SMS Terms & Conditions

SMS Terms & Conditions

Background
A These Terms govern the Services provided by the Supplier to the Customer.
B The Customer acknowledges that it has read and agrees to the Terms.

Terms
1. Term
The Terms commence on the Agreement Date and continue until it is terminated in accordance with its terms (Term).
2. Customer obligations
2.1 General obligations
The Customer must
(a) comply with all Applicable Laws in connection with the Services, including Privacy Laws and anti‑spam legislation;
2.2 Specific obligations
(a) The Customer must comply with:
(i) the Terms; and
(ii) the reasonable directions, policies and procedures of the Supplier or a third party identified by the Supplier.
(b) The Customer must obtain and maintain all hardware, software and communications equipment necessary for it to use the Services.
2.3 Mobile Numbers
Where the Supplier allocates a mobile number to the Customer for use with the Services, that number:
(a) remains the property of the Supplier; and
(b) is licensed to the Customer solely for use while the Services are enabled.
2.4 Acknowledgement
The Customer agrees and acknowledges that it is solely responsible for all SMS messages sent using the Services, including their content, recipients and timing whether or not the person who sends the SMS messages was authorised to do so by the Customer.

3. Supplier obligations
3.1 Obligations
The Supplier must:
(a) use reasonable endeavours to provide the Services in accordance with the Terms;
3.2 Qualifications
(b) The obligations under clause 3.1 will not apply in the event of:
(i) any non-conformance which is caused, or contributed to, by the Customer’s use of the Services contrary to the Supplier’s instructions or the Terms;
(ii) the unsuitability or malfunction of the Customer’s network, systems, computer hardware or software; or
(iii) a Force Majeure Event.
(c) The Customer agrees and acknowledges that the Supplier is not liable for any SMS messages sent using the Services, including their content, recipients and timing, and/or any automated messages sent by the Supplier to the Customer.
4. Fees
4.1 Payment
(a) The Customer acknowledges that use of the Services incurs additional Fees separate from, and in addition to any other fees payable to the Supplier.
(b) Fees for Services may include one or more of the following, as specified in the fee table in the Schedule:
(i) a recurring monthly fee;
(ii) a usage‑based fee per SMS sent; and/or
(iii) a fee per allocated mobile number.
(c) Fees are payable irrespective of whether SMS messages are successfully delivered.
(d) The Supplier may vary the Fees by giving the Customer at least 30 days’ written notice.
(e) If the Customer continues to use the Services after the notice period, the updated Fees apply.
(f) The Fees are payable in Australian dollars within 7 days of the invoice date, unless otherwise agreed between the parties.
(g) If the Customer fails to pay the Fees by the due date, or any other amounts owing to the Supplier, the Supplier may:
(i) charge interest on the outstanding amount at the Interest Rate;
(ii) suspend further performance of the Services, and (at the Supplier’s discretion) any other services provided to the Customer by the Supplier;
(iii) set off the outstanding amounts against any amounts owed to the Customer by the Supplier; and
(iv) terminate the Terms.
(h) The Customer must pay the Supplier all costs and expenses incurred in recovering any outstanding Fees, including legal costs.
4.2 GST
(a) A reference in this clause to a term defined or used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) is a reference to that term as defined or used.
(b) All amounts in the Terms are exclusive of GST, unless otherwise specified.
(c) If GST is imposed on a supply made under, or in connection with, the Terms, the recipient of the supply must pay the supplier an amount equal to the GST payable on the supply in addition to, and at the same time as, any consideration for the supply.
5. Licence for Customer Data
5.1 Licence and ownership
(a) The Customer retains ownership of the Customer Data and will have sole responsibility for its legality, reliability, integrity, accuracy and quality.
(b) The Customer grants the Supplier a worldwide, non-exclusive, royalty-free, perpetual, transferable licence to use, disclose, reproduce, store, distribute, publish, export, adapt, edit, translate, produce derivative works from or copy the Customer Data for the following purposes:
(i) enabling the Supplier to perform its obligations and exercise its rights under the Terms;
(ii) informing the Customer of other products or services that the Supplier or its Related Bodies Corporate may offer from time to time or in relation to Third Party Products;
(iii) using usage patterns, trends and other statistical or behavioural data derived from use of the Services, for the purposes of providing, operating, maintaining, or improving the Services or any of the Supplier products and services; and
(iv) sharing Customer Data with a third party for the purposes of performing or improving the Services.
(c) The Supplier will not pre-screen, monitor, vet or edit any Customer Data, unless required to do so under any Law.
5.2 Back-up policy
(a) The Supplier will follow its archiving procedures for Customer Data in accordance with its standard Back-up policy from time to time.
