Terms and Conditions
The following terms and conditions comprise the Agreement between SMS Fusion (hereinafter referred to as “Company”) and the Users of its products and services (hereinafter referred to as “Users”), discussed below.
If you do not accept the terms and conditions of this Agreement, please exit this website and cease using the Services immediately.
1. The Services
1.1 The Services may only be availed of by persons who are at least 18 years of age, with the juridical capacity to execute legally binding contracts. Persons who fail to qualify under this provision, are expressly prohibited from availing of the Services.
1.2 Through the utilization of the Company’s software, Users are allowed to collect mobile numbers and to create, launch, and manage online SMS campaigns (hereinafter collectively referred to as the “Services”). Accordingly, Users are allowed to send an unlimited number of SMS messages from the Company’s servers.
1.9 The Company undertakes to ensure that all SMS messages sent through its servers comply with global SMS standards.
The Company reserves the right to amend the terms of this Agreement and to discontinue any or all aspects of the Services defined herein. The said amendments will be undertaken at the sole discretion of the Company and will become effective upon their publication in the Company’s websites. Users are advised to regularly review the Terms of Service in order to apprise themselves of any amendments to the same. The Company undertakes to post the date of the last amendment of these terms, in its websites.
3.1 Users must use a valid credit card in paying for the Services. Users consent to the automatic charges made to their credit cards upon the availment of the said Services.
3.2 Users are advised that all SMS delivery prices are subject to change at any time, at the Company’s discretion. Users are further advised to regularly review the pricing schedule in order to apprise themselves of any changes made in the delivery prices.
3,3 Users agree to the forfeiture of pre-paid balances for Services which they have not availed of for a period of 12 months. For the purpose of this provision, the said forfeiture will be based on information found in the Company’s records.
4. Obligations and Limitations of Users
4.1 Users are required to register their personal information, before accessing the Services. The said personal information includes without limitation their mobile numbers, usernames and passwords. The Company reserves the right to deny any User access to its websites and services and to cancel a User’s account when it deems appropriate.
4.2 Users are without any right to own or operate software under this Agreement, except to the extent necessary for the availment of Services. Users are prohibited from performing the following acts:
a. Directly or indirectly decompiling, disassembling, performing reverse engineering, or attempting to discover the source code, object code, underlying structure, ideas or algorithms involved in any Service, software, documentation or any other data related to the same;
b. Removing any proprietary notice or labels from the Services or any other Software belonging to the Company;
c. Reproducing or copying the said Software or Service or any part thereof;
d. Translating or creating derivative works based on the Services or any Software;
e. Copying, distributing, pledging, assigning or otherwise transferring or encumbering any rights to the Services of any Software.
Users are further prohibited from using the Services outside the scope of this Agreement without the consent of the Company.
4.3. Users warrant, that their availment of the Services complies with the conditions of this Agreement and all laws and policies applicable thereto. Users further exempt the Company from any liability arising from loss or damage caused by the said availment. Notwithstanding the foregoing, the Company reserves the right to review and remove any content which it deems to be violative of this Agreement.
4.4 Users may only avail of the Services pursuant to lawful purposes. The transmission or solicitation of any material which contravenes Australian Laws or Users’ national laws is prohibited. This provision applies to material that may be considered obscene, threatening, libelous, or violative of a third party’s rights.
4.5 Users are prohibited from availing of the Services for illegal purposes and for promoting or distributing illicit, or obscene materials.
4.7 Users are advised that they are responsible for monitoring, correcting, processing, and unsubscribing from the Company’s requests within 5 days, from receipt of the same. Users are also responsible for updating their mobile numbers from which messages are sent to their Company account.
5. Limitation of Liability from External Sources
The Company shall not be liable for any loss or damage which is proximately caused by materials, software or websites which do not belong to the Company. Neither shall the Company be responsible for any loss or damage caused by materials, software or websites that are not within its direct control.
6. Self-Protection Clause
The Company reserves the right to remove any material from Users’ accounts which it deems inappropriate or hazardous to Users or its properties. The Company further reserves the right to cancel the said accounts which produced the said inappropriate or hazardous materials , at its discretion.
