By accessing, browsing and/ or using the SMS Everyone website and service you agree to the following terms. If you do not agree you must cease using the SMS Everyone website.
The following are the terms and conditions for use of the SMS Everyone ABN 63 580 535 700 Service ("SMS Everyone Service" or "the Service") by the Client (hereinafter referred to as "the Client" or "The Client"). Please read them carefully.
IMPORTANT: BY USING SMS EVERYONE PRODUCTS/SERVICES ON A WEBSITE AND/OR ACCESSING ANY PART OF THE SMS Everyone SERVICE THE CLIENT IS AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, AND CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS SERVICE AGREEMENT. SHOULD THE CLIENT NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, OR CANNOT COMPLY WITH THESE TERMS AND CONDITIONS, HE or SHE SHOULD CLOSE THE BROWSER WINDOW; THEREFORE TERMINATING THE REGISTRATION PROCESS WILL, AND AGREEING TO STOP ALL USE OF THE SERVICE AND SURRENDERING ANY AND ALL AUTHORITY TO USE THE SERVICE.
IF THE CLIENT IS DEEMED TO HAVE ORDERED THE SERVICE, SMS Everyone’ ACCEPTANCE IS EXPRESSLY CONDITIONED UPON ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY SMS Everyone, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
THE CLIENT AGREES THAT ALL TERMS AND CONDITIONS HEREWITH PUBLISHED SHALL BE BINDING AND THAT SHOULD THERE BE A CONTRADICTION BETWEEN PRODUCT-SPECIFIC TERMS AND CONDITIONS, AND GENERAL TERMS AND CONDITIONS, THE PRODUCT-SPECIFIC TERMS AND CONDITIONS SHALL APPLY.
1. The Service
The Service consists of a browser interface, messaging application, SMS gateway access, e-mail reporting, data encryption, data transmission, data access, data storage, virtual mobile numbers and, if applicable, synchronization software. The Client is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all access charges (e.g., ISP, telecommunications) incurred while using the Service. These costs will be displayed during the registration process. All fees are payable upfront, prior to credits being activated.
SMS Everyone makes no guarantees as to the continuous availability of the Service or any specific feature(s) of the Service. SMS Everyone reserves the right to change or terminate the Service and/ or alter the terms and conditions of this agreement at any time without notice and with immediate effect. All fees paid to SMS Everyone when such termination occurs are addressed in the sections below.
Messages shall be deemed to have been delivered when SMS Everyone has delivered/sent the messages to the immediate destination that SMS Everyone' software is programmed to do, including SMTP servers, Mobile telephone networks, or any other intermediary server or API that is deemed to be the point of dispatch of the message. SMS Everyone does not guarantee delivery on behalf of Mobile telephone networks of mail servers.
SMS Everyone lays no claims to its network coverage. Although SMS Everyone focuses on providing extensive coverage aggregation Services, mobile networks may choose from time to time to not be part of SMS Everyone or its Service providers' networks. This may result in messages not being delivered.
2. Use Of Proprietry Software
Subject to the terms and conditions of this Service Agreement and Australian and New Zealand Law, SMS Everyone grants the Client an individual, personal, non-sub licensable, non-exclusive and non-transferable license ("the License") to use its proprietary software and/or application Service, in object code form only, and only in accordance with the applicable end Client documentation, if any, and only in conjunction with the SMS Everyone Service Agreement. The Client will not, directly or indirectly, reverse engineer, de-compile, disassemble or otherwise attempt to establish the source code or underlying ideas or algorithms of the software; modify, translate, or create derivative works based on the software/ application; or copy (except for archival purposes), rent, lease, distribute, assign, or otherwise transfer rights to the software/application; use the software/application for timesharing or Service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels with regard to SMS Everyone products and/or Services. As between the parties, the Client acknowledges that SMS Everyone, and its licensors retain ownership of all propriety applications, software, intellectual property "IP" (Intellectual Property) and any portions or copies thereof, and all rights therein. Upon termination of this Service Agreement for any reason, this License will terminate and the Client shall destroy and cease to use all software and applications. THE SOFTWARE IS PROVIDED AND APPLICATIONS ARE OFFERED, "AS IS" AND SUBJECT TO THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY FOUND IN THIS SERVICE AGREEMENT AND SUBJECT TO TESTING BY THE CLIENT OR CLIENT PRIOR TO ENTERING INTO THIS AGREEMENT.
