SMS Messaging Service Agreement

The use of the Services (as defined below) which are provided by SMS Messaging PTY LTD - ACN 152 545 518 ("SMS Messaging") is governed by the terms and conditions set out below ("this Agreement"). Without limiting the way in which you may be bound by this Agreement:
by signing a document agreeing to be bound by this Agreement;
by clicking a button on your computer screen including your acceptance of this Agreement; or
by proceeding to use the Services;
you (the "Client") will be deemed to have accepted and will be bound by the terms and conditions of this Agreement.

  1. ENGAGEMENT OF SMS Messaging.
    1. The Client engages SMS Messaging to provide one or more any of the following Services in accordance with this Agreement:
      1. SMS Broadcast Services;
      2. MMS Broadcast Services;
      3. Email Broadcast Services;
      4. SMS Competition Management;
      5. Two-Way SMS;
      6. SMS Voting;
      7. Premium Rate SMS Services;
      8. API Integration; and
      9. any other goods and services in addition to the above which are separately agreed between the parties in writing ("Additional Services").
    2. The actual Services to be provided by SMS Messaging to the Client will be agreed by the parties in the Service Order.
    3. SMS Messaging may withdraw any of the Services described in clause 1.1 at any time in its sole discretion with or without notice to the Client.

  2. ACCOUNT SETUP
    1. The Client agrees to create an Account with SMS Messaging in order to use the Services.
    2. The Account will be created using SMS Messaging's online sign up process, or any other method specified by SMS Messaging from time to time.
    3. The Account will permit the Client to login to SMS Messaging's Portal to manage their Account and other details involving their relationship with SMS Messaging.
    4. The Client agrees to keep confidential and secure any username or password used to access the Account.
    5. The Client warrants that all information provided to SMS Messaging in the setup of the Account is true and correct in every detail, and the client agrees to notify SMS Messaging at any time of any change of the Account details.
    6. The Client agrees that it will only use the Account and the Portal for the purposes of using the agreed Services and for no other purpose.

  3. SMS, MMS AND EMAIL BROADCAST SERVICES
      1. Where indicated on the Service Order, SMS Messaging will provide SMS Broadcast Services and/or MMS Broadcast Services and/or Email Broadcast Services to the Client.
      2. SMS Broadcast Services involves the distribution by SMS Messaging of a Message via SMS to a specified list of mobile telephone numbers provided by the Client.
      3. MMS Broadcast Services involves the distribution by SMS Messaging of a Message via MMS to a specified list of mobile telephone numbers provided by the Client.
      4. Email Broadcast Services involves the distribution by SMS Messaging of a Message via email to a specified list of email addresses provided by the Client.

