The Customer Terms apply to all Services provided by us to you by agreement between us or, failing agreement, under section 479 of the Telecommunications Act.
If your Application Form states:
Within 14 days of receipt of a written request, you will provide to us a statutory declaration, executed by a duly authorised officer, attesting to your compliance with clause 5(a) or clause 5(b).
For a Prepaid Plan:
You promise that you are not a Carrier or a Carriage Service Provider.
Using a Service may depend on you having goods or services supplied by third parties. For instance, in order to use an email-to-SMS Service, you must have an internet connection. You are solely responsible for the costs of all third party goods and services you acquire.
We may, at any time, make supply of Service conditional on you providing and/or maintaining security and/or third party guarantees to our reasonable satisfaction.
Information point: The SMS system allows a maximum message size of 160 characters. If a user sends a longer message, the system splits it to two or more separate SMS’s that may be reassembled on delivery so that they appear to be a single message (or, on some handsets, may be delivered as a series of separate SMS). When a longer message is split in this way, the components are no more than 153 characters long, because seven characters are used to facilitate re-joining on delivery. As a result, a longer message will result in more than one SMS being transmitted, and charges apply accordingly, as described in this clause.
Charges for an SMS Service will be based on the number of SMS you send, calculated in accordance with the following rules:
Charges for an MMS Service will be based on the size and number of MMS you send, calculated in accordance with the following rules:
If a Bill is not paid on time:
If we supply you with services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption and the services cost no more than $40,000, ACL Guarantees always apply but our liability for failure to comply with an ACL Guarantee is limited to supplying the services again or paying the cost of having the services supplied again.
Subject to clause 37, if a Service or a Plan includes a Service Level Agreement (SLA):
You agree and acknowledge that:
except to the extent that we are negligent or caused or contributed to the loss or damage.
except to the extent that you are negligent or caused or contributed to the loss or damage.
We may, by written notice to you, terminate your Contract:
You may terminate your Contract:
If your Contract ends:
We may suspend Service at any time, without liability and immediately by reasonable notice to you (except in the case of an emergency), if:
If we suspend Service:
Subject to clause 50,
If you do not accept the variation set out in a notice from us pursuant to clause 49 you must notify us in writing within 14 days. If you fail to do so, you will be deemed to have accepted the variation. If you notify us that you do not agree to the variation, then we must discuss the proposed variation in good faith. If no agreement on the variation is achieved within 10 Business Days either party may terminate this Customer Contract by providing 30 days’ written notice to the other party and no Early Termination Fee will be payable.
You acknowledge that:
Your Contract is governed by and must be construed in accordance with the laws of Victoria. You and we submit to the exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia.
Your Contract is the entire agreement between you and us regarding its subject matter, and you acknowledge that:
A failure, delay, relaxation or indulgence by us in exercising any power or right conferred under your Contract (such as a right that we have due to your breach of your Contract) does not operate as a waiver of the power or right.