3. Member Account, Password, And Security
To open an account for usage of the Service, the Client must complete the registration process by providing us with current, complete and accurate information as prompted by the Membership/registration form. Inaccurate details will result in suspension. The Client will also choose a password and an account name. The Client is entirely responsible for maintaining confidentiality with regard to its password and account information. Furthermore, the Client is entirely responsible for any and all activities that occur under its account. SMS Everyone will not be held liable to any third party claims and or actions taken with respect to Services offered.
The Client agrees to notify SMS Everyone immediately of any unauthorised use of its account or any other breach of security.
4. Member Privacy
It is SMS Everyone’ policy to respect the privacy of the Client. SMS Everyone will not, edit, or disclose any personal information about the Client or the Client’s SMS Everyone account, including its contents, without the Client’s prior permission unless SMS Everyone has a good faith belief that such action is necessary to: (1) conform to legal requirements or comply with legal process; (2) protect and defend the rights or property of SMS Everyone; (3) enforce this Service Agreement or protect SMS Everyone 's business or reputation, including without limitation upon termination, cancellation or suspension of this Agreement by SMS Everyone; (4) respond to request for identification in connection with claim of copyright or trademark infringement by the Client or a claim by a third party that the Client is using the Service in connection with an infringing, illegal or improper activity; or (5) act to protect the interests of the Client or others.
The Client agrees that SMS Everyone may access its account, including its contents, as stated above or to respond to Service or technical issues or provide managed services.
THE CLIENT HEREBY GRANTS SMS Everyone THE RIGHT TO SEND THE CLIENT COMMUNICATION VIA E-MAIL OR SMS OF ANY UPDATES, UPGRADES, NOTICES, OR OTHER INFORMATION THAT SMS Everyone DEEMS IMPORTANT FOR THE CLIENT TO KNOW, RELATING TO THE SERVICE.
5. Message And Other Limitations
SMS Everyone assumes no responsibility for the deletion or failure to store information. SMS Everyone has set no fixed upper limit on the number of messages the Client may send through the Service apart from how many units (credits) are left in the Client's account; however, SMS Everyone reserves the right, at its sole discretion, to determine whether or not the Client’s conduct is consistent with the letter and spirit of the Service Agreement and may terminate the Service if the Client’s conduct is found to be inconsistent with the Agreement. Please see POINT 8 below for more information on procedure at termination of the Service. SMS Everyone may, in the future, with prior notification, limit the amount of storage space available to each Member.
The sender ID that may be sent as part of mobile text messages it is a limited feature and may only be altered with consent and by an authorised SMS Everyone staff member.
Although SMS Everyone prides itself on speedy delivery of messages, messages may be delivered late due to queuing or network traffic. This will still result in the message being seen as "delivered".
6. Member Conduct
Any unauthorised use of the Service is expressly prohibited. The Client agrees to abide by all applicable local, national and international laws and regulations and is solely responsible for all acts or omissions that occur under its account or password, including the content of any transmissions through the Service. By way of example, and not as a limitation, the Client agrees not to:
Use the Service in connection with chain letters, junk SMS, spam or any unsolicited messages (commercial or otherwise) or any other activity which is or may be in breach of the Spam Act 2003, information about which can be obtained at www.acma.gov.au;
Use the Service to harvest or otherwise collect information about others, without their consent or to use such information in any way relating to the Service;
Broadcast SMS to any persons, unless permitted by law including relevant industry codes which can be viewed at www.acma.gov.au;
Create a false identity or forged mobile phone address or header, or otherwise attempt to mislead others as to the identity of the sender or the origin of the message;
Transmit through the Service, associate with the Service or publishing with the Service unlawful, harassing, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature;
Transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity;
Defame or insult any person, or infringe any person's rights to privacy or any other rights;
Transmit any material that contains viruses, Trojan horses, worms, time bombs, cancel bots, or any other harmful or deleterious programs;
Interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks;
Attempt to gain unauthorised access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means;
Interfere with another Client’s use and enjoyment of the Service or another entity's use and enjoyment of similar Services; or
Engage in any other activity that SMS Everyone believes, in SMS Everyone' sole discretion could expose SMS Everyone to criminal liability or civil penalty or judgment or in any way bring SMS Everyone or the Service into disrepute.
