- You wish to use Our Service as either a paying customer (“Customer”) and / or as a customer on a non-chargeable basis (“Non-billable Customer”). Whether or not You are entering into this Agreement as a Customer or as a Non-billable Customer will be set out on the front signature page of the Agreement (the “Signature Page”), or as part of Your online registration.
- You wish to use the Service and We are willing to make the Service available to You subject to and in accordance with the terms and conditions of the Agreement.
- The terms and conditions of this Agreement:
- are the only terms and conditions upon which We are prepared to make the Service;
- shall govern your use of any Service made available to You as a Customer and/or as a Non-billable Customer; and
- shall govern Your access to, and use of, the Service to the exclusion of all other terms and conditions.
- For the avoidance of doubt, any reference to the Service in these Terms and Conditions shall be interpreted to include where the Service is made available to both Customers and Non-billable Customers except where expressly stated otherwise.
- The Service enables You to do one or more of the following:
- send and receive SMS, MMS, voice and / or other format messages;
- receive voicemails;
- send and receive faxes;
- make and receive voice calls;
- locate a GSM or GPS device; and/or
- any service that We make available to You during the term of the Agreement, as more particularly defined in the Signature Page or as part of Your online registration.
- Any such message, voicemail, fax, voice call or device detection, and any other Service that we may make available to You, shall be referred to in these Terms and Conditions as a “Transaction”.
- The Service enables You to do one or more of the following:
- We may, at our discretion, make the Service (or any part of the Service) available to You as a Non-billable Customer to enable You to:
- trial one or more elements of the Service described in the above clause 2; and / or
- use any element of the Service described in the above clause 2 or any other service made available by Us to You free of charge from time to time at Our absolute discretion.
- The Service will only be made available to you as a Non-billable Customer for either a limited period of time and/or limited number of Transactions as specified on the Signature Page or as part of Your online registration (“Trial Period”).
- Your access to the Service as a Non-billable Customer shall terminate immediately as soon as the Trial Period expires. In the event that the Trial Period is limited both in time and by the number of transactions, the Trail Period shall expire as soon as either limit is reached (i.e. whichever occurs first).
- For the avoidance of doubt, if You have not agreed to become a Customer then following expiry of the Trial Period, You shall have no access to the Services. If You wish to make use of the Services, You will be required to enter into an agreement with Us for the provision of the Services.
- We may, at our discretion, make the Service (or any part of the Service) available to You as a Non-billable Customer to enable You to:
Availability and Interruption of the Service
- The Service is made available to You as an account, to which a unique 11 digit virtual mobile number or a unique combination of shared short code and keyword may be allocated.
- Some or all elements of the Service may be accessed via a web application, an email gateway, a software tool and / or a web service, the APIs of which You may embed in Your technology offerings, all as more particularly described on Our website at www.esendex.com.
- We will make the Service available to You as either a Customer and / or a Non-billable Customer using reasonable skill and care. You do however acknowledge and agree that the availability of the Service, Your ability to access and / or use the Service and the conducting of any given Transaction may depend upon factors beyond Our reasonable control, including (but not limited to):
- factors affecting the operation of the Service and / or preventing Transactions from being successfully conducted such as, by way of example, geographical or topographical shortcomings in the network of any telecommunications network operator (“Network Operator”), network capacity, physical obstructions or atmospheric conditions; or
- factors preventing end-users from receiving messages, voicemails, faxes and / or voice calls (as applicable) such as, by way of example, the terms and conditions of an end-user’s service provider.
- We cannot therefore guarantee:
- that the Service will be available to You at all times or free from faults or interruptions;
- the receipt by any intended recipient of any message, fax and / or voice call sent using the Service (as applicable);
- the retrieval by any intended recipient of any voicemail using the Service (if applicable); or
- that the Service will enable the location of any given GSM or GPS device to be accurately detected in every case.
- We may, at Our sole discretion, alter or improve the Service We provide to You at any time, provided that any such alteration does not materially affect the nature or detract from the functionality of the Service.
- It may be necessary from time to time for Us to suspend the Service that We provide to You for routine or emergency maintenance and / or repairs and We will, in so far as it is reasonably possible, provide You with a reasonable period of notice prior to any such suspension.