  4. SMS COMPETITION MANAGEMENT AND TWO-WAY SMS
    1. SMS Competition Management
      1. Where indicated on the Service Order, SMS Messaging will provide the Client with SMS Competition Management.
      2. SMS Competition Management will involve:
        1. The provision of a telephone number by which Customers may enter a Competition being held by the Client. Such entry will be performed by Customers sending their entry to the telephone number via SMS.
        2. The receipt by SMS Messaging of Competition entries to the provided number from Customers and the reporting of those entries to the Client.
        3. If so stated on the Service Order, SMS Messaging will assist the Client in determining winners of the Competition in accordance with criteria specified by the Client. Otherwise, the Client will be responsible for determining which of the Customer entries are winning entries.
        4. The billing of Customers (or their telecommunications carriers) for entering the Competition via SMS.
        5. Where specified on the Service Order, the payment to the Client of an agreed portion of the amounts paid to SMS Messaging by the Customer or their telecommunications carrier to submit a Competition entry via SMS. Such payment will be made in accordance with Clause 8.2.
      3. The Customer will not use SMS Competition Management in respect of a Competition which:
        1. is Offensive; or
        2. violates any legislation in either the State in which the Customers registered office is located, the State of NSW, where SMS Messaging's registered office is located, or any Federal legislation including but not limited to the Trade Practices Act and the Telecommunications Act.
      4. The Customer will ensure that each Competition complies with all Applicable Laws and that the Customer has all necessary Regulatory Approvals to conduct the Competition.
    2. SMS Voting
      1. Where indicated on the Service Order, SMS Messaging will provide the Client with SMS Voting.
      2. SMS Voting will involve the provision of the following services:
        1. the receipt of SMS Messages from Customers whereby Customers specify their vote on a particular topic, issue, event, person or competition (but not an entry into the competition);
        2. the collection of all votes placed by Customers and the provision of reports to the Client;
        3. the determination of the winner of each vote in accordance with criteria specified by the Client;
        4. the billing of Customers (or their telecommunications carriers) for placing votes via SMS; and
        5. where specified on the Service Order, the payment to the Client of an agreed portion of the amounts paid to SMS Messaging by the Customer or their telecommunications carrier to submit a vote via SMS. Such payment will be made in accordance with Clause 8.2.
    3. Two-Way SMS
      1. Where indicated on the Service Order, SMS Messaging will provide the Client with Two-Way SMS.
      2. Two-Way SMS will involve the provision of the following services:
        1. the sending of Messages to Customers on behalf of the Client;
        2. the receipt of Messages from Customers on behalf of the Client;
        3. where required by the Client, providing automated replies to Customer Messages;
        4. the billing of Customers (or their telecommunications carriers) for using Two-Way SMS; and
        5. where specified on the Service Order, the payment to the Client of an agreed portion of the amounts paid to SMS Messaging by the Customer or their telecommunications carrier to participate in Two-Way SMS. Such payment will be made in accordance with Clause 8.2.

  5. PREMIUM RATE SMS SERVICES
    1. Provision of the Service
      1. Where indicated on the Service Order, SMS Messaging will provide the Customer with Premium Rate SMS Services.
      2. Premium Rate SMS Services will involve the provision of the following services by SMS Messaging:
        1. the processing of orders placed by Customers for Premium Content (using SMS or other means);
        2. the receipt of payments on behalf of the Client made by Customers for Premium Content; and
        3. the delivery by SMS Messaging of Premium Content on behalf of the Client to Customers.
    2. Collection of Billings
      SMS Messaging will receive payments from Customers for Premium Rate SMS Services. Payments will be received from the Customer or its telecommunications carrier. An agreed portion of those payments will then be paid to the Client in accordance with Clause 8.2.
    3. Obligations of the Client
      The Client will ensure that its use of the Premium Rate SMS Services and supply of any Premium Content is not:
      1. Offensive; or
      2. violates any legislation in either the State in which the Customers registered office is located, the State of NSW, where SMS Messaging's registered office is located, or any Federal legislation including but not limited to the Trade Practices Act and the Telecommunications Act.

  6. API INTERFACE
    1. Provision of the Service
      1. Where indicated on the Service Order, SMS Messaging will provide an API Interface (Application Programming Interface) to the Customer.
      2. The provision of an API Interface to the Customer involves SMS Messaging providing the Customer with an API which enables the Customer, through its own software, to make use of any of the following Services:
        1. SMS Broadcast Services;
        2. MMS Broadcast Services;
        3. Email Broadcast Services;
        4. Two-Way SMS;
        5. SMS Voting;
        6. SMS Competition Management; and
        7. Premium Rate SMS Services.
      3. Unless separately agreed in writing by the Customer, the Customer will be responsible for making modifications to its software which are required in order to use the API Interface.
    2. Licence rights
      1. For the purposes of using the API Interface, SMS Messaging grants the Customer a non-exclusive, non-transferable licence to access and use the API Interface. This licence will terminate on the earlier of the termination of this Agreement or the termination of the Customer's use of the API Interface. This licence will also be subject to any separate licence agreement provided by SMS Messaging in relation to the use of the API Interface.
      2. The API Interface must only be accessed and used in accordance with technical instructions specified by SMS Messaging from time to time. Should any action by the Customer be detrimental to the stability of the system, SMS Messaging reserves the right at it's sole discretion to block any and all communication to the API.