|Acceptable Use Policy||a policy so titled and issued under clause 9|
|Account||the Customer’s entitlement to Messaging Services subject to the Customer Contract and, where relevant, includes any Service features, associated usernames or passwords|
|ACL Guarantee||a guarantee in the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010.|
|Anti-Spam Policy||a policy so titled and issued under clause 9|
|Application or Application Form||your application to us to access Messaging Services, in a form we specify from time to time which may also contain features, entitlements, Charges and special conditions in connection with a Service|
|Automatic Direct Debit||a periodic payment that is automatically deducted by us from your nominated financial institution account|
|Bill||an invoice from us which advises you of the total of each Charge that is due for payment|
|Billing Period||see clause 29(a)|
|Carriage Service||as defined in the Telecommunications Act|
|Carrier||as defined in the Telecommunications Act but also includes an entity that operates a telecommunications network outside Australia|
|Charges||fees and/or charges applicable under your Customer Contract|
|Claim||any claim, demand, action, proceeding or legal process (including by way of set off, cross-claim or counterclaim)|
|Commercial Electronic Message||as defined in the Spam Act 2003|
in relation to each party (for the purposes of this definition, the Discloser):
|Content||the content of a Message you send or receive|
|Contract||same as Customer Contract|
|Customer||the customer named in the Application Form|
|Customer Contract||see clause 2|
|Customer Terms||the terms and conditions set out in Part A of this document|
|Data Retention Laws||the Telecommunications (Interception and Access) Act 1979 (Cth) and any other Laws which require data, including metadata, to be retained or dealt with in a particular way|
|Dedicated Number||a digital mobile service number provided by us to you under this Contract for exclusive use by you as part of your Messaging Service|
|Design Services||the design and creation of text and/or images used in an SMS and/or MMS and includes, without limitation, concepts, ideas, innovation and development work to further enhance the Messaging Services. Design Services may also include the management of the delivery or execution of a process or campaign on behalf of the Customer|
|Direct Debit||a payment that is deducted by us from your nominated financial institution account, including an Automatic Direct Debit|
|Early Termination Fee||is calculated as follows – (45% of the average amount we have invoiced you from the commencement of the Contract until the date of termination) multiplied by (the number of remaining months (or any part thereof) of the Minimum Term)|
|End User||a person who receives a Message you send using your Account, and a person who sends you a Message via your Account|
|Equipment||a handset, modem, router or other hardware|
|Extract||deduct an amount by Direct Debit|
|Facilities||systems, software, computers, equipment and network infrastructure of all kinds used to provide or in connection with the provision of a Service|
|GST||Goods and Services Tax|
|GST Act||A New Tax System (Goods and Services Tax) Act 1999|
|Insolvency Event||includes an event where a receiver or receiver and manager is appointed over a party’s property or assets, an administrator, liquidator or provisional liquidator is appointed to the party, the party enters into any arrangement with its creditors, the party becomes unable to pay its debts when they are due, the party is wound up or becomes bankrupt, or any other analogous event or circumstance occurs under the laws of any jurisdiction|
|Intellectual Property Rights||
Includes all right, title and interest wherever subsisting (now or in the future) throughout the world, and whether registered or not, in and to:
and includes the right to apply for registration, grant or other issuance of the rights described in paragraphs (a), (b) and (c) above and any other rights generally falling within this term
|Intervening Event||an event beyond our reasonable control which interferes with and prevents us from providing the Services to you. Such events include any act or omission of our Providers, any disruption to our or our Providers’ networks, infrastructure and equipment, failure of any electrical power supply, changes to any laws or regulations, industrial action and acts of God including but not limited to lightning strikes, earthquakes, floods or other natural disaster|
|Law||laws, Acts of Parliament, regulations, mandatory standards and industry codes and including the requirements or directions of any Regulator|
|Listed Carriage Service||as defined in the Telecommunications Act (but covers most public voice and data communications services)|
|Message||an SMS, MMS or OTT Message|
|Message Credits||a credit equal to your Monthly Access Fee that may be applied to your Messaging Fees for that month, provided that any unused balance in each month (a) is not carried over to any later month and (b) is not refundable|
|Messaging Fee||a Charge per Message sent or received on your Account|
|Messaging Service||a Telecommunications Service for sending and/or receiving and/or processing Messages|
|Minimum Term||the period specified in your Plan or Application Form, or if your Plan or Application Form does not so specify, means 12 months|
