Terms Of Use

Part A – Customer Terms


Your Contract with Us

1. About this document

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.

2. Your Customer Contract

3. The Term of Your Contract

Provision of Our Services

4. The Services

5. Exclusive or Preferred Supplier

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).

6. Periodic Entitlements

7. Prepaid Plans

For a Prepaid Plan:

8. Automatic Top Ups for Prepaid Plans

9. Compliance with Policies

10. Operational Directions

11. Carrier or Carriage Service Provider

You promise that you are not a Carrier or a Carriage Service Provider.

12. Provider Requirements – General

13. Use of Service by others

14. Payment for third party services

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.

15. Using a Service

16. Telephone numbers – General

17. Telephone numbers – Messaging Services

18. Voluntary number porting

19. Maintenance and faults

20. Your cooperation

Confidentiality, Intellectual Property and Privacy

21. Confidentiality

22. Intellectual Property

23. Privacy

Credit Management

24. Credit management (1): Guarantees and security

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.

25. Credit management (2): Credit checks

Prices, Billing and Payment Terms

26. Charges & payment: Prices

27. Calculation of number of SMS

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:

28. Calculation of the size of an MMS

Charges for an MMS Service will be based on the size and number of MMS you send, calculated in accordance with the following rules:

29. When we can bill

30. Extra Charges for bills and information

31. Late billing

32. When you must pay

33. How you can Pay

34. Late payment

If a Bill is not paid on time:

35. Billing disputes

36. GST

Warranties and Indemnities

37. ACL Guarantees

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.

38. Service Level Agreements

Subject to clause 37, if a Service or a Plan includes a Service Level Agreement (SLA):

39. Exclusion of Implied Terms and Warranties

You agree and acknowledge that:

40. Your liability to us – General

41. Your liability to us – requests for information or evidence

42. Our liability to you

43. Limitation on Liability

Termination and Suspension

44. Termination by us

We may, by written notice to you, terminate your Contract:

45. Termination by you

You may terminate your Contract:

46. Consequences of Termination

If your Contract ends:

47. Suspension of Service

We may suspend Service at any time, without liability and immediately by reasonable notice to you (except in the case of an emergency), if:

48. Charges during a period of suspension

If we suspend Service:

General

49. General power to vary your Contract

Subject to clause 50,

50. Customer Right to terminate on Receipt of Notice of Variation

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.

51. Acknowledgments

You acknowledge that:

52. Assignment

53. Governing law

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.

54. Entire agreement

Your Contract is the entire agreement between you and us regarding its subject matter, and you acknowledge that:

55. Delays

56. No waiver

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.

57. Commercial Electronic Messaging

Interpretation and Dictionary

58. Interpreting your Contract

The expression: means:
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
Confidential Information in relation to each party (for the purposes of this definition, the Discloser):
  • a) all information relating to or used by the Discloser or its Related Body Corporate, including know-how, trade secrets, ideas, marketing strategies and operational information;
  • b) all information concerning the business affairs (including products, services, customers and suppliers) or property of the Discloser or its Related Body Corporate, including any business, property or transaction in which the Discloser or its Related Body Corporate may be or may have been concerned or interested;
  • c) any other information disclosed by or on behalf of the Discloser or its Related Body Corporate which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential;
  • d) the terms and the actual existence of your Contract; and
  • e) including any such information made available to the Discloser or its Related Body Corporate by any third party, but excluding any information that:
    • i) is publicly known or becomes publicly known other than by breach of this Contract or any other obligation of confidentiality;
    • ii) is disclosed to the other party without restriction by a third party and without any breach of confidentiality by the third party; or
    • iii) is developed independently by the other party without reliance on any of the Discloser’s Confidential Information
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:
  • (a) copyright, neighbouring rights, moral rights and the protection of databases, circuit layouts, topographies and designs;
  • (b) methods, inventions, patents, utility models, trade secrets, confidential information, technical and product information; and
  • (c) trade-marks, business and company names and get ups,
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
Restricted Content Content that:
  • a) is likely to be, having regard to the contemporary attitudes of Australian society, offensive to reasonable adults;
  • b) is likely to be, having regard to Law and the contemporary attitudes of Australian society, unsuitable for minors;
  • c) promotes, incites or instructs in matters of crime;
  • d) describes, incites or promotes unlawful sexual activity;
  • e) promotes or incites violence or hatred against any person or group, or incites racial hatred;
  • f) causes unnecessary alarm, distress or panic or is menacing in character;
  • g) contains a computer worm or virus;
  • h) breaches any Law;
  • i) is in contravention of any privacy rules;
  • j) infringes the confidentiality, copyright or other intellectual property rights or any other proprietary interest of any person;
  • k) is false, misleading or deceptive, or likely to mislead or deceive;
  • l) provides financial advice to any person;
  • m) is out of date, having regard to information generally available, subsequently published, or released, or made available; or
  • n) is for the purpose of providing any warning or notification about a serious risk to the safety of persons or property (for example, emergency 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)
 

Part B – Design Services Service Terms


60. About this Part

This Part applies when we supply you with Design Services.

61. Quote and Specifications

Prior to providing any Design Services we will agree:

62. Deposit for Services

We may require you to pay a deposit for any Design Services that you have asked us to provide to you.

63. Approval of Design Services

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.

64. Customer Warranty

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.

65. Payment

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.

 

Part C – Reseller Terms


66. About this Part

This Part C applies if your Application Form states that you are a Reseller.

67. Reseller Rights

We grant you the non-exclusive right to market and resell the Services to your customers.

68. Reseller Independence

Your business is an independent business. Accordingly:

69. Provision of Services to Others

You:

70. 90 Day Notice of Termination

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.