Terms & Conditions
Important: These terms and conditions (together with the Customer Request) are a binding legal agreement between the customer specified in the Customer Request (Customer or you) and SMSGlobal Pty Ltd ACN 131 498 952 of 96-98 Market Street, South Melbourne, Victoria, 3205, Australia (SMSGlobal).
By ticking the I accept these terms and conditions button in the Customer Request and submitting the Customer Request or otherwise registering for the Services, you agree that:
- you have read and understood these terms and conditions; and
- following acceptance of a Customer Request by SMSGlobal, you will be bound by, and will abide by, these terms and conditions.
If you do not wish to be bound by these terms and conditions, please do not submit a Customer Request or otherwise register for the Services.
1. Defined terms & interpretation
1.1 Defined terms
In this agreement:
Business Day means a day in the State of Victoria, Australia that is not a Saturday, a Sunday or a gazetted public holiday in that State.
Business Hours means the period between 9.00am and 5.00pm on a Business Day.
Claim means a claim, demand or proceeding arising out of a cause of action, including breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action.
Commencement Date means the date that SMSGlobal notifies the Customer of SMSGlobal's acceptance of the Customer Request submitted by the Customer through the Website (and whether such notification is by email, by onscreen confirmation of acceptance or otherwise).
Confidential Information of a Disclosing Party means:
the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of this agreement;
- information that is by its nature confidential;
- information that is designated by the Disclosing Party as confidential; and
- information the Receiving Party knows, or ought to know, is confidential;
- all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (a); and
- all copies of the information, notes and other records referred to in paragraphs (a) and (b), but excludes information that:
- the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or
- is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted disclosees).
Customer Data means data and information relating to the Customer and its operations, facilities, personnel, assets, products, sales and transactions (including information relating to its End Users).
Customer Request means the online application form completed by the Customer on the Website and submitted to SMSGlobal.
Damages means all liabilities, losses, damages, costs and expenses (including all legal costs determined on a solicitor and own client basis) whether incurred or awarded against a party, disbursements, costs of investigation, litigation, settlement and judgment, and interest, fines and penalties, regardless of the Claim under which they arise.
Disclosing Party means a party who discloses or makes available Confidential Information to a Receiving Party.
End User means each end user to whom the Customer transmits one or more Messages.
External Factors has the meaning given in clause 2.3(b).
Force Majeure means:
- act of God, lightning, storm, flood, fire, earthquake, explosion cyclone, tidal wave, landslide or adverse weather conditions;
- act of public enemy, war (declared or undeclared), act of terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion or epidemic;
- the effect of any applicable laws, orders, rules or regulations of any government or other competent authority;
- embargo, power or water shortage or lack of transportation;
- any External Factors; or
- any other event beyond the reasonable control of a party.
Governmental Agency means any governmental, semi-governmental or judicial entity or authority.
Harmful Code means any virus, worm, trojan horse, trapdoor, software switch, time bomb, slicing routine, corruptive code, logic bomb, disabling code, disabling routine or expiration dates as these words are generally understood within the technology industry and any equivalent or similar corruptive mechanism.
Intellectual Property Rights means all intellectual property rights, including:
- patents, copyright, rights in circuit layouts, designs, registered designs, trade and service marks, trade names and any right to have confidential information kept confidential;
- any application or right to apply for registration of any of the rights referred to in paragraph (a); and
- all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist anywhere in the world (including Australia).
- the common law and equity;
- any statute, regulation, by-law, ordinance or subordinate legislation (including the Privacy Laws); or
- any licence, permit, authorisation, accreditation, code of practice, code of conduct, order, direction or other requirement which is enforceable against the Customer or SMSGlobal (as the case may be) or which is issued under an instrument referred to in paragraph (b),
and includes any amendment, change, update or replacement to any of them that may be implemented or take effect during the term of this agreement.
Messages means any electronic messages (including, SMS and MMS messages), data, information, text, media, images, features, advertisements, promotions, links, pointers and other content transmitted or received by the Customer through the SMSGlobal Systems.
Message Cost means the cost of sending a Message using the Services (which may be expressed as either a cost per Message or a cost per block of Messages).