- We may at Our sole discretion suspend Your access to the Service and / or cease to allow any Transactions to be conducted by You if:
- You are in material breach of the Agreement and / or any applicable codes of practice, guidelines, rulings or regulations of any national telecommunications regulatory authority or other competent body or authority (“Regulator”) relating to the Service that may be introduced or made from time to time during the continuation of the Agreement and with which You must comply or to which You have agreed to be bound (“Codes”), including (but not limited to) Telecommunications Code of Practice for the use of mobile phone technology
- You are doing or have done anything unlawful in the course of using or relating to Your use of the Service;
- a Network Operator or a Regulator requires it;
- at any time the number of Transactions that You are conducting exceeds any forecast You have given Us of the number of Transactions that You expected to conduct at that time (“Forecast”) or, in the absence of any applicable Forecast, the number of Transactions conducted by You at any time causes or is likely to cause congestion to any telecommunications network; or
- We are entitled to terminate the Agreement for any reason, in which case We will give You appropriate notice as soon as is reasonably possible.
- Our employees are never allocated to the management of Your account or to the provision of the Service under the Agreement and no relationship of employee and employee can arise.
Freedom of Information
- We acknowledge that certain public bodies are subject to the Freedom of Information Act 1982. If you are a public body then We will assist and co-operate with You (at Your expense) to enable You to comply with any information disclosure requirements.
- We will, at Our sole discretion, and without liability determine whether any of the information requested by You is confidential, commercially sensitive and / or exempt from disclosure under the Freedom of Information Act 1982.
Confidentiality and Data Protection
- We will at all times keep confidential all information acquired as a consequence of the Agreement in respect of You or Your business, except for information already in the public domain or information which We are required to disclose by law, requested by any Regulator or reasonably required by Our professional advisors for the performance of their professional services.
- You will at all times keep confidential all information acquired as a consequence of the Agreement in respect of Us, the Service or any Network Operator, except for information already in the public domain or information which You are required to disclose by law, requested by any Regulator or reasonably required by Your professional advisors for the performance of their professional services.
- We will treat Your End-User Data as confidential and will not disclose it to any third party or use or copy any part of it except for the purposes of making the Service available to You and providing any technical support required. We will make no further use of Your End-User Data without Your specific authorisation.
Customer and Non-Paying customer support
- Unless We otherwise agree in writing, We will provide online and telephone support in respect of the Service from 09:00 to 17:30 EST, Monday to Friday (except for Public Holidays in Victoria), but outside such hours You may log a fault online at any time and We will use reasonable efforts to provide support in respect of the Service.
Customer Charges and Payment
- The provisions of this clause 9 only apply to Customers and do not apply to Users.
- You agree to pay all Charges due to Us in respect of making the Service available to You and Your access to and use of the Service (“Customer Charges”) by the payment method and in accordance with the applicable payment plan and terms agreed between You and Us and detailed in the Signature Page.
- In consideration of Us making the Services available to You, You agree to pay to Us, and We shall invoice You for, the minimum monthly charge as set out on the Signature Page (“Minimum Charge”) each month in accordance with the terms of this clause 9. The Minimum Charge is payable irrespective of whether or not Charges amounting to the Minimum Charge accrue in a month.
- Unless We otherwise agree, payment by You of the Customer Charges:
- will be payable 15 days after the date of invoice if You are paying by Direct Debit, or:
- will be payable within the number of days specified as the credit period on the Signature Page.
- Each time any given Transaction is conducted, You will incur a corresponding Charge. Alternatively, You may wish to pre-purchase Transaction credits for each month of the Agreement or such other period as is agreed between us, in which case We will allocate to You a corresponding number of Transaction credits for that period, 1 SMS message Transaction, for example, costing 1 corresponding unit Charge in pence (subject to any variation thereof) and allowing You to send 1 SMS message using the Service. Each Transaction that You conduct using the Service will therefore reduce the value of the Transaction credits available to You by 1 corresponding unit Charge in pence (subject to any variation thereof).
