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1. Risks
Due to the nature of the Short Message Service (SMS), SMSit
cannot be held responsible for risks incurred through the use
of any of the SMSit products or services, as well as all risks
associated with data security, privacy, availability and
reliability of message processing and transmission. Thus, the
customer is fully and exclusively liable for any and all risk
resultant from the use of the said Product (s) or Service(s).
2. Limitation of Liability
All SMSit services, information, products and other content
(including third party information, products and content)
provided by, included in or accessible from the SMSit service
web site, are provided "as is" and are subject to change at any
time without notice to the customer.
In no event shall SMSit be liable for any damages whatsoever,
including but not limited to any direct, indirect, special,
consequential, punitive or incidental damages, or damages for
loss of use, profits, data or other intangibles, or the cost of
procurement of substitute goods and services, arising out of or
related to the use, inability to use, unauthorised use,
performance or non-performance of the SMSit products or
services, even if SMSit has been advised previously of the
possibility of such damages and whether such damages arise in
contract, negligence, at law or otherwise.
3. Access to the Service
SMSit shall use all reasonable endeavors to ensure that the
Services are available on a 24 hour, 7 days a week basis. The
customer is responsible for maintaining all devices and
services necessary to enable access to the relevant SMSit
service and the use of such services.
4. Message Delivery
The customer acknowledges and accepts that the provision of the
relevant SMSit services are enabled through SMSit agreements
and relationships with various GSM Service Providers and their
agreements with Network Operators in various countries and
SMSit is therefore only able to act under the conditions
imposed through such agreements.
The delivery of SMS messages is subject to the availability and
performance of the respective GSM Network Service Provider and
the Roaming Partner's technical systems and network and cannot
be guaranteed by SMSit. SMS messages submitted through the
relevant SMSit sms service will be transferred to the
recipient's mobile terminal within times ranging from a few
seconds to a few minutes depending on the conditions prevalent
at the time of submission. Also, message delivery performance
is subject to the recipient's mobile terminal being switched on
and located within an area that is acceptably covered by the
recipient's telecommunications service provider. Certain
Roaming Partner's prevent their subscribers from receiving SMS
messages, for reasons beyond SMSit's control, and in such cases
the delivery of SMS messages is not possible.
5. Message Validity
SMS messages, submitted from the SMSit service for
transmission, shall have an assigned validity period of 24
hours during which time the GSM Service Provider shall, at
regular intervals, attempt to effect delivery of the SMS
messages unless an alternative validity period is selected by
the client, where available. Should the validity of the message
expire prior to successful delivery, all unsent messages shall
be discarded without guaranteed notice to the customer.
6. Changes to Service Offerings and Content
SMSit reserves the right to modify, enhance, discontinue and
further develop the relevant Product(s) or Service(s) or its
product or service offerings at any time without prior notice.
Customer's Responsibilities and Liability
7. SMS Code of Practice
Customers shall be responsible for familiarizing themselves and
adhering to the SMS Code of Practice at all times. This code
may change from time to time and is available here.
8. Malicious Disruptions and Damages
Should the customer be implicated of malicious disruptions or
damages to any of SMSit product (s) or service(s), the customer
shall be liable for all damages (whether direct or indirect)
and associated costs resultant from such malicious activity.
9. SMS Content
The customer accepts full responsibility for the content of SMS
messages transmitted by means of any of SMSit product(s) or
service(s) and agrees not to submit any SMS messages for
transmission via the service, where the content whereof is
improper, immoral or unlawful or which contains any violent,
offensive, discriminatory, illegal or pornographic material.
The customer must reasonably ensure that the content of SMS
messages does not cause disturbance or harassment to the
recipient thereof.
10. Spamming
SMSit and the respective GSM Network Service Providers are
bound to ensure the delivery of a valued service and will not
tolerate SPAMMING (the sending of unsolicited messages) of SMS
messages by the customer. Therefore the customer is not
permitted to send messages to recipients who have advised that
they do not wish to receive SMS messages of a particular or any
kind. Failure to abide by the provisions of this clause will
result in the suspension of access to the Services, without
recourse to any Service fees paid or due to SMSit and the
customer shall be liable for and hereby indemnifies SMSit
(including its agents, shareholders, employees, officers and
subsidiaries) against any claims, loss or damages caused as a
consequence of the failure by the customer to abide by the
provisions of this spamming clause.
The customer should furthermore be aware that Spamming is
against the regulations laid down by ATIF / ACA (Australian
Telecommunications Industry Forum / Australian Communications
Authority), who in their own right are lawfully entitled to
take action against anyone found guilty of spamming.