Message Cost List means the list of Message Costs set out at http://www.smsglobal.com/en-au/sms/pricing.php, as varied by SMSGlobal from time to time.
Network Operator means a mobile network operator whose services or infrastructure are used (directly or indirectly) by SMSGlobal in the provision of any of the Services.
Personal Information means any information or opinion about a natural person (whether true or not), including 'personal information' as that term is defined in the Privacy Act, which either party collects or has access to, stores or discloses, or otherwise handles, in the course of performing, or receiving the benefit of, the Services.
Personnel means officers, employees, agents and contractors, including representatives.
Prepaid Fees means the fees paid by the Customer to SMSGlobal at or about the time that the Customer submits a Customer Request for Services.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws means:
- the Privacy Act, the Health Records Act 2001 (Vic), the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth);
- all codes, guidelines, service standards and procedures issued by a Governmental Authority; and
- all other laws, rules and regulation in any relevant jurisdiction (including Australia),
to the extent they relate to the privacy, protection, use or disclosure of Personal Information or data.
Receiving Party means a party to this agreement who obtains Confidential Information of the other party to this agreement.
Services means the services described in the Customer Request.
SMSGlobal Pre-Existing IPR means any Intellectual Property Rights owned and created by SMSGlobal prior to the Commencement Date (together with any improvements, modifications and enhancements made to those rights during the term of this agreement).
SMSGlobal Systems means all hardware, software, materials and resources used by (or on behalf of) SMSGlobal to provide the Services (and includes the Web Tools).
Website means the SMSGlobal website located at www.smsglobal.com (or any successor website as notified to the Customer from time to time).
Web Tools means any software, interface or other tools made available to the Customer by SMSGlobal to enable the Customer to receive the benefit of the Services.
In this agreement, unless the contrary intention appears:
- headings are for ease of reference only and do not affect the meaning of this agreement;
- the singular includes the plural and vice versa and words importing a gender include other genders;
- other grammatical forms of defined words or expressions have corresponding meanings;
- a reference to a clause, paragraph, schedule or attachment is a reference to a clause or paragraph of or schedule or attachment to this agreement and a reference to this agreement includes any schedules and attachments;
- a reference to a document or agreement, including this agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
- a reference to a party includes its executors, administrators, successors and permitted assigns;
- the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
- any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
- any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
- words and expressions importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies; and
- a reference to any statute or other legislation is to a statute or other legislation as amended or replaced from time to time.
1.3 Contract formation
The Customer acknowledges and agrees that no contract for the provision of Services will be formed between the parties unless and until a Customer Request placed via the Website by the Customer has been accepted by SMSGlobal, and the Customer has been given notification of that acceptance. Only once SMSGlobal accepts the Customer's application in accordance with paragraph 1.3 will a contract be formed.
1.4 Documents forming part of this agreement
This agreement consists of:
- clauses 1 to 17;
- the Message Cost List; and
- the Customer Request.
1.5 Precedence of documents
If there is any inconsistency between the provisions of the documents that together form this agreement, the provisions of the earlier mentioned document in clause 1.4 will prevail to the extent of that inconsistency.
2.1 Performance of the Services
SMSGlobal will, from the date that Customer pays the Prepaid Fees:
- provide the Services; and
- permit the Customer to access and use the Web Tools for the purposes of receiving the benefit of the Services,
until such time as the Prepaid Fees have been exhausted in accordance with clause 5 (unless this agreement is terminated earlier in accordance with its terms).
2.2 Access to the Web Tools
The Customer must:
- at its cost, provide appropriate access devices, software, operating conditions, cabling, telephone lines, modems and internet connections required for it to access the Web Tools and otherwise receive the benefit of the Services;
- ensure that no unauthorised use is made of the Web Tools;
comply with all of SMSGlobal's operating and security requirements and procedures relating to:
- access to the Web Tools; and
- the use of the Services,
(including in respect of passwords and other security information) as displayed on the Website or otherwise notified to the Customer from time to time;
other than as expressly permitted under this agreement, not obtain (nor attempt to obtain) any access to, or interfere with:
- any programs or data of SMSGlobal, a Network Operator or any other client of SMSGlobal; or
- any part of the SMSGlobal Systems or any Network Operator's systems, hardware, software or networks; and
- not introduce any Harmful Code into the SMSGlobal Systems or the systems, hardware, software or networks of any Network Operator.