- Any pre-purchase Transaction credits purchased by You are only valid for the period in respect of which they have been allocated, such period not to exceed one year, and any pre-purchased Transaction credits that are no used before the end of such period will be forfeited. For the avoidance of doubt, any pre-purchased Transaction Credits not used within one year of purchase will be forfeited by You.
- Any Transactions that You conduct in a period over and above Your allocation of pre-purchased Transaction Credits shall be additionally charged by Us at the applicable tariff rate set out in the Signature Page (subject to any variation thereof). Any such additional Customer Charges will be invoiced to You by Us at the end of the month in which they arise.
- Where We have agreed to make the Services available to you on a tariff and you have pre-purchased Transaction credits, each Transaction will reduce the Transaction credits available to You by the highest possible Charge. In the event that the Charge per Outbound SMS reduces during a month in accordance with Our tariff, any overpaid Charges shall be firstly, credited against any invoice for any Charge incurred by You in a period over and above Your allocation pre-purchased Transaction credits raised by Us at the end of the month in which such charges arise, and secondly converted into pre-purchased Transaction credits.
- You shall be solely responsible, by (i) seeking adequate Transaction credit allocation(s), (ii) negotiating and agreeing an appropriate level of credit with Us and (iii) checking Your remaining available Transaction credit level by logging in to your account on Our website at www.esendex.com or contacting Us, for ensuring that You have enough Transaction credits and/or sufficient available credit (as applicable) to meet Your requirements from time to time. We shall not be in any way responsible or liable in the event that You have insufficient Transaction credits and/or sufficient available credit (as applicable) to meet Your requirements, and / or have exceeded Your Transaction credit allocation(s) and/or credit limit, for any period.
- For the avoidance of doubt, a Charge will be incurred for every Transaction conducted by You regardless of whether the Transaction is successfully transmitted and/or received.
- If You do not pay any Customer Charges in accordance with the applicable payment terms, the Charges for any further Services that We make available to You shall, from the date a payment becomes overdue, immediately revert to Our highest advertised price for the duration of the period that any such Customer Charges remain outstanding and overdue. These Charges shall be invoiced by Us, and be payable, at our highest advertised price. As soon as all outstanding and overdue amounts in respect of the Customer Charges have been received by Us in cleared funds, the charge for the provision of any further Services shall be at the prices agreed between You and Us and as set out in the Agreement.
- In addition to the above, We reserve the right to, in Our sole discretion:
- use any pre-payment or deposit that You have provided to Us as full or part payment of any outstanding sum;
- suspend Your access to the Service and / or cease to allow any Transactions to be conducted by You until payment of any outstanding sum is received by Us in full and cleared funds from You; and / or
- without prejudice to any of Our other rights to charge simple interest on the outstanding sum, calculated at the rate prescribed by the Penalty Interest Rates Act (VIC) 1983 applying from time to time to run from the due date for payment until receipt by Us of any outstanding sum in full and cleared funds whether or not after judgment and without prejudice to any of Our other rights or remedies.
- We reserve the right to require payment on account of Customer Charges before making the Service available to You.
- We reserve the right to at any time (whether prior to making the Services available to You, throughout the term of this Agreement or otherwise): (i) undertake credit reference checks on You; and/or (ii) ask You to produce bank, credit and/or other business references in appropriate circumstances.
- In consideration of Us making the Service available to You, You grant to Us a non-exclusive, worldwide and royalty-free licence to use Your trade marks in Our sales and promotional material (excluding press releases).
- Save for as set out in clause 11, neither party shall make use of the other party’s name nor any information acquired through its dealings with the other party for publicity or marketing purposes without the prior written consent of the other party. Without limitation to the foregoing, no press release and / or any blog entry will be made regarding the terms of the Agreement.
