you by Cheeky Monkey Hosting.

1. Definitions

"Charge" means any amount chargeable by Vodafone or Telecom for delivering SMS messages.

"Confidential Information" means all data and other information of whatever nature, provided by one party to the other party under or in terms of this agreement or otherwise, but excludes:

1. information known to the other party prior to the date it was provided to it by the first party and not obtained directly or indirectly from the first party; and

2. information obtained bona fide from another person who is in lawful possession of the same and did not acquire the same directly or indirectly from the first party under an obligation of confidence;

"Connection" means a connection to the Telecom or Vodafone Mobile Network either whereby the SMS content Provider can pass Content into the Network for delivery to Users or, if applicable, whereby Users can send Pull Messages;

"Content" means data or other information and includes all text, pictures, graphics, audio, video, images, other data, functionality, computer software and code provided by the Content Provider for the use of the End User.

"Content Provider" means the customer ("Customer") purchasing mobile products and/or services ("Products" and "Services" respectively) from Cheeky Monkey Hosting under any agreement.

"End User" means a person who is being provided with services by Vodafone or Telecom using their Networks, who pays Vodafone or Telecom a charge for such service (whether the charge is paid in advance or arrears) and who has agreed to Vodafone's or Telecom's Standard Terms and Conditions;

"Message Service" means the information delivery service whereby the SMS Content Provider provides Content to Cheeky Monkey Hosting for delivery to Users;

"Message" means, either the Content that is sent by Cheeky Monkey Hosting to be delivered to Users or a Pull Message;

"Short Message" means an alpha numeric message comprising up to 160 characters;

"SMS" means the Short Message service provided by Vodafone or Telecom to Customers utilising the Network;

"Access Code" means a Short Code or a combination of a Code and a Short Code used by the End User to trigger delivery of a Pull Service or participate in a particular Service or application provided under this Agreement.

"Advertising" means publication, in any form, which is intended to promote End User's use of Content Services and includes any reference to an Access Code, Short Code or any other method of accessing content.

"Content Provider Charged Content" means Content, the transport of which, is charged to the Content Provider.

"Customer Charge" means the charge payable by an End User for successfully delivered End User Charged Content.

"End User Charged Content" means Content, the transport of which, is charged to the End User.

"GST" means goods and services tax payable under the Goods and Services Tax Act 1985, as amended, varied or substituted.

"Intellectual Property Rights" means all intellectual property, including all rights arising from the law of copyright, trade marks, designs and know-how owned by the relevant party.

"Pull Service" means a Content Service under which a End User, on a case by case basis, may send an Access Code to the Content Provider to trigger the delivery of an item of Content from that Content Provider to that End User.

"Push Service" means a Content Service that is not a Pull Service and under which the Content Provider provides the End User certain Content on a regular or predetermined basis in accordance with an arrangement entered between the End User and the Content Provider.

"Short Code" means a three, four or five digit code allocated by Telecom Mobile or Vodafone to Cheeky Monkey Hosting for use by the Content Provider for the purpose of this agreement and to which a End User may send an SMS message in order to trigger a Pull Service or participate in a particular Service or application under this Agreement.

2. Content Provider Rights of Termination

1. The Content Provider may terminate a Content Service by providing 30 days written notice to Cheeky Monkey Hosting.

2. The Content Provider may terminate this agreement by providing written notice to Cheeky Monkey Hosting that you believe we are in breach of these Terms and Conditions and / or the Agreement, and have not remedied such breach within 10 days of being notified of such breach by you;

3. The Content Provider may terminate this agreement immediately following written notification of a modification to these terms and conditions over which agreement cannot be reached.

CONSEQUENCES OF SUSPENSION OR TERMINATION

1. the Content Provider will immediately cease Advertising;

2. the parties will perform all of their continuing obligations from the period the Content Service Schedule was in effect;

3. the Content Provider will cease to provide the Content Service to End Users;

4. the Content Provider will inform End Users of the applicable Content Service of the termination or suspension;

5. any Code or Short Code associated with a suspended Content Service will remain allocated to the Content Provider during the period of suspension.

6. we will cease providing the Product or Service to you, and all amounts which you owe to us will immediately become due and payable.

3. Cheeky Monkey Hosting Indemnity and Limitation of Liability

1. Cheeky Monkey Hosting assumes no liability for any loss, injury, claim, liability or damage of any kind including loss of business, lost profits, lost data, or failure of security resulting in any way from your use of the services, including without limitation any errors or omissions, any content, any delay or failure of performance, or the unavailability or interruption of service.