- If the Customer becomes aware of or suspects that a breach of any of the obligations set out in paragraph (a) has occurred, the Customer must promptly notify SMSGlobal, in which case SMSGlobal may take such action as it considers appropriate (which may including changing the Customer's passwords and other security information).
2.3 No guarantee of continuity of Services
- Despite anything else in this agreement, SMSGlobal does not undertake, warrant or guarantee that the Services (including access to the Web Tools or other SMSGlobal Systems) will be uninterrupted, continuous or error free.
- The Customer acknowledges and agrees that its use of the Services is dependent on, and affected by, a number of environmental and other factors outside of the reasonable control of SMSGlobal, including the infrastructure and services provided by Network Operators (External Factors). Subject only to clause 13.4, SMSGlobal will have no liability whatsoever relating to any failure of, or interruption in the performance of, the Services resulting from any External Factors. In the event of failure of the Services, SMSGlobal will use reasonable commercial endeavours to restore the Services to an operational state with the minimum practicable delay.
The Customer acknowledges that, from time to time:
- SMSGlobal will conduct routine and other maintenance on the Website and the SMSGlobal Systems; and
- the Network Operators will conduct routine and other maintenance on their respective systems, hardware, software and networks,
and the Customer agrees that, during the conduct of such maintenance, it may not be able to access or use the Services.
- The Customer acknowledges and agrees that SMSGlobal may suspend the Services (including the Customer's access to the Web Tools) if:
- SMSGlobal's access to any system, software, hardware or network of any Network Operator is suspended for any reason;
- SMSGlobal is required to do so by any Governmental Agency or Network Operator; or
- the Customer breaches any provision of this agreement.
3. Customer's obligations
3.1 Licences and compliance
The Customer must:
obtain and maintain throughout the term of this agreement all relevant licences, approvals, permits and certificates:
- required in respect of delivery of the Messages; and
- otherwise required in order to receive the benefit of the Services;
- comply with all applicable Laws and industry codes and practices; and
comply with SMSGlobal's directions, policies and procedures relating to the use of the SMSGlobal Systems and the Services.
- any applicable Law (including the Privacy Laws) or industry code or practice; or
- any other rules or guidelines posted on the Website or otherwise notified to the Customer by SMSGlobal from time to time;
- in any way that may have a detrimental effect on the goodwill or good standing of SMSGlobal or any Network Operator;
- in a way that may expose SMSGlobal or any Network Operator to the risk of any legal or administrative action including prosecution under any Laws;
- to transmit any communication or Messages that may harm a minor in any way;
- to send unsolicited electronic commercial messages where the recipient has not consented to receive such messages;
- to interfere with or disrupt SMSGlobal's business, or the services, hardware, software or networks of any Network Operator;
- in a way that would infringe any person's Intellectual Property Rights or other rights; or
- in any other way that contravenes the requirements of any Network Operator as notified to the Customer from time to time (which notification may be given in accordance with clause 16 or by the posting of a notice on the Website to that effect).
3.3 Responsibility for Messages
- is solely responsible for all Messages (whether transmitted on its own behalf or on behalf of a third party); and
- acknowledges and agrees that SMSGlobal has no editorial control over the Messages and is under no obligation review, moderate, amend or modify the Messages as part of the Services.
- The Customer acknowledges and agrees that, notwithstanding paragraph (a), SMSGlobal and the Network Operators may, in their absolute discretion, monitor the Messages sent by or on behalf of the Customer using the Services.
- The Customer must bear all costs arising out of any complaints made in connection with the Messages (including complaints made by any Governmental Agency).
3.4 Volumes and forecasting
The Customer must:
- on request by SMSGlobal from time to time, provide SMSGlobal with volume forecasts for the use of the Services and such other information that SMSGlobal may reasonably request concerning the Customer's use of the Services; and
- provide SMSGlobal with revised volume forecasts for its use of the Services if the Customer anticipates, from time to time, that there is likely to be a significant increase or decrease in its use of the Services.