Your Liabilities and Obligations
- You warrant that You will not:
- use the Service or permit the Service to be used to send messages, voicemails, faxes and / or voice calls (as applicable) to any end-user for marketing purposes without that end-user’s explicit request for or prior consent to receiving them. If You are sending any message, voicemail, fax and / or voice call (as applicable) for commercial purposes to any of Your end-users , You must give those end-users the right to opt out of receiving any further messages, voicemails, faxes and / or voice calls (as applicable) sent by You for commercial purposes (and You shall promptly process any end user’s election to opt out);
- use the Service or permit the Service to be used to convey messages, voicemails, faxes and / or voice calls (as applicable) to any end user, the frequency and number of which is excessive in Our reasonable opinion;
- use the Service or permit the Service to be used for any improper, fraudulent, immoral or unlawful purpose;
- use the Service or permit the Service to be used for the transmission of any material which is of a defamatory, offensive, abusive, obscene or menacing character or nature;
- use the Service or permit the Service to be used in a manner that infringes the intellectual property rights or any other proprietary rights of any third party; or
- use the Service or permit the Service to be used in a manner that may injure or damage any person or property or cause the quality of the Service to be impaired.
- You will at all times during the continuation of the Agreement:
- send only messages, voicemails, faxes and / or voice calls (as applicable) that comply with all applicable laws, regulations and Codes and that contain nothing which is likely to cause offence in view of the generally prevailing standards of decency and propriety from time to time;
- comply with all reasonable directions and instructions issued by Us from time to time in relation to the Service;
- comply with and observe at all times all applicable laws, regulations and Codes and any directions, recommendations and decisions of any Regulator; and
- not act in any manner likely to bring Us, the Service or any Network Operator into disrepute.
- You will, upon request, provide Us or any Network Operator or Regulator with any information relating to Your use of the Service that the requesting party reasonably requires. You are responsible for ensuring that any information relating to Your end-users, including (but not limited to) Your end-user Data, is accurate and complete.
- You will not state or imply any approval by Us of any particular message, voicemail, fax and / or voice call (as applicable) that You send using the Service or refer to Us in any way without Our prior written approval.
- Where requested by Us, You will promptly provide Us with a representative Forecast of Your Service needs for the requested period, including (but not limited to) all reasonable details required for Us to plan network capacity requirements.
- We may, at Our sole discretion:
- cease to convey, and You will promptly cease to transmit at Our request, any message, voicemail, fax and / or voice call (as applicable); or
- cease to enable, and You will promptly cease to carry out at Our request, any GSM or GPS device location detection (if applicable), which We reasonably consider to be in breach of the Agreement.
- You will not acquire any title or other proprietary right to any intellectual property, including (but not limited to) any patents, know-how, registered or unregistered trademarks, design rights or copyright, relating to the Service, nor will You cause or knowingly permit anything to be done which may in any way damage or endanger any such intellectual property. You will notify Us of any suspected infringement of Our intellectual property of which You become aware and will take all reasonable action as We may direct in relation to that suspected infringement where such is directly and specifically related to the services We provide to You.
- You warrant that you will not:
- modify or create derivative works of the software, programs, and other applications underlying the Service (the “Software”);
- sublicense, lease, rent, assign, distribute, repackage, rebrand, or otherwise transfer or disclose the Software, any portion thereof or any documentation to any third party; or
- cause, assist or permit any third party (including an end-user) to do any of the foregoing. For the avoidance of doubt, the restrictions in this clause 12.8 do not prohibit You from embedding in Your own technology offerings the APIs that We make available to You for purposes of accessing the Service.
- Y ou warrant that You are the sole owner or licensor or all rights in Your End-User Data or You have obtained all necessary rights, licences and consents from all relevant third parties to enable You, Us and Our sub-contractors to use the End-User Data for the purposes of the Agreement.
- You warrant that You will not:
Our Liability to You
- Nothing in the Agreement will in any way exclude or limit either party’s liability for death or personal injury caused by its negligence, for fraudulent misrepresentation or concealment or for breach of data protection obligations herein or for any other liability that cannot be excluded or limited at law.
- As a Non-billable Customer, We are not in any way liable to You for any liabilities, losses, damages, costs and / or expenses incurred or suffered by You in contract, tort, negligence or otherwise under or in connection with the Agreement.
- We will not be in any way liable to You for any liabilities, losses, damages, costs and / or expenses incurred or suffered by You as either a Customer and / or a Non-billable Customer as a result of Your use of the Service, except to the extent that such liabilities, losses, damages, costs and / or expenses directly result from breach of this agreement, Our negligence or wilful misconduct.