2. Accordingly, Cheeky Monkey Hosting shall not be liable for direct, indirect, special, incidental, consequential, punitive or exemplary damages of any kind whatsoever, whether or not foreseeable (including, without limitation, lawyers' fees) in any way due to, resulting from, or arising in connection with the services or the failure of a party to perform its obligations, regardless of any party's negligence. Termination of the Agreement shall be your sole and exclusive remedy for any and all damages or injury.

3. Cheeky Monkey Hosting will not be liable for the inadvertent disclosure of or corruption or erasure of data transmitted or received or stored on our system.

INDEMNITY FOR UNSOLICITED CONTENT

4. Without limiting any other claim Cheeky Monkey Hosting may have against the Content Provider and / or any other indemnity provided by the Content Provider, the Content Provider will pay Telecom Mobile $100 per customer complaint as liquidated damages for unsolicited SMS except that liability under this clause will be capped at $30,000 in any 3 month period for sending of messages without gross negligence or intent.

4. Confidentiality and Use of Your Information

1. You acknowledge that Cheeky Monkey Hosting will make some of the information that you provide during the registration process publicly available as required by the relevant mobile network provider.

2. Cheeky Monkey Hosting will not otherwise disclose your information to any third party unless it is required to maintain your service. You may request a copy of your information in Cheeky Monkey Hosting''s possession to review, modify or update such information.

5. Your Use of the Products or Services

1. You agree that you will at all times abide by the requirements of Cheeky Monkey Hosting's Acceptable Use Policy as published at http://www.cheekymonkeyhosting.co.nz and amended from time to time.

2. You acknowledge that we may be obliged to provide assistance to law enforcement agencies in respect of your acquisition or use of the Products and Services and that you will not make any claim against us in relation to that assistance.

6. Connection

1. Cheeky Monkey Hosting agrees to supply the SMS Content Provider a Connection to enable the SMS Content Provider either to supply Content in to the Vodafone and/or Telecom networks, which will in turn supply that Content to End Users; or to allow End Users to send Pull Messages to retrieve from the SMS Content Provider.

2. The SMS Content Provider agrees that it will use the Connection only for the purpose of delivering Content into the Network or receiving Pull Messages from the Network; and

DELIVERY OF MESSAGES

3. The SMS Service Provider acknowledges and agrees that Vodafone and Telecom do not offer a continuous or a fault free service to its customers and there may be instances when Messages are not delivered. Cheeky Monkey Hosting, Vodafone and Telecom accept no liability in these circumstances.

4. where a Message is not delivered by Vodafone or Telecom (for example, because of a Prepay Customer having an insufficient credit balance to receive the Message or a Post pay Customer's service having been suspended for credit reasons), Cheeky Monkey Hosting will endeavour to advise the SMS Content Provider that the Message was not delivered, but Cheeky Monkey Hosting will not be liable if it fails to do so.

VOLUMES

5. The SMS Service Provider will estimate messages volumes on a monthly basis and will not deliver into the Network more than the volume of Messages estimated on a monthly basis.

AUDIT OF CONTENT

6. Cheeky Monkey Hosting may at any time, and from time to time intercept, read, store and otherwise deal with the Content for the purpose of ascertaining compliance of the SMS Service Provider with this agreement.

7. We may delete that data stored using the Products or Services, in our absolute discretion, if we consider that data to be inappropriate, illegal, offensive or otherwise in breach of any law, standard, regulation or code of practice.

ARCHIVING CONTENT

8. The Content Provider will archive all Content for at least 6 months and at the end of that period the Content Provider will, in a reasonable manner, make that Content available to Cheeky Monkey Hosting if required.

SUSPENSION OF SERVICE

9. We may at any time, without notice, suspend your use or access to part or all of the Products or Services:

1. for such time as is necessary for any maintenance determined by us to be necessary from time to time, and where possible, after giving you as much advance notice as is reasonably practicable in the circumstances;

2. to reduce or prevent interference with our systems or the use of Products or Services by others; or

3. if required to do so, as a result of a direction from any government, law enforcement or other authorities.

DELIVERY IN NEW ZEALAND ONLY

10. SMS traffic will only be delivered to Users in New Zealand and will not be sent by Cheeky Monkey Hosting to any other countries (except those with whom Cheeky Monkey Hosting may, from time to time, have an agreement to allow it to do so).