7. Provisions relating to Users’ Customers
Users are hereby authorized to offer the Services to their customers (hereinafter referred to as “Customers”) under the following conditions:
7.1 Both Users and Customers must comply with the provisions of this Agreement. The Company reserves the right to deny access to services, for any violations committed by Users and their Customers.
7.2 Customers may avail of the Services without any additional fees charged by the Company. The availment of Services by Customers shall form part of the standard fee paid by Users to the Company for the availment of Services.
7.3 Users must enter into a binding contractual relationship with their Customers, under terms that are no less onerous than those contained in this Agreement.
7.5 Users are solely liable for any loss or damage incurred by their Customers from the availment of the Services. The Company reserves the right to collect from Users any amount paid to Customers arising out of the said loss or damage.
7.6 Users undertake to provide their Customers with required technical and management support, in their use of the Services.
8. Limitation of Liability in Relation to Customers
The Company shall not be liable for any loss or damage caused to Users or Customers, if the same did not arise from the Company’s willful acts. This limitation of liability shall extend to the Company’s authorized affiliates who have a legitimate business relationship with the Company. However, if the Company or its Affiliates are compelled by law or contract to answer for any liability to Users and Customers, the following rules shall regulate the same:
a. In case of loss or damage to goods, the Company shall repair or repay the goods, or pay the market value or cost for repair of the said goods, at the option of the Company;
b. In case of loss or damage arising out of the availment of services, the Company shall repeat the Service or pay the cost of having the said Service performed again, at the option of the Company.
9. Restriction on Exportation of Services or Data
Users are prohibited from directly or indirectly removing or exporting the Services from Australia, or any direct product of the same, including technical data, if the said removal or exportation contravenes any law or restriction of Australia, that of the Users’ national law, or those of other applicable Countries.
10. Provisions affecting Validity of the Agreement
If any provision of the Agreement is found to be unenforceable or invalid, the other provisions not affected by the same, shall remain valid and binding.
10.1 This Agreement constitutes the complete and exclusive statement of obligations between the Company and Users (hereinafter jointly referred to as “The Parties”). The said Agreement supersedes and nullifies all previous contracts of whatever nature, relating to the subject matter of the Agreement. The Parties undertake to execute all waivers of the Agreement in writing and to sign the said waivers, unless otherwise provided in the Agreement.
The Parties shall not be considered to have waived any right or remedy under existing laws or equity, if they failed or omitted to exercise the said rights or remedies within the time prescribed by law.
11. Legal Relationship of the Parties
No agency or employer-employee relationship exists between the Parties, by virtue of this Agreement. Neither shall this Agreement be construed as a joint-venture between the Parties. Users acknowledge that they have no authority over the Company or its Affiliates resulting from the Agreement.
12. Choice of Law
The Agreement shall be governed by the laws of the State of NSW Australia without regard to its provisions on the choice of law or conflict of laws. All legal actions in connection with the Agreement shall be brought in State or federal courts located in Sydney, New South Wales, Australia.
13. Non Applicability of the Viena Sales Convention of 1980
8.6 The application of the United Nations Convention on Contracts for the International Sale of Goods (hereinafter referred to as “Vienna Sales Convention of 1980”) is excluded from this Agreement.
13.1 Mutual Right to Recover Attorney’s Fees
In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
14. Limitations on the Use of SMS Messages
14.1 When sending SMS Messages, all Users and their Customers must abide by the
Australian Spam Act 2003 (Cth) and other anti-spam legislation which may be applicable to Users.
14.2 Commercial SMS messages must be sent in a manner which allows subscribers to remove themselves from a User’s list. The mechanism allowing such removal must operate for a period of thirty (30) days after the date when a message is sent, and must be in such form as to satisfy the Company.
14.3 Users are prohibited from removing or disabling the mechanism referred to in the preceding section., and from attempting to do the same.
14.4 All SMS Messages must reveal the following details concerning the sender of the SMS Message or the entity in whose behalf the said message is sent: (a) identity, (b) contact details, (c) web address or phone number.
14.5 Every commercial SMS Messages must state the purpose of the same.
14.6 All SMS messages must comply with the disclosure requirements of the State or Teritory from which the messages are sent.
15. Consent of Recipients
15.1 In availing of the Services, Users and Customers shall only be allowed to send SMS Messages to persons whom they are permitted to contact.