11. Identification of the Originator
SMSit and the respective GSM Network Service Providers reserve
the absolute right not to deliver any SMS message unless and
until the identification of the originator thereof, or its
authorised representative, is known and understood.
12. Termination of the Service(s)
At any time during the tenure of this agreement, the customer
acknowledges that SMSit reserves the right to disable, discard
or remove any customer's service, without notice, for any
reason, including and without limitation to, should SMSit in
its reasonable opinion believes that the customer has
contravened or breached any provision of this agreement. SMSit
may also, at its sole discretion, at any time cease to provide
the relevant Service, or any part thereof and to make
modifications and changes to the said relevant Service. The
customer also fully understands, accepts, and further fully
indemnifies SMSit against any claims by the customer or any
third party as a result of such changes to or termination of
Service(s), or part thereof.
13. Billing
13.1. SMS Billing Methodology
The customer agrees to pay the charges, to SMSit or the
customer's service provider as set out in the SMSit application
form.
Should there be a disputed transaction, SMSit shall endeavour
to make the necessary investigations to the best of its
abilities and attempt to rectify the discrepancy, but should
such investigations prove to be inconclusive, the message
transaction logs, as maintained by SMSit and the respective GSM
Network Service Providers shall be deemed to be true and
accurate for accounting purposes.
13.2. Message Delivery
The eventual delivery of SMS messages is largely dependent on
the effective functioning of the recipient's mobile terminal
and the relevant GSM network, systems and infrastructure.
Consequently, SMSit cannot guarantee the delivery of messages
that may be affected by possible network outages and errors on
the part of any GSM network and SMSit shall not refund the
customer for undeliverable messages. SMSit will however make
every effort to ensure that all messages are delivered. The
sender will however be charged for all SMS messages delivered
to the respective GSM Networks.
14. Intellectual Property Rights
The information, media, systems, content, Products and Services
provided by SMSit through the SMSit product range for the
customer's use, including all intellectual property rights
therein, is the sole property of SMSit and the customer shall
at no stage acquire any rights therein or thereto. It is also
to be understood that SMSit web content and SMSit software is
protected by Copyright law. Unauthorised reproduction or
distribution of this software and web content or any portion
thereof, will result in severe civil and criminal penalties,
and will be prosecuted to the full extent of the law.
15. Applicable Law
The laws of Australia govern this contract. The customer fully
acknowledges that any disputes resulting in legal intervention
shall be concluded within the jurisdiction of the Australian
courts and that the applicable laws of Australia shall prevail.
16. Interpretation and Nullification of Clauses
The customer accepts to agree to all aspects of this agreement
and shall comply with all laws, regulations and restrictions
that apply to the customer. SMSit shall be entitled to modify
the terms and conditions of this Policy in writing from time to
time. Any delay in the enforcement of any term of this
agreement shall not be deemed to be a waiver of such right(s).
16.1. Provision of SMS Service by the SMS Provider' where the
SMS Provider is understood to be the subscribed user of the
SMSit service;
16.2 The SMS Provider shall be entitled to provide such SMS
information services as are approved by SMSit and shall at all
times in it's provision of SMS information services adhere to
the SMS Code of Practice found here. In this regard it
is recorded that the SMS Code of Practice is a standard
document that was drafted to govern the provision of SMS type
information services. As such it must read, for the purposes of
this Agreement, in the context of the provision of SMS type
information services, and all references therein to information
services shall be deemed, mutatis mutandis, to be reference to
information services provided pursuant to this Agreement.
16.3 The SMS Provider shall ensure that before the SMS
information services are made available, that such
authorisations, licenses, consents and permissions as may be
relevant and necessary, have been obtained or granted, and
furthermore the SMS Provider shall ensure that the SMS
information services are not unlawful in any manner whatsoever.
16.4 The SMS Provider shall make freely available to the
recipients the cost, if any, and terms and conditions upon
which the SMS information services are provided.
16.5 The SMS Provider shall ensure that in exercising its
rights and meeting its obligations as provided for in this
agreement that it at all times complies with the terms and
conditions of the License, and in particular shall:
16.6 ensure that any information it obtains or receives in
respect of the Recipients is kept confidential and not
disclosed, communicated or made accessible to any third
parties;
16.7 comply with the SMS Code of Practice;
16.8.1 The customer agrees not use the SMS services in the
following way;
16.8.2 The customer shall not re-sell the SMSit services
provided unless agreed to in writing by SMSit.
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