  7. GENERAL TERMS THAT APPLY TO ALL SERVICES
    1. Use of the Services
      The Client will interact with and use the Services in accordance with all technical instructions for such use as communicated and/or published by SMS Messaging from time to time.
    2. Provision of information
      The Client will provide SMS Messaging with all information which it reasonably requests in relation to the provision of the Services. The Client acknowledges that a failure to provide such information may affect SMS Messaging's ability to perform the Services.
    3. Sending of Messages
      1. If the Service Order specifies dates and times when a Message will be sent to Customers then SMS Messaging will use reasonable endeavours to send the Message on those dates and times. SMS Messaging makes no warranties, explicit or implied about being able to deliver messages at specifically requested times and dates. If no such dates or times are specified on the Service Order then the Message will be sent at such times as determined by SMS Messaging in its sole discretion.
      2. The Client acknowledges that SMS Messaging will not be liable or responsible for failing to send a Message on the particular dates and times where such failure arises from:
        1. Act of God, or Force Majure;
        2. a failure of the Customer to fulfil its obligations under this Agreement; or
        3. SMS Messaging scheduling the Message to be sent with other Messages which it is sending on behalf of other clients for reasons of convenience or to take advantage of cheaper communication rates.
      3. The Client acknowledges that once a Message leaves SMS Messaging's computer network SMS Messaging is not liable or responsible for the failure of the Message to reach a Customer nor for the time that it reaches the Customer.
    4. Format of a message
      Each Message sent by the Client to a Customer using any of the Services must:
      1. comply with any technical requirements or limitations specified by SMS Messaging from time to time;
      2. comply with any Applicable Laws; and
      3. not contain content which is Offensive.
    5. Regulatory obligations
      1. The Client must:
        1. comply with all Applicable Laws in its use of the Services; and
        2. obtain all Regulatory Approvals which are necessary for it to use the Services.
      2. The Customer acknowledges that SMS Messaging is not responsible for obtaining any required Regulatory Approvals for the Client to use the Services.
    6. Consent of the Customer
      The Client warrants and represents that it has the consent of each Customer to receive a Message from the Client which is sent via the Services and that any messages are sent in accordance with the cth. Spam Act (2003).
    7. Other obligations of the Client
      The Client:
      1. agrees that it will not use the Services for any illegal or fraudulent purpose;
      2. warrants that it will not, by engaging SMS Messaging to provide the Services, place SMS Messaging in breach of any law or obligation owing to a third party;
      3. agrees that it will not undertake any act or cause any omission which will bring SMS Messaging, its brand or its other customers and clients into disrepute;
      4. agrees that it will not use the Services in a manner that may lead to the suspension of the Services under Clause 9.1; and
      5. agrees it will undertake all tasks reasonably requested of it by SMS Messaging which are necessary to enable SMS Messaging to provide the Services.