4. Variation to the agreement
SMSGlobal may from time to time, in its absolute discretion, vary this agreement (including by varying any Message Costs set out in the Message Cost List) as follows:
if SMSGlobal considers the variation is likely to benefit the Customer or have a neutral or minor detrimental impact on the Customer:
- SMSGlobal will post the amended agreement on the Website and may (in its absolute discretion) also notify the Customer of the variation in accordance with clause 16; and
- the variation will come into effect on the date the amended agreement is posted to the Website;
if SMSGlobal considers the variation is likely to have a material detrimental impact on the Customer:
- SMSGlobal will post the amended agreement on the Website and will notify the Customer of the variation in accordance with clause 16.1; and
- the variation will come into effect 5 Business Days after the date on which the variation is notified to the Customer.
- if SMSGlobal considers the variation is likely to benefit the Customer or have a neutral or minor detrimental impact on the Customer:
- The Customer must regularly check the Website and review the latest version of this agreement included on the Website to ensure that it is complying with the most current version of this agreement published by SMSGlobal.
5. Payment and charging
5.1 Basis for charging
The Customer agrees that:
- the Prepaid Fees constitute a credit which will enable the Customer to use the Services until such time as that credit is exhausted;
- each time the Customer sends a Message or block of Messages (as the case may be) the Customer will be charged against the Prepaid Fees for sending those Messages at the applicable Message Cost as set out in the Message Cost List (which Message Cost List may be varied by SMSGlobal from time to time in accordance with clause 4); and
- each Message or block of Messages (as the case may be) will be charged against the Prepaid Fees as soon as it is entered into the SMSGlobal Systems and regardless of whether or not the Message(s) are received by the intended End User(s).
5.2 Customer must be in credit
The Customer must have paid SMSGlobal the Prepaid Fees (in clear funds) in order for the Customer to use the Services. SMSGlobal is under no obligation to provide the Services if:
- the Customer has not paid the Prepaid Fees to SMSGlobal; or
- the Customer's credit (from the Prepaid Fees) has been exhausted.
6.1 Defined terms
In this clause 6, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.
6.2 GST inclusive amounts
For the purposes of this agreement, where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under this agreement, the amount or consideration will not be increased on account of any GST payable on that supply.
6.3 Consideration GST exclusive
Any consideration to be paid or provided for a supply made under or in connection with this agreement, unless specifically described in this agreement as GST inclusive, does not include an amount on account of GST.
6.4 Gross up of consideration
Despite any other provision in this agreement, if a party (Supplier) makes a supply under or in connection with this agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this agreement as GST inclusive):
- the consideration payable or to be provided for that supply under this agreement but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and
- the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
6.5 Reimbursement (net down)
If a payment to a party under this agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.
7. Stamp duty and other Taxes
7.1 Stamp duty
Any stamp duty, duties or other taxes of a similar nature (including fines, penalties and interest) in connection with this agreement or any transaction contemplated by this agreement must be paid by the Customer.
7.2 Fees exclusive of taxes
Except as otherwise specified in this agreement, the Prepaid Fees and any other fees and charges payable by the Customer under this agreement are exclusive of all taxes, duties and charges imposed or levied in Australia or overseas in connection with this agreement or the Services. Without limiting the foregoing, the Customer will be liable for any new taxes, duties or charges imposed subsequent to the Commencement Date in respect of this agreement.
7.3 Withholding tax
If a Law, or regulation pursuant to a Law, requires the Customer to deduct or withhold an amount on account of any tax from any payment to SMSGlobal under or in connection with this agreement:
- the Customer must make the withholding or deduction; and
- the amount of the payment to SMSGlobal must be increased by such additional amount as is necessary to ensure that the amount received and retained by SMSGlobal (after taking into account all deductions and withholdings on account of tax) is equal to the amount that SMSGlobal would have received had the payment in question not been subject to any deductions or withholdings.