(b) The Supplier will not be responsible for any loss, destruction, alteration, corruption or disclosure of any Customer Data caused, or contributed to, by an act or omission of the Customer or any third party.
5.3 Personal Information and other sensitive data
(a) The Customer warrants that, in relation to any Customer Data comprising Personal Information or otherwise sensitive data:
(i) it has been collected in accordance with its own privacy policy and applicable Privacy Laws; and
(ii) it has obtained all necessary Approvals and consents to grant the Supplier the licence in clause 5.1(b), or to make such information available to the Supplier for its use.
6. Warranties
The Customer warrants on a continuing basis that it will use the Services in accordance with any usage restrictions specified in the Terms or by the Supplier or a third party identified by the Supplier.
7. Liability and indemnity
7.1 Liability
(a) To the fullest extent permitted by Law, the Supplier:
(i) excludes all express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), in connection with the Services;
(ii) is not liable for Consequential Loss suffered by the Customer or a third party which arises out of, or in connection with, the Terms;
(iii) is not liable for any delayed, failed or undelivered SMS messages sent using the Services;
(iv) is not liable for loss of data or business arising from SMS usage;
(v) is not liable for any claims arising from the content or recipients of SMS messages sent by the Customer; and
(vi) is not liable for any Loss to property or for personal injury or death.
(b) The Supplier’s aggregate liability under the Terms to the Customer or any third party, however arising, is limited to the Fees paid by the Customer to the Supplier in relation to the Services, that is the subject of the Claim, in the 6 months preceding the Claim.
7.2 Indemnity
The Customer indemnifies, and must continue to indemnify, the Supplier, its Related Bodies Corporate, and the Personnel of those entities, from all Loss incurred by them, and all Claims against them, arising out of, or in connection with:
(a) any of the Customer’s representations or information being false, inaccurate or misleading;
(b) the Customer’s infringement of the Supplier IP;
(d) the Customer’s breach of the Terms;
(e) the Customer’s use of the Services;
(f) an act or omission by the Customer in connection with the Terms.
7.3 Survival
This clause 7 survives termination of the Terms.
8. Termination
8.1 Termination by Supplier
(a) The Supplier may terminate the Services at any time, with or without cause, immediately .
8.2 Termination by Customer
(a) The Customer may terminate the Services at any time by disabling the Services within the application.
(b) Disabling the Services constitutes automatic termination of the Terms, without the need for further notice.
8.3 Effect of Termination
Upon termination of the Services for any reason:
(a) the Customer’s right to send SMS messages immediately ceases;
(b) any allocated mobile number is forfeited and may be reassigned by the Supplier;
(c) all outstanding Fees accrued up to the termination date remain payable; and
(d) termination does not affect any rights or obligations accrued prior to termination.
9. Privacy
(a) Each party must comply with the Supplier’s privacy policy and Privacy Laws in relation to Personal Information provided or made available to it under the Terms.
(b) The Customer warrants that:
(i) it has obtained the necessary consents to disclose the relevant Personal Information to the Supplier and permit the Supplier to use the Personal Information under the Terms.
10. Force Majeure Events
10.1 No release from obligation to pay money
A Force Majeure Event does not excuse a party from any obligation to pay money.
11. Notices and electronic communications
11.1 Electronic communication
The parties consent to giving and receiving notices electronically.
12. General
12.1 Set off
The Supplier may set off amounts owed or payable under the Terms against amounts payable to the Customer.
12.2 Severability
If any part of the Terms is or becomes invalid or unenforceable under any law, it is severed in the relevant jurisdiction but only to the extent it is invalid or unenforceable.
12.3 Variations
The Supplier may update the Terms from time to time by providing notice through the application or in writing.
12.4 Waivers
A waiver of a right, power or remedy must be signed by the party giving it and cannot be implied by conduct, delay or failure to act.
12.5 Survival
Each obligation and warranty capable of future operation will continue in force after the Terms is fully performed or has otherwise ended.
12.6 Governing law and jurisdiction
(a) This Terms is governed by the laws in force in Victoria, Australia.
(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in Victoria, Australia and waives any right to claim that those courts are an inconvenient forum.
13. Definitions and interpretation
13.1 Defined terms
Agreement Date means the date the Customer enables the Services.
Applicable Laws means any law, regulation, mandatory guideline or standard, ordinance, court ruling or requirement or direction of a Government Agency, or similar, in any jurisdiction in which this Terms is performed, or governing the Services or a party to this Terms anywhere in the world.
Business Day means a day that is not a Saturday, Sunday or gazetted public holiday in Melbourne, Victoria, Australia.