  8. PAYMENTS
    1. Payment of Fees to SMS Messaging
      1. The Client agrees to pay SMS Messaging the following fees and charges ("Fees"):
        1. SMS Messaging's fees and charges which SMS Messaging advises the Client will apply from time to time in relation to the provision of the Services;
        2. any fees and charges of third parties which SMS Messaging incurs on behalf of the Client in relation to the provision of the Services;
        3. any fees and charges levied by the Telecommunications Industry Ombudsman or other Government Body in relation to the Services; and
        4. any other amounts which the Client is obligated to pay to SMS Messaging pursuant to this Agreement.
      2. The amount of the Fees payable by the Client will be calculated and determined by SMS Messaging. In the absence of any manifest error, SMS Messaging's calculation of the Fees will be conclusive and final.
      3. All prices are quoted inclusive of GST.
      4. The Fees (less any amount set off under Clause 8.4) will be payable:
        1. on any date specified by SMS Messaging for payment or otherwise within 7 days of any invoice of SMS Messaging requesting payment; and
        2. using the method(s) of payment prescribed by SMS Messaging.
      5. Where requested by SMS Messaging, the Fees (or any part thereof) will be payable in advance of the Services being provided.
      6. Any pre-paid credit balance will be available for draw down by the client for a period of 12 months from the date the deposited funds are reflected in their account. All pre-paid credits unless extended by way of mutual agreement will expire after the 12 month period and be non-redeemable.
      7. Pre-paid credits are non-refundable in all circumstances.
    2. Revenue share of Premium Rate SMS Services, SMS Competition Management, Two-Way SMS and SMS Voting
      1. Where indicated on the Service Order, SMS Messaging will, in accordance with Clause 8.4, pay to the Client a portion of the amounts paid to SMS Messaging by a Customer or their telecommunications carrier in respect of the following Services used by the Customer:
        1. the submission of a Competition entry via SMS;
        2. the submission of a vote via SMS Voting;
        3. the purchase of Premium Content via Premium Rate SMS Services; or
        4. participating in Two-Way SMS.
      2. The portion payable to the Client will be specified on the Service Order or as separately agreed in writing between the parties. The Client's portion will only be paid out of payments actually received by SMS Messaging.
      3. For the purposes of this Clause, in calculating the amounts paid to SMS Messaging by the Customer, such amounts will be exclusive of:
        1. Taxes and charges levied in respect of such amounts received by SMS Messaging;
        2. refunds and charge backs; and
        3. any portion of such amounts which fail to be received by SMS Messaging.
    3. SMS Messaging not liable for failure to collect
      The Client agrees that:
      1. SMS Messaging is not liable to the Client for any failure of a Customer (or their telecommunications carrier or other third party) to pay SMS Messaging or the Client in respect of any of the Services; and
      2. SMS Messaging is not under any duty or obligation to pursue any debt owing to the Client by a Customer, telecommunications carrier or other third party.
    4. Set off of payments
      1. SMS Messaging may first deduct its Fees from any amounts which it must pay to the Client under cClause 8.2.
      2. If any amounts remain owing to the Client after SMS Messaging deducts its Fees under Clause 8.4(a), then those amounts will be paid by SMS Messaging either (as determined by SMS Messaging in its sole discretion):
        1. on a monthly basis within 21 days following the end of the relevant calendar month; or
        2. within 14 days of SMS Messaging's receipt of payment from the relevant Customers (to which the Client's payment relates) or their telecommunications carrier.

  9. SUSPENSION OF THE SERVICES
    1. Without limiting SMS Messaging’s other rights arising under this Agreement, SMS Messaging may suspend the Client’s use of the Services at any time, with or without notice to the Client if:
      1. SMS Messaging considers that the Client has breached any of its obligations to SMS Messaging under this Agreement;
      2. the Client is using its Account or the Services for illegal means or in a manner which SMS Messaging in its sole discretion considers Offensive or against Applicable Laws; or
      3. in SMS Messaging’s sole and absolute opinion, the provision of the Services to the Client is resulting in an unreasonable load on SMS Messaging’s servers or SMS Messaging’s other services.
    2. The Client agrees:
      1. SMS Messaging may suspend the Services where permitted under Clause 9.1 at any time;
      2. SMS Messaging’s suspension of the Services may, in SMS Messaging’s sole discretion, apply to only some of the Services and/or for a fixed or indefinite period of time; and
      3. SMS Messaging may in its sole discretion reactivate the Services for the Client at any time following their suspension.

  10. PRIVACY
    1. SMS Messaging may collect personal information of Customers including their name, contact details and payment details (including, without limitation, credit card details) ("Customer Information"). SMS Messaging will pass on such information (other than payment information) to the Client provided that the Client has complied with Applicable Laws in relation to the collection of such information.
    2. The Client agrees that it will only use the Customer Information for the purposes of this Agreement and for the purposes of interacting with Customers in relation to use of the Services. The client if applicable warrants to be bound by the provisions on the cth. Privacy Act (2001).

  11. RELATIONSHIP OF THE PARTIES
    SMS Messaging is the independent service provider and contractor of the Client and is not the partner, agent, joint venturer, or employee of the Client. Neither party has the power to bind the other in relation to any obligation owing to a third party.