8. Intellectual Property Rights
8.1 SMSGlobal Intellectual Property Rights
SMSGlobal owns (or is the licensee of) all Intellectual Property Rights in:
- the Website and the SMSGlobal Systems;
- all SMSGlobal Pre-Existing IPR; and
- all documentation, know-how, methodologies, equipment and other materials supplied or made available to the Customer under or in connection with this agreement,
and nothing in this agreement transfers or assigns to the Customer any of those rights.
8.2 Customer Intellectual Property Rights
- SMSGlobal acknowledges and agrees that, as between the parties, the Customer retains all Intellectual Property Rights in the Customer Data.
- The Customer grants to SMSGlobal a non-exclusive, non-transferable, royalty-free licence to use and reproduce the Customer Data solely for the purpose of enabling SMSGlobal to discharge its obligations under this agreement.
9. Confidential information
9.1 Use and disclosure
A Receiving Party:
- may use Confidential Information of the Disclosing Party only for the purposes of this agreement; and
must keep confidential all Confidential Information of the Disclosing Party except:
- for disclosures permitted under this clause 8; and
- to the extent (if any) the Receiving Party is required to disclose any Confidential Information by Law or in accordance with the rules of an applicable stock exchange.
9.2 Use and disclosure of Confidential Information
A Receiving Party may disclose Confidential Information of the Disclosing Party:
- in the case of SMSGlobal, to Network Operators as required by the terms of any agreements between SMSGlobal and those Network Operators; and
to persons who:
- have a need to know for the purposes of this agreement (and only to the extent that each has a need to know); and
- in the case of the Personnel of the Receiving Party, have been directed by the Receiving Party to keep confidential all Confidential Information of the Disclosing Party; and
- in the case of other persons, have agreed in writing with the Receiving Party to comply with substantially the same obligations in respect of Confidential Information of the Disclosing Party as those imposed on the Receiving Party under this agreement,
(each a Direction).
9.3 Receiving Party's obligations
A Receiving Party must:
- ensure that each person to whom it discloses Confidential Information of the Disclosing Party under clause 9.2(b)(ii) complies with its Direction; and
- notify the Disclosing Party of, and take all reasonable steps to prevent or stop, any suspected or actual breach of a Direction.
9.4 Disclosure required by Law
If a Receiving Party is required by Law or the rules of an applicable stock exchange to disclose any Confidential Information of a Disclosing Party to a third person (including government) the Receiving Party must:
before doing so:
- notify the Disclosing Party; and
- give the Disclosing Party a reasonable opportunity to take any steps that the Disclosing Party considers necessary to protect the confidentiality of that information; and
- notify the third person that the information is confidential to the Disclosing Party.
- agrees to be bound by the Privacy Laws applicable to it with respect to any act done or practice engaged in by the party for the purposes of this agreement (including, in relation to the Customer, in respect of the collection, use, disclosure and storage of the Personal Information of End Users);
must (and must ensure that its Personnel) comply with:
- the Privacy Laws and all guidelines issued by applicable privacy offices (and any similar regulatory bodies); and
- the privacy procedures or policies set out at [insert hyper link to SMSGlobal's privacy policies], as varied by SMSGlobal from time to time;
must notify the other party immediately:
- of any complaint from any person alleging a breach of the Privacy Laws;
- if it becomes aware of a breach, or a suspected or possible breach, by it of any of its obligations under this clause 10; or
- if it becomes aware that any disclosure of Personal Information may be required by Law;
cooperate with the other party in:
- resolving any complaint alleging a breach of the Privacy Laws or any privacy statement regarding any Personal Information; and
- providing access to any record of Personal Information following a request from an individual; and
(e) take appropriate technical and organisational measures to prevent (to the extent reasonably practicable):
- unauthorised or unlawful use or disclosure of; and
- accidental loss or destruction of, or damage to,
11. Data protection
11.1 Use of Customer Data
SMSGlobal must not (and must ensure that its Personnel do not):
- use Customer Data held by SMSGlobal, or to which SMSGlobal has access, other than for the purposes of fulfilling its obligations under this agreement; or
purport to sell, let for hire, assign rights in or otherwise dispose of any Customer Data, other than as required to enable SMSGlobal to:
- disclose Customer Data to Network Operators in accordance with the terms of SMSGlobal's agreements with such Network Operators; and
- comply with applicable Laws or the rules of any applicable stock exchange.
