Terms

SMSTech provides its services to you subject to the following terms and conditions. If you visit or conduct electronic transactions in any way at SMSTech, you accept and agree to abide by these terms and conditions.

Interpretation

The following terms are used throughout this document:

“User, client or you”

a person who uses and/or accesses computer Software and/or material or Service via the SMSTech site or our client’s sites;

“Software”

Including but not limited to any images or files incorporated in or generated by the software or data accompanying such software;

“Material”

Including but not limited to: text, submissions, images, audio and/or video in whole or in part;

“Content”

Included but not limited to SMS message content software and material;

“Service(s)”

means the SMSTech message delivery via SMS service made possible with the use of SMSTech proprietary software;
Through SMSTech (the “Services”) SMSTech provides web site operators and other individuals a variety of tools and resources to collect visitor mobile numbers and to create, launch, and manage online SMS campaigns. This service may not be used for the sending of unsolicited SMS (sometimes called “spam”). See the Spam Act 2003 (“Federal Spam Act”). The following are the terms and conditions for use of the Services. By checking the “I have read the SMSTech Terms of Use statement. I accept these terms and conditions” box on the Sign Up page or after logging in for the first time, you accept these terms and conditions.

1.Services and Support

1.1 The Services are provided subject to this Agreement, as it may be amended by SMSTech, and any guidelines, rules or operating policies that SMSTech may establish and post from time to time (the “Agreement”). By posting updated versions of the Agreement at the SMSTech web site, or otherwise providing notice to you, SMSTech may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Services at its sole discretion. All such changes shall become effective upon posting of the revised Agreement on the Service.

1.2 The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, please do not use the Services.

1.3 The Services enable corporate web sites, small business web sites, and community sites to sign up web site visitors, collect and retrieve visitor sign-up data, and develop and execute SMS communications with visitors and other targeted prospects.

1.4 Both the number of SMS messages sent and the number of characters of data transferred are metered by SMSTech. Normal SMSTech accounts allow you to send an unlimited number of SMS messages. The total character data transfer of each message can be no more than 628 chars.

1.5 All message delivery prices are subject to change at any time. All fees paid to SMSTech for SMSTech are non-refundable, unless an account is terminated by SMSTech for a reason other than violation of the Federal Spam Act. Payment for Services will be made by a valid credit card accepted by SMSTech, unless other payment arrangements have been made between you and an authorized SMSTech representative. You hereby authorize SMSTech to charge your credit card for such amounts whenever you send a campaign to more than 5 recipients. Fees are payable in US dollars or Australian dollars. If SMSTech is for any reason unable to effect automatic payment via your credit card, you will be notified via e-mail. All prices are subject to change and you are responsible for reviewing the Pricing Schedule from time to time and remaining aware of the Fees charged by SMSTech.

1.6 You must complete the registration form on the Sign Up page in order to use the Services. You will provide true, accurate, current, and complete information about yourself as requested in the registration form. As part of the registration process, you will identify an email address and password for your SMSTech account. You are responsible for maintaining the security of your account, passwords, and files, and for all uses of your account and of the Services in your name. SMSTech reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.

2.Restrictions and Responsibilities

2.1 This is an Agreement for Services, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services (“Software”); remove any proprietary notices or labels from the Services or any Software, modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software. The Services shall be used for your internal business (which includes civic or charitable) purposes only and you shall not use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party. If you are using the Services in any country in the European Community, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.

2.2 You acknowledge and agree that the Services and the SMSTech company names and logos and all related product and service names, design marks and slogans, are the property of SMSTech or its affiliates or suppliers (collectively, the “Marks”). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of SMSTech. Your use of the Services confers no title or ownership in the Service, the Software or the Marks and is not a sale of any rights in the Service, the Software or the Marks. All ownership rights remain in SMSTech or its third party suppliers, as the case may be.

2.3 You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). You agree you will not access or otherwise use third party contact lists in connection with preparing or distributing unsolicited messages to any third party. You hereby agree to indemnify and hold harmless SMSTech against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. Although SMSTech has no obligation to monitor the content provided by you or your use of the Services, SMSTech may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.

2.4 The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates Australian federal, state or other laws that may apply in your local area is prohibited. This may include material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights.

2.5 In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to SMSTech. SMSTech may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Service, or communicate separately with you.

2.6 SMSTech will not use any of your subscriber lists or any other customer information for any other purposes than those intended with the service. Your customer information will not be shared with any other parties. In addition, SMSTech will not use your customer information for the purpose of sending unsolicited commercial messages.

2.7 You will adopt and maintain the Privacy Policy, which may be modified by SMSTech from time to time.

2.8 You may not use SMSTech to distribute illegal contests, pyramid schemes, chain letters, or multi-level marketing campaigns.

2.9 You may not use SMSTech to send message campaigns that link to or display nudity, obscene content, gambling related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that we deem inappropriate.

3.Termination

3.1 You may terminate this Agreement at any time by sending an e-mail message to sales@smstech.com.au. Correspondence must include your first name, last name, and SMSTech username. No refunds will be issued if you terminate this agreement.