  12. TERM AND TEMINATION
    1. This Agreement will commence on the date that it is entered into by the parties and will terminate 12 months thereafter ("Initial Term").
    2. At the conclusion of the Initial Term, this Agreement will automatically renew for successive terms of 12 months each (each a "Renewal Term") unless terminated by a party prior to the conclusion of the Initial Term or Renewal Term (as the case may be). Such termination may only occur by the party providing the other party written notice of its intention to terminate this Agreement and such notice is given at least 30 days prior to the conclusion of the Initial Term or Renewal Term (as the case may be).
    3. SMS Messaging may terminate this Agreement at any time for any reason whatsoever on the provision of no less than 24 hours advance written notice to the Client.
    4. This Agreement may be terminated by a party immediately on written notice to the other party if:
      1. the other party is in default or breach of this Agreement; and
      2. the party has provided the defaulting party with 7 days written notice of the default or breach and where the breach or default is capable of rectification, the defaulting party fails to rectify the breach or default within the period of the notice.
    5. Upon the termination of this Agreement:
      1. SMS Messaging will within 7 days following termination, withdraw the use of the Services from the Client; and
      2. the Client will pay SMS Messaging all Fees due and payable until the date of termination and SMS Messaging will pay any amounts it owes the Client in accordance with Clause 8.4.
    6. Clauses 8, 10, 11, 12.5, 13, 14, 15 and 16 will survive the termination of this Agreement.

  13. LIMITATION OF LIABILITY AND IMPLIED TERMS
    1. The Client acknowledges that SMS Messaging has made no warranties that the Services will be error free.
    2. The Client acknowledges that SMS Messaging has not made and will not make any express or implied warranties in relation to the Services or any other goods or services provided by SMS Messaging under this Agreement, other than those warranties expressly contained in this Agreement. Subject to Clauses 13.5 and 13.6, any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded.
    3. Subject to Clauses 13.5 and 13.6, the Client agrees that SMS Messaging will not be liable in respect of any claim by the Client (whether contractual, tortious, statutory or otherwise) for any special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the Services or the provision of any other goods or services under this Agreement and whether as a result of any breach or default, by SMS Messaging.
    4. The maximum liability of SMS Messaging under this Agreement for any and all breaches of this Agreement will be capped at and will not exceed the amount of the Fees paid for the Services by the Client.
    5. If the Trade Practices Act 1974 (Cth) applies to this Agreement and permits the limitation of liability for breach of warranty implied by statute, the liability of SMS Messaging is limited, at the option of SMS Messaging, to:
      1. in the case of goods, any one or more of the following:
        1. the replacement of the goods or the supply of equivalent goods;
        2. the repair of the goods;
        3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
        4. the payment of the cost of having the goods repaired; and
      2. in the case of services:
        1. the supplying of the services again; or
        2. the payment of the cost of having the services supplied again.
    6. Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of SMS Messaging will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting the Client’s statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by statute.

  14. CLIENT INDEMNITY
    The Client indemnifies SMS Messaging, its agents, officers and employees ("Indemnified") against any loss, cost, expense or damage (including legal costs on a full indemnity basis) which the Indemnified suffer or incur as a direct or indirect result of and breach of this Agreement by the Client.

  15. INTELLECTUAL PROPERTY
    1. The Client acknowledges that SMS Messaging is the owner of all Intellectual Property Rights which subsist in the Services or in the Works. The Client acknowledges that it has no Intellectual Property Rights in the Services or in any Works.
    2. Apart from the extent permissible under the Copyright Act 1968 (Cth), the Client may not copy or reproduce the Services or the Works or disassemble, modify or reverse engineer the Services or the Works.
    3. Nothing in Clause 15.1 is intended to transfer ownership to SMS Messaging of any Client Works which the Client or a third party were the owner of at the time of their supply to SMS Messaging. The Client warrants that it has the necessary rights in the Client Works to permit SMS Messaging to incorporate the Client Works into the Services. The Client hereby grants SMS Messaging a worldwide, royalty free, non-exclusive licence to incorporate and publish the Client Works as part of the Services.