Claim means any claim, demand, remedy, suit, action, proceeding, right of action, claim for compensation or claim for abatement of any monetary obligation, whether arising under contract (including this Terms), in tort (including negligence), at common law, in equity, under statute, under an indemnity or otherwise.
Consequential Loss means any of the following, however arising and even if it is reasonably contemplated by the parties at the Agreement Date:
(a) incidental, special, remote or unforeseeable loss;
(b) loss of revenue, profit, income, bargain, opportunity, use, customers or Customers, uptime, business, contract, goodwill, or anticipated savings, loss or corruption of data, loss of use of data, loss caused by business interruption, or the cost of obtaining new financing or maintaining existing financing, but excluding loss of any amounts that, other than for the act or omission of a party, would have been payable under the Terms;
(c) costs or expenses incurred to prevent or reduce loss or damage which otherwise may be incurred or suffered by a third party; or
(d) loss or damage set out above in paragraphs (a) to (c) that is incurred or suffered by or to a third party.
Customer Data means all data, content, works, materials and metadata:
(a) uploaded or submitted to otherwise made available by the Customer;
(b) supplied by the Customer to the Supplier; or
(c) generated because of the use of the Services by, or an act or omission of, the Customer,
and includes the content of SMS messages.
Fees means the fees as set out in the Schedule and any other fees payable by the Customer for the Services under the Terms.
Force Majeure Event means an event or circumstance:
(a) that is beyond the reasonable control of a party;
(b) which that party is not reasonably able to prevent or overcome; and
(c) which prevents that party from performing a material obligation under the Terms, including, subject to satisfaction of the foregoing:
(i) extreme weather events, fire or natural disaster;
(ii) acts of war, riots, terrorism or vandalism;
(iii) failure or shortage of supplies, equipment, materials or essential utilities;
(iv) pandemic, epidemic or other widespread threat to human health (including an outbreak or recurrence);
(v) strike, embargo or industrial disturbance;
(vi) computer hacking, internet interruption or virus or malicious damage;
(vii) government imposed shutdown or closure; and/or
(viii) a change in Applicable Laws.
Government Agency means any governmental, judicial or statutory body with authority or jurisdiction over the Terms or a party.
Interest Rate means interest at the rate of 2% above the rate fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic).
Laws means any applicable rules of common law, principles of equity, international, federal, state and local laws, statutes, rules, regulations, proclamations, ordinances and by-laws and other subordinate legislation, rulings or legal requirements anywhere in the world, including Privacy Laws.
Loss includes any loss, cost, expense or damage, regardless of whether it is:
(a) direct or indirect;
(b) present or future;
(c) fixed or ascertained; or
(d) arising by Law,
including Consequential Loss.
Personal Information means data by which a person may be personally identified, including a person’s name, postal address, email address, phone number and any other information a person collects, including personal or personally identifiable information under applicable Privacy Laws.
Personnel means a party’s directors, officers, employees, agents, consultants, contractors or sub-contractors.
Privacy Laws means applicable privacy data protection and anti-spam laws, rules, regulations, best practices and regulatory guidance, including the Privacy Act 1988 (Cth) and any other equivalent Law.
Related Body Corporate has the meaning in the Corporations Act 2001 (Cth).
Services means the SMS messaging functionality provided by the Supplier and enabled by the Customer.
Term has the meaning in clause 1.
Terms means these Services Terms and Conditions and the Schedule.
13.2 Interpretation
In the interpretation of the Terms, unless stated otherwise:
(a) a reference to AUD, $A, dollar or $ is to Australian currency;
(b) a reference to a party is to a party to the Terms and includes the party’s successors and permitted transferees and assigns and if a party is an individual, includes executors and personal legal representatives;
(c) a reference to a person includes a natural person or legal entity;
(d) a reference to time is a reference to time in Victoria, Australia;
(e) if an obligation must be performed or an event must occur on a day that is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;
(f) an obligation or liability assumed by, or a right conferred on, 2 or more parties binds or benefits them all jointly and severally;
(g) words such as ‘including’ or ‘for example’ do not limit the preceding words;
(h) all grammatical forms of defined terms have a corresponding meaning;
(i) singular includes the plural and vice versa;
(j) a provision of the Terms must not be construed against a party on the basis that party was responsible for preparing it; and
(k) the main body of the Terms will prevail to the extent of any inconsistency with any other part of the Terms.

Schedule
The Customer agrees to the following fees, as applicable:

(a) Monthly fee

$25 per month
Includes an Organisation mobile number

(b) Usage‑based fee

$0.10 per SMS sent

(c) Fee per allocated mobile number

$25 per month
For each additional Centre mobile number