|MMS||a message including text and/or multimedia content carried by the multimedia messaging service developed by the Open Mobile Alliance, whether it originates or terminates on a mobile phone or another kind of computer|
|MMS Service||a Messaging Service for MMS|
|Monthly Access Fee||the charge identified as such in a Plan or Application Form|
|Network||see clause 4(c)|
|Numbering Plan||the Telecommunications Numbering Plan issued under the Telecommunications Act|
|Operational Directions||Any direction we give you in relation to the Services or your Account in accordance with clause 10|
|OTT Message||is an instant message that uses the internet for transmission|
|Our Facilities||Facilities we own and/or operate|
|Personal Information||as defined in the Privacy Act from time to time|
|Periodic Entitlements||see clause 6|
|Plan||a particular set of features, entitlements, term of contract, Charges and special conditions in connection with a Service. Many of our Services are available under different Plans, each with its own features, entitlements, contract period, Charges and special conditions. The terms of your Plan form part of your Customer Contract|
|Prepaid Entitlement||an entitlement to send a message based on an amount prepaid by the Customer|
|Prepaid Plan||a Plan where you must pay in full for a Service before you use it|
|Price List||see clause 26(b)|
|Privacy Act||the Privacy Act 1988 (Cth) and the Australian Privacy Principles contained in that Act, as amended from time to time;|
|Provider||a third party that, under a contract with us, provides (a) access to Facilities they manage or maintain or (b) content or (c) a service – that we resupply to you|
|Provider Facilities||Facilities that are managed or maintained by a Provider|
|Provider Requirements||see clause 12|
|Regulator||includes the Australian Communications and Media Authority, the Australian Competition and Consumer Commission and any other relevant government or statutory body or authority and the Telecommunications Industry Ombudsman|
|Related Body Corporate||as defined in the Corporations Act 2001|
|Reseller||a Customer whose Application Form states that they are appointed as a reseller of our Services|
|Services||a service (including any Equipment) which we provide to you, including but not limited to (a) a carriage service of a kind specified in the Telecommunications Regulations 2001; or (b) ancillary goods or service of a kind specified in the Telecommunications Regulations 2001|
|Service Level Agreement||a written service quality assurance titled as such, as updated by us from time to time|
|Shared Number||a digital mobile service number that we associate with multiple Accounts|
|SLA||a Service Level Agreement|
|SMS||a text message carried by the short message service that was originally developed for use on the GSM mobile telephone network, whether it originates or terminates on a mobile phone or another kind of computer|
|SMS Service||a Messaging Service for SMS|
|Spam||an unsolicited commercial electronic message within the meaning of the Spam Act|
|Spam Act||the Spam Act 2003 (Australia)|
|Spam Laws||The Spam Act, the Unsolicited Electronic Messages Act 2007 (New Zealand), the CAN-SPAM Act (USA) and any other similar legislation, guidelines and codes of practice in relation to Spam|
|Staff||any person, whether your employee, contractor or otherwise, who uses your Account|
|Standard Rate Messages||Messages that are billed by Carriers at standard rates, and in particular are not premium rate Messages, which are billed by Carriers at premium rates|
|Supplier||the entity described as such in the Application Form and/or your Plan and/or on the website on which these Customer Terms are published|
|Telecommunications Act||Telecommunications Act 1997|
|Telecommunications Service||a Listed Carriage Service or any service we supply in connection with that service|
|Unrestricted Content||Content that is not Restricted Content|
|Use-by Date||see clause 7(b)|
This Part applies when we supply you with Design Services.
Prior to providing any Design Services we will agree:
We may require you to pay a deposit for any Design Services that you have asked us to provide to you.
Where we undertake Design Services or any form of professional services, you must will not unreasonably withhold signoff and approval of the completed project, where we are able to reasonably demonstrate that we have met the agreed specifications or requirements.
You warrant that all Content provided to us in relation to the provision of the Design Services is duly licensed or authorised and not in breach of any law, third party rights or trademarks. You further accept without limitation that any fees, royalties or other payments for use of Content are to be paid by you.
Upon completion of the Design Services you agree to pay the total cost of the Design Services within 14 days of receipt of an invoice for such services.
This Part C applies if your Application Form states that you are a Reseller.
We grant you the non-exclusive right to market and resell the Services to your customers.
Your business is an independent business. Accordingly:
If you are a Reseller, then the reference to “30 days” in clause 45(a) is deleted and replaced with “90 days”. For the avoidance of doubt this means that you may terminate your Customer Contract at any time (except during the period of the Minimum Term) on 90 days’ written notice to us.