7. Acceptable Use Policy

1. The Cheeky Monkey Hosting Mobile Acceptable Use Policy ("AUP") describes the proper kinds of conduct and prohibited uses of Cheeky Monkey Hosting's services as subscribed to under the Service Agreement. These Usage Guidelines are not exhaustive and Cheeky Monkey Hosting reserves the right to modify the AUP at any time, effective upon posting of the modified Policy to http://www.cheekymonkeyhosting.co.nz. Any breach of the AUP is a breach of this agreement.

8. General Responsibilities

1. Cheeky Monkey Hosting expects you, and all other users of the Services, to take responsibility in using the Internet and Mobile Networks with courtesy and responsibility, and be familiar with and practice good Internet etiquette.

2. Violation of any of these guidelines is prohibited, and may result in the immediate termination or suspension of the services you receive from Cheeky Monkey Hosting according to your agreement with Cheeky Monkey Hosting including the Standard Terms and Conditions.

3. You shall remain solely liable and responsible for your use of the services and any and all content that you display, upload, download or transmit through the use of the services.

9. Notifications

1. The following email addresses are provided by Cheeky Monkey Hosting to facilitate the reporting of any alleged infringements of this Acceptable Use Policy:

 - Reporting of alleged abuses of security.

 - Reporting of alleged abuse of Cheeky Monkey Hosting's Services including spamming, mail bombing, and trolling.

10. Codes

SHORT CODES

1. The Content Provider may request Short Codes for Pull Services and Cheeky Monkey Hosting may, at its discretion, allocate to the Content Provider a Short Code.

ACCESS CODES

2. The Content Provider may arrange for an individual Short Code to be used in relation to more than one Pull Service by allowing that Short Code to be used in combination with different Codes so that an individual Code / Short Code combination triggers delivery of an individual Pull Service.

OWNERSHIP CODES

3. All Short Codes and Access Codes will remain the property of the Mobile Network provider at all times. Short Codes and Access Codes are allocated for use in respect of specific Pull Services and may not be assigned or transferred without Cheeky Monkey Hosting's written consent. The allocation of any Short Code or Access Code will cease on the termination of this Agreement, if not before.

NON USE OF CODES

4. If during any period of [7] consecutive days a Short Code is not used by Customers more frequently than 5 times per day, Cheeky Monkey Hosting may withdraw the allocation of that Short Code from the applicable Content Provider.

11. Advertising

Telecom and Vodafone reserve the right to review all advertising for every proposed or existing Content Service. In this regard, all such Advertising may be required to:

1. Be submitted to Cheeky Monkey Hosting for approval and be accompanied by an indication of the media, publications and times at which it is intended that the Advertising will be made public;

2. comply with the Advertising Code of Practice and the Advertising Code of Ethics published by the Advertising Standards Authority;

3. comply with all laws of New Zealand and those of any other relevant jurisdictions; and

4. be consistent with the nature of the Content Service to which it relates.

PROHIBITION

Subject to Cheeky Monkey Hosting's specific written authorisation to the contrary, Advertising for a Content Service must not:

1. be placed under the heading of adult entertainment or similar headings;

2. be misleading as to the nature, type or price of the Content Service or the benefits the Content Service can provide;

3. contain inaccurate, untrue or out of date information;

4. target individual groups who, by virtue of their circumstances, may place unreasonable faith and / or reliance in the Content Service to which the Advertising relates;

5. contain vulgar and/or suggestive language or images or innuendo or slang of a sexual nature;

6. promote or provide inflammatory or demeaning opinions of any individual or group, nor demean, debase or disparage any individual or group on any grounds including religious, political, ethnic, racial, gender, sexual orientation, disability, occupational status or age.

CONTENT OF ADVERTISING

All Advertising placed in any media, including print, radio and television media, on billboards, on teletext, on the internet or in any other printed form must contain:

1. the name of the Content Provider;

2. the Contact Number of the Content Provider;

3. a disclaimer of any liability for Telecom or Vodafone in relation to any Content or Service provided to the Customer:

And, in relation to Customer Charged Content, must contain:

1. the cost of the service and whether the price includes or excludes GST;

2. a warning to those not responsible for paying for the service to seek the permission of the person who pays the bill.

3. be clear, legible, presented horizontally and in a way that does not require close scrutiny.