- We will not be in any way liable for the content of any messages, voicemails, faxes and / or voice calls (as applicable) sent or transmitted using the Service or for any use of the Service by You as either a Customer or a Non-billable Customer to detect the location of any GSM or GPS device(s), nor will We be in any way liable for any failure to make the Service available to You to the extent that such failure results from a technical or other failure on the part of any Network Operator or any other event which is beyond Our reasonable control.
- Where You are a Customer, except as otherwise expressly provided in the Agreement, either party’s aggregate liability to the other party in contract, tort, negligence or otherwise arising under or in connection with the Agreement shall be limited to five (5) times the total Customer Charges paid by You under the Agreement in the preceding 12-month period or, where You are pre-purchasing Transaction credits, five (5) times the total value of Transaction credits pre-purchased by You under the Agreement (excluding any additional Customer Charges paid) in the preceding 12-month period.
- Subject to any express provision to the contrary in the Agreement, neither You (as either a Customer or a Non-billable Customer) nor We will in any circumstances be liable in contract, tort, negligence or otherwise for any economic loss (including, but not limited to, any loss or profits, business, contracts, revenue, turnover or anticipated savings) or for any indirect or consequential losses, whether or not they were foreseen or foreseeable.
- Each of us acknowledges that neither You (as either a Customer or a Non-billable Customer) nor We have entered into the Agreement on the basis of or in reliance upon any representation (save for any representation made fraudulently), warranty or other term except as otherwise expressly provided in the Agreement and, as such, all conditions, warranties and other terms implied by statute, common law or otherwise are hereby excluded to the greatest extent permitted by law.
- We shall at all times in respect of the subject matter of this Agreement comply with all applicable laws, regulations and rules having equivalent effect. AU
Disclaimer of Warranties
- Notwithstanding anything to the contrary herein, You expressly acknowledge and agree that:
- Your use of the Service is at Your sole risk. The Service is provided on an “as is” and “as available” basis. We and Our licensors expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement;
- We and Our licensors make no warranty that (i) the Service will meet your requirements, (ii) the Service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the Service will be accurate or reliable, (iv) the quality of any information or other material obtained by you through the Service will meet your expectations, or (v) that any errors in the software associated with the Service will be corrected;
- any material downloaded or otherwise obtained through the Service is done at Your own discretion and risk, and You will be solely responsible for any damage to Your computer system or loss of data that results from the download of any such material; and
- no advice or information, whether oral or written, obtained by you from Us or through or from the Service shall create any warranty not expressly stated in this agreement.
- Notwithstanding anything to the contrary herein, You expressly acknowledge and agree that:
Contract Period and Termination
- Unless otherwise set out in the Signature Page and subject to earlier termination in accordance with these Terms and Conditions, the Agreement is for an initial minimum 12- month period (the “Initial Term”). The Initial Term will start on the contract start date set out on the Signature Page (“Contract Start Date”) and shall expire on the expiry of the Initial Term (“End Date”). On the End Date the Agreement will continue automatically unless and until either party gives the other the required period of written notice as set out on the Signature Page (“the Required Notice Period”) or either You or We otherwise terminate the Agreement in accordance with these Terms and Conditions.
- If at any time during the Initial Term You request that We make available any additional component(s) as part of the Service or remove any component(s) from the Service and We agree to such addition or removal, the Initial Term shall restart from the date such addition or removal takes effect and, from that Contract Start Date:
- references in the Agreement to the “Service” shall mean all or any component part(s) of the Service as altered; and
- if you are a Customer the Customer Charges shall be correspondingly altered.
- If at any time You wish to terminate the Agreement, You must either:
- give Us written notice to that effect within the 7-working day period from and including the Contract Start Date set out in the Signature Page, such notice to take effect immediately; or
- give Us no less than the Required Notice Period, such notice to take effect no sooner than the End Date. If You wish to terminate the Agreement with effect from any date preceding such End Date and are unable to do so for cause or any other reason under these Terms and Conditions, if you are a Customer under the Agreement then You must pay Us the Customer Charges due for each month (or part thereof) remaining of the Initial Term post-termination, such Customer Charges to be calculated on the basis of the monthly Customer Charges as set out in the Signature Page (as varied if applicable), and any prepayment of Customer Charges that You have made to Us will not be credited or refunded.