11.2 Safeguarding Customer Data
- establish and maintain reasonable safeguards against the destruction, loss or alteration of Customer Data in the possession, custody or control of SMSGlobal; and
- use its reasonable endeavours to protect the Customer Data from destruction, loss, alteration or security breaches while the Customer Data is stored in the SMSGlobal Systems.
The Customer warrants to SMSGlobal that:
- it has the requisite power and authority to enter into this agreement and to carry out the obligations contemplated by this agreement;
- the transmission of the Messages (or any of them) will not infringe the Intellectual Property Rights or other rights of any person;
- it holds (and will at all times continue to hold) all rights permits, licences, authorisations and accreditations required for it to perform its obligations under this agreement; and
the performance of its obligations under this agreement will:
- comply with all such rights, permits, licences, authorisations and accreditations; and
- not contravene any applicable Laws.
13. Exclusion of warranties and limited liability
13.1 Exclusion of warranties
- SMSGlobal excludes all express and (to the maximum extent permitted by law) implied conditions, warranties and liabilities, except for any liability or implied condition or warranty the exclusion or limitation of which would contravene any applicable statute or cause any part of this clause to be void (Non-excludable Condition).
To the maximum extent permitted by law, SMSGlobal's liability to the Customer for breach of any Non-excludable Condition is limited, at SMSGlobal's option, to:
- in the case of goods, repair or replacement of the goods or payment of the cost of the repair or replacement; and
- in the case of services, resupply of the services or payment of the cost of the resupply.
13.2 Exclusion of liability
Subject to clause 13.4(b), but despite any other provision of this agreement, SMSGlobal excludes all liability:
- in relation to Messages transmitted by the Customer using the Services (including any liability to third parties arising as a result of the transmission of any Messages); and
- for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, the cost of procuring any substitute services, or any indirect, consequential or special loss, damage, cost or expense or other Claims for consequential compensation, incurred by or awarded against the Customer under or in any way connected with this agreement or the provision of the Services.
13.3 Liability cap
Subject to clauses 13.2 and 13.4(b), but despite any other provision of this agreement, SMSGlobal's total aggregate liability for any and all Damages suffered or incurred by the Customer under or in any way connected with this agreement or the provision of the Services is limited to an amount equal to the Prepaid Fees paid by the Customer to SMSGlobal under this agreement.
13.4 Application of exclusions and limitations
The exclusions and limitations of liability in clauses 13.2 and 13.3:
- apply whether the relevant Claim is made under statute, in tort (for negligence or otherwise), under an indemnity, in equity or otherwise; and
do not exclude or limit the application of any provision of any statute (including the Trade Practices Act 1974 (Cth)) where to do so would:
- contravene that statute; or
- cause any part of this clause to be void.
The Customer indemnifies SMSGlobal and its Personnel (those indemnified), and will hold those indemnified harmless, against all Damages suffered or incurred by any or all of those indemnified arising, directly or indirectly, out of or in connection with:
- a breach of this agreement by the Customer;
- the transmission of any Messages (including any Damages sustained or incurred by those indemnified in connection with complaints or Claims relating to any Messages);
- any negligent or fraudulent act, error or omission on the part of the Customer, its Personnel or End Users;
- loss of or damage to any property or injury to or death of any person caused by any act or omission of the Customer, its Personnel or End Users; or
- any Claim by a third party (including any Network Operator or End User) against SMSGlobal relating to the Services or the subject matter of this agreement.
15.1 Termination by the Customer for convenience
The Customer may terminate this agreement at any time for convenience by giving SMSGlobal notice in writing to that effect.
15.2 Termination by SMSGlobal due to Network operator termination
SMSGlobal may terminate this agreement immediately by notice to the Customer if any of SMSGlobal's agreements with relevant Network Operators terminate or expire.