7. Fees And Payments
Fees. In consideration for the use of SMS Everyone’ Services, the Client shall pay to SMS Everyone a transaction and/or subscription fee (if appropriate) for messages delivered using any available delivery method, at the applicable rate then in effect. SMS Everyone may from time to time offer limited time "Free Trial" or similar promotions during which no transaction fees or reduced transaction fees shall apply. Such promotions are intended for Clients to test the capabilities of the Service and/or for casual, personal use only. During such promotions, all provisions of this Agreement shall remain in full force and effect.
All fees are payable on their due date. Failure to pay will result in suspension of the Services. Upfront payment refers to payment that is made within a reasonable time so as to allow SMS Everyone to add the SMS credits to the Client's account.
Credit Card Payment. If the Client has elected to pay for the Service by credit card, and SMS Everyone does not receive payment from the credit card issuer, the Client agrees to pay all amounts due, immediately upon demand by SMS Everyone. SMS Everyone reserves the right to come to other payment arrangements on a case-by-case basis. (Agreements with the credit card issuer govern use of the Client’s credit card, and the Client must refer to that agreement to ascertain its rights and liabilities as a cardholder.)
SMS Everyone reserves the right to alter the terms and conditions of any agreement at any time. Upon altering the terms and conditions, SMS Everyone will offer the new terms and conditions to the Client for acceptance. If the Client does not accept the new terms and conditions the agreement will be terminated 30 days from that date. SMS Everyone will not be liable for any loss incurred by the Client for such a termination. The Client will remain liable for any charges that are incurred or which accumulate to the date of termination.
In no circumstances shall the Client be entitled to any refund of payments made under these Terms.
8. Modification Of Terms; Termination, Cancellation, And Suspension
Modification of Terms. SMS Everyone frequently updates, modifies, and otherwise continually seeks to improve the SMS Everyone Services and products. Such changes often dictate that we simultaneously modify our Terms and Conditions of Use. As such, SMS Everyone shall have the right to modify the terms of this Agreement and to change or discontinue any aspect or feature of the SMS Everyone Service, in either case, as it deems reasonably necessary. Such changes shall be effective immediately upon posting of such addition, change, or deletion. Any use by the Client of the Service after any such change has been posted shall constitute the acceptance of any such changes. If the Client does not agree with any such changes, the Service may be cancelled in accordance with the procedures for cancellation set forth in this Agreement. The Client acknowledges its responsibility to review this Agreement from time to time and to be aware of any such changes.
Termination, Cancellation and/or Suspension by SMS Everyone; Disclosure of Information. This Agreement and the license granted here under may be terminated, cancelled and/or suspended by SMS Everyone at any time if, in SMS Everyone‘s sole discretion, the Client breaches these Terms of Service. Such termination, cancellation and/or suspension by SMS Everyone shall be effective immediately upon notification by SMS Everyone to the Client in any reasonable manner, including but not limited to, notification by e-mail. Upon, during, and/or after any such breach, SMS Everyone may elect to suspend, terminate and/or cancel this Agreement and/or recover any and all damages from the Client arising from or relating to the event(s) giving rise to the suspension, termination or cancellation. SMS Everyone reserves the right to suspend the Client's Service at any stage for any reason it may deem necessary to continue to provide any of its Services in a way that may be hindered by the Client's status as being a SMS Everyone Client, financial status of the Client or the content of the messages originating from the Client
In the event that SMS Everyone receives complaints from recipients or third parties with respect to the use of the Service, SMS Everyone additionally reserves the right, in its sole discretion, to disclose any and all information to the recipient, applicable authorities or any other party with regard to its Clients and application Clients.