15.2 Users shall be responsible for ensuring that their SMS campaigns do not generate an excessive amount of complaints. The Company reserves the right to determine whether or not the number of complaints garnered by Users is within industry norms. The Company’s decision on the matter shall be final, binding and conclusive for all purposes of this Agreement.
15.3 Users are prohibited from utilizing the Services for sending unsolicited SMS messages (hereinafter referred to as “Spam”). Users are advised to read the Company’s Anti-Spam Policy which forms part of this Agreement for further information concerning this Provision.
15.4 The Company reserves the right to immediately disable Users’ access to the Services, if it finds that the said Users have violated any of the provisions relating to consent, herein referred to, or those of the Company’s Anti-Spam Policy.
16.1 Users undertake to comply with the security measures of the Company’s websites or Services. Users will not hack into the Company’s website, computer systems or other systems involved in the utilization or delivery of Services. For the purposes of this provision, hacking means any unauthorized access and malicious damage or interference with the websites or computer systems herein described.
16.2 The Company makes no warranties as to the cleanliness or safety of the files or programs that may be downloaded or executed from the Services. Users assume all risk from the availment of the Services and the consequences of the same. Further, Users hereby release the Company from any liability or adverse consequence that may arise from the use of the said files or programs.
17 Use of Personal Information Obtained from Availment of Services
18. Pertinent Laws
The Company undertakes to recognize the applicable laws of Australia and those of European Union, which may be applicable to Users and Customers.
19. Intellectual Property Rights
Users acknowledge that any names, logos, design, marks or slogans used in relation to the Company’s software and products belong exclusively to the Company.
20. Consent of Third Persons With Regard to the Use of Personal Information
Users warrant that any information acquired from third persons by virtue of this Agreement, was lawfully obtained with the latter’s knowledge and consent.
2`.1 Users may terminate this Agreement at any time by contacting the Company or sending written notice to SMS Fusion, Suite 24, Level 6, 58 Pitt St, Sydney, Australia. Correspondence must include a User’s first name, last name and username. Users are advised that no refunds will be issued if the Agreement is terminated, unless the termination is made in accordance with clause 1.1 of this Agreement.
22.2 The Company reserves the right to terminate this Agreement and the Services thereunder at any time, with or without cause or notice, at the Company’s discretion. Users hereby absolve the Company from any liability arising from the termination herein stated. In the event that the Agreement is terminated because of Users’ breach of the same, the Company shall not refund, any payments made for unused Services, to the breaching Users.
22.3 The Company may delete any archived data of Users within thirty days after the date of termination. Any statutory requirements with respect to Users’ business correspondence are considered the sole responsibility of the said Users. If by their nature, any provisions of this Agreement should survive its termination, the said provisions shall continue to remain effective after the same.
22.4 Users consent to the termination of their accounts if they fail to access the same, or avail of the Services for more than 14 months. The Company undertakes to provide Users with a 30 day period from the date of termination to reactivate their accounts. If the said accounts are not activated within the said period, the account and its data including subscriber sign-ups will be permanently removed from the Company’s data base. Any remaining pre-paid credit balance of User’s will be returned to the User upon the permanent removal of the account.
23. Warranties, Disclaimer and Remedies
Users avail and rely upon the Services, and act upon such availment or reliance, at their own risk. The Company does not guarantee that the Services will be continuous, accurate or error-free. The Company further disclaims all warranties express or implied for the said Services, other than those expressly stated in the said Services.
Users acknowledge that their sole and exclusive remedy for any failure or non-performance of Services shall be the Company’s commercially reasonable efforts to adjust or repair the said services. In the event that the said adjustments or repairs are not feasible, the Company undertakes to again perform the Services or refund the amount actually paid for the same, at the choice of the Company
24. Force Majeure
The Company shall not be liable for its failure to perform its obligations under this Agreement, for causes it could not have foreseen or though foreseen is inevitable. Such causes include strikes, riots, fire, explosions, acts of God, war, governmental action, or any other situations of a similar nature.
25. Source of Servers
The Company warrants that the servers used to provide the Services referred to herein, are located in Australia, the United Kingdom, Hong Kong and the United States. In the event the data is transferred to the Company’s Servers from the European Economic Area, the Company’s Data Transfer Clauses will apply to the said transfer.
26. Other Related Agreements