SMSit Messenger Terms of Use
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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