Obligations upon Termination and/or Cancellation. Upon any termination, cancellation and/or suspension of this Service Agreement, the Client is responsible for any obligations then accrued including, but not limited to, payment of any costs or charges that may arise in connection with such termination, cancellation and/or suspension, and payment of all outstanding transaction fees for use prior to said termination, cancellation and/or suspension occurs. Payment and other obligations under this Service Agreement are not suspended, stayed, or otherwise affected by a suspension of access to / or use of SMS Everyone (in whole or in part) where said suspension arises from the Client’s failure to comply with, or violation of, the terms of this Service Agreement or of any law or legal obligation. Upon termination and/or cancellation, for any reason, the Client agrees to immediately cease using SMS Everyone and remove all SMS Everyone software and applications on any computer, database, server (local or remote) in the Clients possession or under its control. SMS Everyone shall have no obligation to the Client after any termination or cancellation of this Service Agreement.
9. No Warranties Or Liabilities
GENERALLY. THE CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICE AND THE INTERNET GENERALLY IS AT ITS OWN RISK AND THAT SMS Everyone IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESS OR IMPLIED. SMS Everyone WILL USE COMMERICIALLY REASONABLE EFFORTS TO MAKE ACCESS TO SMS Everyone AVAILABLE TO THE CLIENT THROUGH THE REQUIRED ACCESS PROTOCOLS, BUT MAKES NO WARRANTY OR GUARANTEE THAT THE CLIENT WILL BE ABLE TO ACCESS SMS Everyone AT ANY PARTICULAR TIME OR ANY PARTICULAR LOCATION.
ADDITIONAL LIMITATIONS. Without limiting the generality of the terms set forth in Section 9(A), SMS Everyone and its affiliates, agents, content providers, service providers, and licensors:
HEREBY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES AS TO THE ACCURACY, COMPLETENESS, NONINFRINGEMENT, MERCHANTABLIITY OR FITNESS FOR PARTICULAR PURPOSE OF SMS Everyone GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN, AS WELL AS ALL EXPRESS AND IMPLIED WARRANTIES THAT THE OPERATION OF SMS Everyone GENERALLY AND ANY CONTENT OR SERVICES CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE;
SHALL IN NO EVENT BE LIABLE TO THE CLIENT OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE CAUSED IN WHOLE OR IN PART BY FAILURES, DELAYS OR INTERRUPTIONS OF THE SERVICE GENERALLY, AND ANY ASPECT ANCILLARY THERETO; (THE CLIENT AGREES TO INDEMNIFY SMS Everyone PURSUANT TO SECTION 11 HEREOF FOR ANY AND ALL THIRD PARTY CLAIMS ARISING FROM SUCH FAILURES, DELAYS OR INTERRUPTIONS IN CONNECTION WITH REGARD TO USE OF THE SERVICE);
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH JURISDICTIONS, SMS Everyone’S LIABILITY (AND THE LIABILITY OF ITS AFFILIATES, AGENTS, CONTENT PROVIDERS AND SERVICE PROVIDERS) SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
10. Third Party Beneficiaries
Notwithstanding anything to the contrary contained herein, the provisions for "No Warranties and Liabilities" set forth in Section 9 herein are for the benefit of SMS Everyone and its affiliates, agents, content providers and Service providers and each shall have the right to assert and enforce such provisions directly on its own behalf.
The Client agrees to indemnify, hold harmless, and defend SMS Everyone and its affiliates, agents, content providers and Service providers, against any and all claims, liabilities, damages, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, attorneys' fees and disbursements) arising from or relating to (i) the use of the Service in any manner which violates the terms of this Service Agreement or otherwise violates any law, rule, or regulation and (ii) any claims made by third parties arising from your use of the Service, including without limitation any and regulation all third party claims arising from or related to any failure, delay or interruption to the Service. The Client agrees to cooperate as fully as reasonably required in the defence of any claim. SMS Everyone reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by the Client.