  16. CONFIDENTIALITY
    1. Each party will keep confidential the Confidential Information of the other party and will only use that Confidential Information for the purposes of this Agreement.
    2. A party may disclose or use Confidential Information of the other party:
      1. where the Confidential Information used or disclosed is in the public domain (other than through a breach of this Agreement);
      2. where the disclosure is required by law;
      3. where the disclosure is made to the other party's employees or contractors solely for the purposes of this Agreement and only where such employees or contractors are under an obligation of confidentiality on terms no less restrictive than this Clause 16; or
      4. where the Confidential Information is disclosed to the party's legal or professional advisors solely for the purposes of seeking advice and only where such advisors are under an obligation of confidentiality on terms no less restrictive than this Clause 16.

  17. DEFINITIONS AND INTERPRETATION
    1. In this Agreement, the following terms will have the following meanings, unless the context otherwise requires:

      2. Account

      means an online account with SMS Messaging

      Act of God

      means a circumstance, act or event beyond the reasonable control of SMS Messaging and which prevents SMS Messaging from performing its obligations under this Agreement including any of the following acts, circumstances or events:

      1. fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;
      2. denial of service attacks, telecommunications failure, hardware failure or the failure of software or a service provided by a third party to function in accordance with its specifications;
      3. a significant demand is placed on SMS Messaging's services which is above the usual level of demand and which results in a failure of SMS Messaging's software and hardware to function correctly;
      4. the failure of any third party (including without limitation, any telecommunications carrier or any bank or other financial organisation) to fulfil any obligations to SMS Messaging; or
      5. any other circumstances or event similar to the above which are beyond the reasonable control of SMS Messaging

      Additional Services

      has the meaning given in Clause 1.1(i)

      Amendment Date

      has the meaning given in Clause 18.1

      API Interface

      means the services so described in Clause 6

      Applicable Laws

      means any statute, law, order, rule, regulation or industry code which relates to contacting Recipients or which relates to the Client's use of the Services including:

      1. Spam Act 2003 (Cth);
      2. Telecommunications Act 1997 (Cth);
      3. Privacy Act 1998 (Cth);
      4. Telecommunications Service Provider (Mobile Premium Services) Determination 2005;
      5. TISSC Code of Practice available at www.190complaints.com.au;
      6. Trade Practices Act 1974 (Cth); and
      7. any other law relating to telecommunications, privacy or spam

      Client

      means the person who engages SMS Messaging to provide the Services and/or is identified in this Agreement as the "Client"

      Client Works

      means any works, item or thing supplied by the Client to SMS Messaging for incorporation into the Services

      Competition

      means a competition hosted or held by the Client on its own behalf or on behalf of third parties

      Confidential Information

      means all information of a confidential or sensitive nature in relation to SMS Messaging or the Client, including, without limitation, information relating to the Services and their underlying processes and technology and information relating to the business of SMS Messaging

      Customer

      means:

      1. a person who receives a Message from the Client via the Services. Such Message may be received by the person personally or into the email account or mobile device;
      2. a person who sends a Message to SMS Messaging in relation to their use of the Services;
      3. any purchaser of Premium Content; or
      4. any person who enters a Competition via the Services

      Customer Information

      has the meaning given in Clause 10.1

      SMS Messaging

      means SMS Messaging PTY LTD - Australian Company Number 152 545 518

      Email Broadcast Services

      means the services so described in Clause 3

      Fees

      has the meaning given in Clause 8.1(a)

      Government Body

      means any federal, state or municipal government body, government department, branch of government and any other body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature. For the avoidance of doubt, the Australian Communications Media Authority and the Telecommunications Ombudsman are "Government Bodies"

      Indemnified

      has the meaning given in Clause 14

      Initial Term

      has the meaning given in Clause 12.1

      Intellectual Property Rights

      means all intellectual property rights of any type whatsoever throughout the world including all rights which subsist in copyright, patent rights, trademark rights, designs and plant breeder rights, whether or not such rights are registered or able to be registered

      Message

      means an SMS, MMS or email message or content sent by the Client to a third party via the Services