15.3 Termination by SMSGlobal for cause
SMSGlobal may terminate this agreement immediately by notice to the Customer if:
(a) the Customer commits any breach of this agreement that is:
- capable of remedy and the Customer fails to remedy the breach within 30 days after receiving written notice requiring it to do so; or
- incapable of remedy;
- the Customer ceases to be able to pay its debts as they become due;
- any step is taken by a mortgagee to take possession or dispose of the whole or part of the Customer's assets, operations or business;
- any step is taken to enter into any arrangement between the Customer and its creditors;
- any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person of the whole or part of the Customer's assets, operations or business;
- the Customer disposes of the whole or part of its assets, operations or business other than in the ordinary course of business;
- the Customer ceases to carry on business; or
- where the Customer is a partnership, any step is taken to dissolve that partnership.
15.4 Consequences of termination
On expiry or termination of this agreement for any reason:
the Customer must:
- promptly return all materials, information and documentation provided to it by SMSGlobal in connection with this agreement;
- refrain from accessing or using any SMSGlobal Systems (including the Web Tools), and ensure that none of its Personnel access or use any of the SMSGlobal Systems; and
- retain any Prepaid Fees that have been paid to it;
- terminate all means or modes of access and use of the SMSGlobal Systems by the Customer and its Personnel; and
- be regarded as discharged from any further obligations under this agreement.
- the Customer must:
Despite anything else in this agreement, the Customer acknowledges and agrees that SMSGlobal may keep a reasonable number of copies of:
- the Customer's Confidential Information disclosed to SMSGlobal under this agreement; and
- the Customer Data,
for record keeping and quality control purposes, to allow SMSGlobal to comply with all applicable Laws, and to otherwise fulfil the terms of SMSGlobal's agreements with Network Operators.
15.5 Accrued rights and remedies
Termination of this agreement will not prejudice any right of action or remedy which may have accrued to either party prior to such termination.
16. Notices and other communications
16.1 Service of notices
Except as otherwise provided under this agreement, a notice, demand, consent, approval or communication under this agreement (Notice) must be:
- (a) in writing, in English and signed by a person duly authorised by the sender; and
hand delivered or sent by prepaid post or facsimile or email to:
- in relation to the Customer, the Customers address for Notices the specified in the Customer Request; and
- in relation to SMSGlobal to:
as varied from time to time by Notice given by the recipient to the sender.
16.2 Effective on receipt
A Notice given in accordance with clause 16.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
- if hand delivered, on delivery;
- if sent by email, two hours after the time that the email is sent (unless the sender receives notification during that time that delivery of the email was not successful);
- if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia); or
- if sent by facsimile, when the senders facsimile system generates a message confirming successful transmission of the entire Notice unless, within eight Business Hours after the transmission, the recipient informs the sender that it has not received the entire Notice,
but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
16.3 Marketing & Product Information
SMSGlobal may contact you from time to time to inform you of company or product news, promotions and offers.
This agreement may be altered only in writing signed by each party.
17.2 Approvals and consents
Except where this agreement expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under this agreement.
The Customer may only assign its rights under this agreement with the prior written consent of SMSGlobal.
17.4 Force Majeure
Neither party is liable for any failure to perform or delay in performing its obligations under this agreement if that failure or delay is due to anything beyond that partys reasonable control. This clause does not apply to any obligation to pay money. The deadline for any obligation that is affected by the Force Majeure will be extended by a period equivalent to the period for which the Force Majeure has prevented that obligation being performed.
17.5 Entire agreement
This agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, which do not form part of, and may not be relied on by either party in construing, this agreement.
17.6 Further action
Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this agreement and any transaction contemplated by it.
Any indemnity or any obligation of confidence under this agreement is independent and survives termination of this agreement. Any other term by its nature intended to survive termination of this agreement survives termination of this agreement, including clauses 8, 9, 13, 14, 15.4 and this clause 17.7.
Each clause of this agreement and each part of each clause must be read as a separate and severable provision. If any provision is found to be void or unenforceable, that provision may be severed and the remainder of this agreement will continue in force.
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
Except where this agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
17.11 Governing law and jurisdiction
This agreement is governed by the laws of Victoria, Australia and each party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of Victoria, Australia.