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Service Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Service Agreement will otherwise remain in full force and effect and enforceable. In this Agreement, any reference to the singular includes the plural and vice versa, any reference to natural persons includes legal persons and vice versa and any reference to a gender includes the other genders. This Agreement shall be governed by and construed and interpreted in accordance with the laws of Australia and New Zealand. No agency, partnership, joint venture, or employment is created as a result of this Service Agreement and the Client does not have any authority of any kind to bind SMS Everyone in any respect whatsoever. In any action or proceeding to enforce rights under this Service Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Service Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery Service; and upon receipt, if sent by certified or registered mail, return receipt requested. These terms and conditions constitute the whole agreement between SMS Everyone and the Client and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
13 SMS Everyone Database, Messaging & Campaign Specific Terms And Conditions
SMS Everyone allows Clients to upload and manage databases and send SMS to their databases via SMS Everyone’s website.
SMS Everyone reserves the right to approve Clients and review and approve or disapprove any Material proposed to be Sent by Clients at its sole discretion.
SMS Everyone encourages the use and publicity of anti-spam policies.
The Client is responsible for testing messages prior to sending them out to recipients.
The Client is responsible for the data structure and integrity of his/her data on SMS Everyone' server. SMS Everyone is under no obligation whatsoever to ensure that the data remains on its servers. The Clients must ensure that the data on SMS Everyone's servers is a copy of the Client's data, and not the original data.
Time-delayed messaging is not guaranteed to result in exact specified time delivery, although SMS Everyone' servers are programmed to be delivered at the specified time.
Messages can only be sent to mobile phone numbers supplied by the Client and contained in a particular List, uploaded and selected by the Client, or sent via the SMS Everyone API in relation to the Message campaign or message notification.
The Client represents and warrants that it has authority or permission from Recipients to Send those persons Messages.
The Client acknowledges that SMS Everyone does not create and is not responsible for any Material Sent by the Client via the Services and that SMS Everyone is not the author or the publisher of any Material or Message campaign of the Client. The Client is solely responsible for the Material and the Message campaign.
The Client further acknowledges that SMS Everyone does not rent or sell Lists.
SMS Everyone retains the right to prevent the Sending of any Message campaign that violates or might violate the Usage Rules.
SMS Everyone disclaims all copyright and other rights in such Material and all responsibility for them.
In permitting the Client to undertake Message campaigns, SMS Everyone makes no warranties or representations of any kind as to the accuracy or suitability of the Material contained in the Message campaign.
SMS Everyone specifically disclaims liability for direct, indirect, consequential or incidental damages arising from such Material or campaigns of the Client.
By generating a Message campaign through SMS Everyone, the Client warrants that the Material is true, and that the Client will indemnify SMS Everyone against any and all direct, indirect or consequential claims and alleged claims (whether under statute, contract, tort or equity) that may arise from Client's use of the Services.
By using the SMS Everyone Services, the Client is giving SMS Everyone permission to copy, back up and store Client Material, Lists and other Client information.
SMS Everyone reserves the right to alter the time and date of delivery of the campaign as well as Sender ID or message content (For example if a message is delayed and the word 'tomorrow' needs to be changed to 'today' to ensure the message content is accurate) and the delivery of the results without prior notification to the Client of such a change and SMS Everyone will not be liable to Client for any resulting delay or change to the time and date of delivery or content of the Campaign.
All Messages Sent to Recipients from a List must have an option to unsubscribe / opt out of that List via standard ACMA approved methods. The Client is solely responsible for and must ensure that an unsubscribe/opt out option is inserted into all Messages sent as part of a campaign.
If a Recipient chooses to unsubscribe / opt out, by following the process established by SMS Everyone then:
Their unsubscribe / opt out request will be fulfilled within minutes; and
SMS Everyone will do everything reasonably possible to ensure that no further communications will be Sent to the particular mobile number of the Recipient, in connection to the unsubscribe / opt out request, from that List; and
The Client must ensure that the Recipient is removed from any other Lists uploaded to the Service by the Client, either in the past or future, in reliance of the Recipient's previous subscription / opt in, which is now the subject of an unsubscribe / opt out request or, is solely responsible for ensuring that it has permission to Send a Message to a person who has been the subject of an unsubscribe request.