By signing the SMS Pack Request, you enter into an agreement with FastTrack Pty Ltd (“we”, “our” or “us”) to use SMS Central Australia Pty Ltd (“SMS Central”) message Service (“Service”) provided through the URL www.smscentral.com.au on the following terms and conditions:
1. Agreement
1.1 We have entered into a reseller agreement with SMS Central that enables our Software to interface with the Service and for you to have access to the Service under the terms and conditions of this Agreement.
1.2 In order for you to use SMS Central you must be at least 18 years of age, agree to the Terms in full and provide true, complete and current information.
2. What we will do
2.1 We will provide you with passwords and usernames enabling access to the Service from our Software using your Parent Account and or Billing Nodes, within three (3) working days of receipt of the Total Purchase Price.
2.2 We will provide you with statements to your Usage Address showing your Message usage itemised per Billing Node and Parent Account for each Usage Period.
2.3 We will provide you with an alert to your Alert Address when you have the Alert Amount of your last purchase of Messages available in your Parent Account.
2.4 Subject to clause 8, we will request that SMS Central allow you to send Messages via the Service using the usernames and passwords provided by us pursuant to clause 2.1 whilst you have Messages available in your Parent Account.
3. What you must do
3.1 Be responsible for information.
(a) You are responsible for the content of any Messages and to ensure that any Messages transmitted on your behalf are not for an illegal purpose or violate any person’s right of privacy or publicity or contravene any privacy laws and/or regulations set out by the Privacy Act 1998 (Cth)(as amended or replaced), including the Australian Privacy Principles;
(b) You must clearly identify who is sending the message;
(c) You will provide an active “opt-out” procedure for the Mobile Subscriber;
(d) You will only send messages to Customers if you have received all necessary consents (including express consent where necessary under the Australian Privacy Principles and the Spam Act 2003) to send the message to the Mobile Subscriber;
(e) You are responsible for keeping Your username and password secure and protected from unauthorised use at all times. Your passwords are always encrypted for your security and are not accessible to SMS Central or its employees.
(f) You agree that:
(i) SMS Central is entitled to treat any access by, or use of Your usernames and passwords as access by you, or access with Your authority;
(ii) SMS Central has no obligation to verify any access, or use of the Services, by you, or the use of your usernames and passwords;
(iii) You agree to be held wholly responsible for any attempt to access SMS Central systems or Network without our consent or disrupt or damage any SMS Central systems through your account;
(iv) You must notify us immediately if you become aware of any access to your account by any unauthorised persons.
3.2 Purchase Message Packs
(a) You must pay the Total Purchase Price by the Payment Method;
(b) You may purchase further Message Packs by completing a further SMS Pack Request.
4. What you must not do
4.1 You will under no circumstances send Messages;
(a) that are defamatory, offensive, abusive, indecent, sexually explicit, menacing or harassing or cause damage or injury to any person or property or contravene any applicable law, regulation, code or standard including the Spam Act 2003 (Cth) (as amended or replaced);
(b) constitute a violation or an infringement or misuse of any duty or obligation in contract or otherwise, to a third party;
(c) infringe any intellectual property rights owned or licensed by SMS Central or a third party;
(d) exceed Burst Traffic without previously notifying SMS Central reasonably in advance;
(e) expose either party to the risk of any legal or administrative action including prosecution under any law;
(f) affect the availability of the Services or cause interference to the normal operation of a telecommunications network equipment;
(g) result in the release or distribution of a “virus”, “Trojan horse” or harmful computer code;
(h) represent (by act or omission) that SMS Central, its network suppliers or any other person associated with SMS Central has created, endorsed, reviewed, or has been in any way involved in the production of the Content of the Message;
(i) that are misleading or deceptive;
4.2 Access to the Service is provided for your use only and you will not allow any third party access without our written consent.
5. Sending messages
5.1 You acknowledge that Messages will only be sent if you have pre-paid Messages in your Parent Account at the time you attempt to send the Message via our Software.
5.2 Maximum Size Limit per Message
(a) Messages sent via the Gateway can have a maximum of 700 Characters.
(b) Messages sent in excess of the maximum character limit will be truncated.
5.3 2-way Messaging Intelligent Source Routing
(a) You accept that in certain circumstances the mobile-originated Message may not be resolved to the correct mobile-terminated Message.
(b) You accept that a Dedicated Routing Pool per Billing Node should be requested to avoid the risk of Message replies being delivered outside a Billing Node.
5.4 I accept that Message delivery may be delayed under conditions of high traffic on the Service and/or the mobile telephone network.
5.5 I accept that neither SMS Central nor FastTrack are responsible for delivery of the Message from the mobile phone network to the nominated mobile phone. This is the responsibility of the mobile telephone service provider.
5.6 You acknowledge that SMS Central:
(a) has no control over the Content which passes through the use of the Service and We do not examine the use of such content or the nature or the source of the Content;
(b) is solely responsible for ensuring that Messages can be passed to the Network Operators via the SMS Central System;
6. Your data
6.1 In transmitting your Message from the Service to the mobile telephone network, you accept that SMS Central may either review or disclose the content of my Messages: if required to do so by law, or
6.2 if SMS Central, in good faith, believes that such preservation or disclosure is reasonably necessary to:
(a) comply with legal process;
(b) enforce the terms and conditions of its agreement with us;
(c) respond to claims that the content of the Message violates the rights of third parties; or
(d) protect the rights, property or personal safety of SMS Central, its users, or public.
6.2 SMS Central will use its reasonable endeavours to secure the privacy or security of Messages submitted, posted to or transmitted through the Service.