      MMS

      means the communications protocol known as multimedia messaging service

      MMS Broadcast Services

      means the services so described in Clause 3

      Offensive

      means content, materials, Messages or a communication which is offensive, immoral, improper, fraudulent, defamatory, harasses another person, against good taste, discriminatory, indecent, obscene, pornographic, menacing, illegal, against Applicable Laws or otherwise deemed as "Offensive" by SMS Messaging

      Portal

      means SMS Messaging's online portal with which Clients can access their Accounts and view information provided by SMS Messaging

      Premium Content

      means content which is delivered by the Client to a Customer via SMS or MMS and which the Client designates as premium content. Premium content may include multimedia content and ringtones

      Premium Rate SMS Services

      means the services so described in Clause 5

      Regulatory Approvals

      means any approval, permit, consent or licence required by the Client from a Government Body or by law for the Client's use of the Services

      Renewal Term

      has the meaning given in Clause 12.2

      Reseller

      means a reseller of the Services as appointed by SMS Messaging

      Service Order

      means the Client's order for the Services which sets out the particular Services which the Client requires

      Services

      means the services provided by SMS Messaging which are described in Clause 1.1

      SMS

      means the communications protocol known as short message service

      SMS Broadcast Services

      means the services so described in Clause 3

      SMS Competition Management

      means the services so described in Clause 4.1(b)

      SMS Voting

      means the services so described in Clause 4.2

      Taxes

      means any applicable duties, sales taxes, GST, VAT or other taxes which may be levied in respect of a transaction contemplated by this Agreement

      Two-Way SMS

      means the services so described in Clause 4.3

      Works

      means any deliverable, item or thing embodied as a result of or by the Services and includes, without limitation, any software, content, data, Customer Information or other information displayed to or used by the Client or a Customer in their use of the Services
    2. In the interpretation of this Agreement, unless the contrary intention appears:
      1. a reference to this Agreement means a reference to an agreement between SMS Messaging and the Client on the terms and conditions of this document and includes an amendment or supplement to, or replacement or novation of this Agreement;
      2. the words "includes" or "including" mean "includes without limitation" or "including without limitation";
      3. a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa;
      4. the singular includes the plural and vice versa;
      5. a reference to any gender includes a reference to all other genders;
      6. a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
      7. an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;
      8. where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and
      9. headings are inserted for convenience only and do not affect the interpretation of this Agreement.

  18. MISCELLANEOUS
    1. SMS Messaging may amend the terms and conditions of this Agreement at any time. Such amendments will take effect from the date of their notification to the Client ("Amendment Date"). The Client agrees that without limiting the ways in which it may be bound by such amendments, it will be deemed to have agreed to such amendments by making use of or accessing the Services after the Amendment Date.
    2. Unless otherwise requested in writing by the Client, SMS Messaging may use the Client’s corporate identity (if applicable) as part of promoting the Services and SMS Messaging's other software in the market place.
    3. Any notice given under this Agreement must be in writing and must be signed by the party or its agent giving the notice. A notice is taken to be received:
      1. in the case of a notice delivered by hand, when so delivered;
      2. in the case of a notice sent by prepaid post, on the third day after the date of posting;
      3. in the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the despatching facsimile machine which confirms that the facsimile has been successfully sent; or
      4. in the case of a notice sent by email, upon the receipt by the sender of a confirmation from the recipient or the recipient's email server that the email has been received by the recipient.
    4. This Agreement supersedes all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of this Agreement and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of this Agreement.
    5. A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.
    6. If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.
    7. SMS Messaging may assign its rights and novate or transfer obligations which arise under this Agreement. The Client must not assign, novate or otherwise transfer its rights or obligations under this Agreement without the prior written consent of SMS Messaging (which may be withheld).
    8. Each provision of this Agreement capable of having effect after termination and each representation and warranty made in this Agreement will survive the execution, delivery and termination of this Agreement and the performance of all obligations under this Agreement and will not merge on termination.
    9. The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.
    10. This agreement is governed by, and must be construed in accordance with, the laws of the State of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia and their Courts of Appeal.