- Either party may also terminate this Agreement with immediate effect by notice to the other party if:
- the other party becomes insolvent, makes any arrangement with or for the benefit of its creditors, goes into compulsory or voluntary liquidation, has a receiver, administrative receiver, liquidator or other similar official appointed over its assets, is subject to an administration or similar order or ceases trading;
- the other party commits a material breach of the Agreement and (where such breach is capable of remedy) fails to remedy the breach within 14 days of a written notice from the party not in breach requiring its remedy; or
- any licence required for Us to operate the Service is revoked, terminated or modified or, in the case of new licence requirements being imposed, the applicable licence:
- is not granted to Us; or
- is granted to Us but in such a way as to prevent Us from continuing to make the Service available or a Network Operator from enabling Us to make the Service available.
- We may terminate the Agreement immediately on giving You 14 days’ written notice in the event that any relevant legislation of regulation is implemented or modified with the effect that it is no longer commercially viable or possible for Us to make the Service available.
- If you are using the Service as a Non-billable Customer under this Agreement You acknowledge that We reserve the right to, at Our absolute discretion, stop providing the Service to You on either a temporary or a permanent basis for any reason whatsoever without any prior notice.
- Termination of the Agreement for any reason does not affect any rights that have accrued to either party under the Agreement up to the date of its termination and those terms and conditions of the Agreement that are by their nature capable of surviving termination will continue in full force and effect following such termination.
- On termination of the Agreement:
- You will immediately cease to use the Service; and
- all monies then owing to Us under or in connection with the Agreement will become immediately due and payable.
- Neither party will be liable for any delay in the performance of or any failure to perform any of its obligations under this Agreement that is caused by any event which is beyond its reasonable control, including, but not limited to, the failure, malfunction or unavailability of necessary telecommunications, data communications and / or computer services, power supply failures or shortages, acts or omissions of third parties (including, but not limited to, Network Operators), acts of government or Regulators or telecommunications network congestion.
- Neither party will assign, transfer or sub-contract either in whole or in part any of its rights or obligations under the Agreement without the other party’s prior written consent (not to be unreasonably withheld or delayed), provided that either company shall be entitled without the other party’s consent to assign, transfer or sub-contract in whole or in part any of its rights or obligations under the Agreement to any company that is, or is a subsidiary of, its ultimate holding company (as defined by the Corporations Act 2001).
- Any notices to be given under the Agreement will be given in writing to the addressee at its address, its fax number or its email address as set out in the Agreement and will be deemed to have been received within 48 hours of posting or within 24 hours of sending if sent by facsimile transmission or email to the correct fax number or email address of the addressee.
- Nothing in the Agreement will be deemed to constitute a partnership or joint venture between the parties or constitute any party the agent of the other party.
- Any failure by either party to enforce any of the terms or conditions of the Agreement at any time will not be a waiver of those terms or conditions or of the right to subsequently enforce those or any other terms and conditions of the Agreement at any time.
- In the event that any of the terms or conditions of the Agreement are held to be invalid or unenforceable, this will not affect the validity or enforceability of all remaining terms and conditions.
- The Agreement constitutes the entire understanding between the parties and supersedes all previous agreements, arrangements, representations and understandings between the parties relating to the subject matter of the Agreement, provided that We may, from time to time:
- make a change to any terms of the Agreement to take account of a change in the law, in which case we will, wherever possible, notify you in advance of any such change;
- make a change to any material term of the Agreement to take account of any commercial or financial grounds outside of Our control (for example a change in the terms of the network providers or the provision of services by such network provides) provide that we shall notify you of any change to any material term of the Agreement and You shall within 30 days of the date of Our notice be entitled to terminate the Agreement; and
- make a change to any term of the Agreement, which does not materially affect the Services by publishing notice of the change on Our website at www.esendex.com and making the revised terms and conditions available on Our website.
- A party who is not a party to the Agreement has no right to enforce or rely on any term or condition of the Agreement.
- The Agreement is governed by and shall be construed in accordance with the laws of Victoria and the parties hereby submit to the exclusive jurisdiction of the Victorian courts.