7. Termination of this agreement
7.1 This Agreement may be terminated immediately by us without notice to you if:
(a) you breach clause 4;
(b) you commit a breach of this Agreement and that breach is not remedied on the receipt of 7 days written notice of such breach;
(c) SMS Central terminates our access to the Service for any reason whatsoever; or
(d) you become bankrupt or insolvent.
7.2 Either party may terminate this Agreement by giving the other party 30 days written notice.
7.3 Upon the termination of this Agreement:
(a) you will no longer have access to the Service; and
(b) all Fees paid to us by you will remain our property;
(c) your obligations and our rights pursuant to clauses 3, 8.2, 10 and 11 of this Agreement will remain in force.
8. Warranties and representations
8.1 You agree that nothing in this Agreement shall be construed as a representation, warranty or guarantee by us and to the extent permitted by law you agree that the Service is provided on an “as is” basis and that neither SMS Central nor us make any warranties or representations of any kind.
8.2 You warrant that you have not relied on any representation made by us that has not been stated expressly in this Agreement.
8.3 You acknowledge and agree that the delivery of the Messages may be affected by a range of factors beyond our control. We will use all means practical to ensure the Services are provided but we do not make any warranties or give any guarantees in respect fo Services provided by third parties including a Network Operator.
9. Limitation of liablility
9.1 We will be under no liability to you in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of any goods or services supplied pursuant to this Agreement or in respect of a failure or omission on our part to comply with our obligations under this Agreement.
9.2 To the extent permitted by law, if we become liable to you in any manner whatsoever for breach of warranty or in relation to the supply of the Service then our liability will be limited solely to the amounts paid by you for access to the Service or the cost of its resupply, whichever we determine at our sole discretion.
10. Indemnity
You indemnify us in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment suffered or incurred by us including, but not limited to, economic loss and all legal costs and disbursements arising from any action, claim proceeding or suit brought by you or a third party (whether in contract, tort, negligence, statute or otherwise) arising out of or in respect of this Agreement.
11. Confidential Information
(a) You agree you will keep confidential any Confidential Information.
(b) Subclause (b) will not apply to any disclosure made by you of the Confidential Information:
(i) which was made to its legal or financial advisors; or
(ii) where that Confidential Information was already known to the public.
12. Miscellaneous
12.1 Assignment
(a) We may assign our rights and liabilities arising under this Agreement.
(b) You are not entitled to assign or purport to assign any of your rights or liabilities under this Agreement without our prior written consent (which consent may not be unreasonably
withheld).
12.2 Any notice sent to a party under this Agreement must be sent in one of the following methods:
(a) by hand;
(b) by pre-paid post;
(c) by facsimile (on a successful transmission).
12.3 Governing law
This Agreement is governed by, and must be construed in accordance with, the laws of the State of Victoria and the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria.
12.4 GST
(a) In this clause, the terms, “consideration”, “GST”, “taxable supply”, “tax invoice” and “value” retain the same meaning as in A New Tax System (Goods and Services) Tax Act 1999.
(b) If we make a taxable supply in connection with this Agreement for a consideration, which represents its value, we will provide you with a tax invoice and you must also pay the amount
of any GST payable in respect of the taxable supply at the same time as providing the consideration.
13. Definitions and Interpretation
13.1 Interpretation
In this Agreement, unless the contrary intention appears:
(a) words importing the singular will import the plural and vice versa;
(b) any headings have been provided for ease of reference only and will not be used in the interpretation of this Agreement;
(c) a reference to this Agreement or these terms and conditions includes the SMS Pack Request, which either accompanies or refers to this Agreement.
13.2 Definitions
The following words have these meanings in this Agreement unless the contrary intention appears:
Alert Address – The e-mail address listed as “Alert Email” on the SMS Configuration or as advised by you in writing from time to time.
Alert Amount – The percentage indicated as “Balance Alert” on the SMS Configuration or as advised by you in writing.
Billing Node – The proprietary method of tracking Message usage for a defined group of your users within your Parent Account.
Burst Traffic – Means traffic of more than 300,000 messages during any 60 minute interval or any other level of traffic which, due to its quantity, can be reasonably expected to interfere with the System.
Characters – All letters, numbers, spaces, symbols and punctuation marks
Confidential Information – Any document or information which has been provided by us to you and which is of a confidential nature and includes, without limitation:
a. any information about us;
b. any computer software which is owned or created by us;
c. the subject or details of any discussions or correspondence between you and us; and
d. any business processes, marketing plans, or financial data which relates to us in any way.
Dedicated Routing Pool – A SMS Central dedicated intelligent source routing pool for Messages replied to via the Service
Service – Means the SMS and MMS Service provided by the URL www.smscentral.com.au. We may also refer to the Service as the “Services” or “Website”.
Messages – SMS and MMS service messages sent via the Service.
Message Pack – A pack of prepaid Messages as indicated on the SMS Pack Request Form.
Parent Account – Your account detailing your total Message usage.
Payment Method – The “Payment Option” selected by you on the SMS Pack Request.
Software – Any software applications licensed by us to you which include a capability to send SMS Messages.
SMS Pack Request – The document or documents accompanying or referring to this Agreement titled “SMS Pack Request” which you have signed and which indicates your acceptance of
the terms and conditions of this Agreement.
SMS Configuration – The document or documents accompanying or referring to this Agreement titled “SMS Configuration” which you have signed and which indicates your acceptance of
the terms and conditions of this Agreement.
Total Purchase Price – The amount listed as the “Total Purchase” on the SMS Pack Request.
Usage Address – The e-mail address listed as the “Usage Email” on the SMS Configuration or as advised by you in writing from time to time.
Usage Period – The period of time indicated as “Usage Report” on the SMS Configuration or as advised by you in writing from time to time.