3.2 SMSTech may terminate this Agreement or the Services at any time with or without cause, and with or without notice. SMSTech shall have no liability to you or any third party because of such termination. If SMSTech terminates this agreement because you violated the Federal Spam Act, no refund will be issued.

3.3 SMSTech reserves the right to terminate this Agreement if you do not use the Services for a period of at least 12 consecutive months. If SMSTech terminates the Agreement pursuant to this clause, no refunds will be given.

3.4 SMSTech may delete any of your archived data within 30 days after the date of termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.

4.Warranty Disclaimer; Remedies

USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. SMSTech DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND SMSTech DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Your sole and exclusive remedy for any failure or nonperformance of the Services shall be for SMSTech to use commercially reasonable efforts to adjust or repair the Services.

5.Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL SMSTech OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “SMSTech “) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF SMSTech SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, SMSTech IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF SMSTech TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

6.SMS Service

6.1 SMSTech provides an SMS service that sends messages to mobile phones using established carriers and aggregation companies. The provision of the SMS service is subject to the following Terms of Service.

6.2 You acknowledge that SMSTech delivers SMS messages via major telecommunications companies and mobile network providers and can therefore only influence the delivery transmission of SMS messages within the technical constraints imposed by the above mentioned providers. SMS messages submitted via the Internet will be transferred to the addressed mobile recipients in due course, provided that the recipient’s phone is switched on and located in an area covered by his subscribed mobile network provider. You acknowledge that, depending on the recipient’s mobile provider service, it may not be possible to transmit the SMS message to the recipient successfully. SMSTech neither claims nor guarantees either availability or performance of this service. While SMSTech makes every effort to deliver the message promptly, SMSTech accepts no liability for transmission delays or message failures.

6.3 SMSTech debits transmitted SMS messages according to its transmission logs. These logs are deemed correct and valid even if the customer has objected to the correctness of the accounting records, except if SMSTech’s investigations have produced evidence of technical problem or error. The SMS pricing scheme is published on the SMSTech web site. Because SMSTech cannot guarantee delivery of the SMS messages to the recipients due to possible errors on the part of the mobile network providers, SMSTech will not refund undeliverable SMS messages to you.

6.4 You agree that all activities, which can be traced to your username and password, are deemed as having been performed by yourself and are legally binding to you.

6.5 You acknowledge that SMSTech undertakes the following data archiving processes:

(a) Outbound and inbound messaging activity records are available for a period of 6 months following which they are permanently archived on a monthly basis.

(b) Billing and ledger records are available for a period of 6 months following which they are permanently archived. Historical invoices are available on request.

(c) Contact lists that are not used, or added to, for more than 400 days are archived. Archived contact lists are available for download and re-use via the web portal.

7.Export of Services or Technical Data

You may not remove or export from Australia or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of Australia or any other applicable country.

8.Miscellaneous

8.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

8.2 SMSTech and you agree that the Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.

8.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind SMSTech in any respect whatsoever.

8.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.

8.5 The Agreement shall be governed by the laws of the State of NSW Australia without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Sydney, New South Wales, Australia.

9.System Requirements

It is understood that in order to use SMSTech, a Windows PC with Internet Explorer 6.0, Safari 3.0 and Firefox 2.0 or higher must be used. Additionally, a stable connection to the Internet is recommended. SMSTech may work in a limited manner on other platforms, but there is no guarantee of functionality at any time. Additionally, SMSTech may work in a limited manner on a non-Internet Explorer web browser (such as Netscape Navigator), but there is no guarantee of full functionality on any web browsers.

10.Compliance rules for sending messages.

All SMSTech customers must follow the rules of the Federal Spam Act when sending messages through the service. Accordingly, we require the following of messages sent through the SMSTech system:

_ All messages must contain Opt Out functionality. The responsibility to ensure there is Opt Out copy and functionality on each message rests solely with you.

_ All messages must contain some form of traceable identification information, such as company name, contact number, email address or return mobile number.

_ These guidelines will help ensure that SMSTech maintains its reputation and white-listing status with a number of major carriers and whitelisting programs. If at any time your campaign is flagged as SPAM by a carriers subscribers, SMSTech reserves the right to cancel your account without notice.

11.Message and Permission Practices

11.1 Every message sent in connection with the Services must contain an “Opt Out” mechanism that allows subscribers to remove themselves from your contact list. Each such mechanism, must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to SMSTech. You acknowledge and agree that you will include and not remove, disable or attempt to remove or disable this mechanism.

11.2 You agree to import, access or otherwise use only permission-based contact lists (note: purchased lists may not be used; please contact SMSTech if you have questions).

11.3 You cannot send messages to distribution lists, newsgroups, or spam message addresses.

11.4 You are responsible for monitoring, correcting, processing Opt Out requests within 10 days, and updating the mobile numbers to which messages are sent through your SMSTech account.

11.5 Messages that you send through the Service may generate abuse complaints from recipients. You are responsible for ensuring that your message campaigns do not generate a number of abuse complaints in excess of industry norms. SMSTech, in its sole discretion, shall determine whether your level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement.

11.6 SMSTech, at its own discretion, may immediately disable your access without refund to the Services if SMSTech believes in its sole discretion that you have violated any of the message and permission practices listed above, or the Federal Spam Act.