Terms of Service

ARCHIVED VERSION Last updated: 21 February 2023

Click here for the latest Terms of Service.

These Intelli Messaging Terms and Conditions (“Agreement”) apply to your use of the Web Application, Gateway, our website (https://intellisms.com.au/) and Services, including the features provided in connection with our Services.

This Agreement is between FujiFilm Secure Messaging Services Pty Ltd (“Intelli Messaging”) and you or the organisation on whose behalf you are accepting or otherwise agreeing to the terms and conditions of this Agreement (“you”, “your”, “yours”, or “Customer”).

If you have a separate written agreement with Intelli Messaging for your use of the Services, this Agreement will not apply to you, unless that written agreement does not cover your use of the Web Application, Gateway, our Website and/or a particular Service, in which case, these Intelli Messaging Terms and Conditions of Use apply solely to your use of Web Application, Gateway, our Website and/or that particular Service.

This Agreement is effective as of the date you first click “I accept” (or similar button or checkbox) or use or access the Web Application, Gateway or Service, whichever is earlier (the “Effective Date”). This Agreement does not have to be signed in order to be legally binding between you and Intelli Messaging. You agree to this Agreement by clicking “I accept” (or similar button or checkbox) at the time you register for the Services or create an account.

Please review this Agreement carefully. If you do not agree to be bound by this Agreement, must not accept this Agreement, create an account, or use the Services (as defined in section 1 (Definitions) below).

1. DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified.

“Acceptable Use Policy” means the terms relating to the use of the Services as published by Intelli Messaging on Intelli Messaging’s website or as notified to the Customer or otherwise made available to the Customer by Intelli Messaging directly from time to time.

“ACL” or “Australian Consumer Law” means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

“API” means application programming interface as specified in the Interface Specification.

“Business Day” means a day on which banks are open for general banking business in Victoria, Australia, excluding Saturdays, Sundays and public holidays.

“Carriage Service” has the same meaning as given to the corresponding term in the Telecommunications Act.

“Carrier” has the same meaning as given to the corresponding term in the Telecommunications Act and includes but is not limited to Telstra, Optus and Vodafone but also includes an entity that operates a telecommunications network outside Australia.

“Characters” means all letters, numbers, spaces, symbols and punctuation marks.

“Customer Account” means a single customer account within the Gateway.

“Customer Information” means the information, materials, logos, documents, qualifications and other intellectual property or data provided by the Customer Intelli Messaging in connection with the Services, including Data.

“Data” means Personal Information that is supplied by (or on behalf of) the Customer to Intelli Messaging in connection with the Services under this Agreement.

“Data Incident” means any actual:

breach of Intelli Messaging’s obligations relating to protection of Data under this Agreement;
unauthorised access to, or unauthorised disclosure of, any Data; or
loss of Data, including where Data is damaged or corrupted so that it becomes unusable; or
where, as determined by Intelli Messaging, the access or disclosure is likely to result in serious harm to one or more individuals and Intelli Messaging has not been able to prevent the likely risk of serious harm with remedial action.
“End Customer” means a party using the service that is a customer of the Customer.

“Fees” means the fees and charges set out, referred to or otherwise calculated at the time the Customer purchases Transaction Credits.

“Gateway” means the Intelli Messaging messaging servers and applications accessed through the defined Interface Specifications and/or Web Application as updated by Intelli Messaging in its sole discretion from to time that provides the Service.

“Interface Specifications” means the interface specifications contained in the version of the document(s) provided to or made available to the Customer by Intelli Messaging from time to time.

“Message Status Query” means a call to the API, which polls the GSM network for each and every MT Message.

“MO Message” means Mobile Originated SMS Message, or a SMS Message sent from a mobile phone via the GSM network and received back to the Customer via the Gateway.

“MT Message” means Mobile Terminated SMS Message or the initial SMS Message sent by the Customer and delivered by the Gateway to the GSM network and onto a device capable of receiving SMS Message.

“Network Operator” means any entity operating a GSM-based mobile telephony network, offering mobile telephony services to its customer base.

“New Materials” means all intellectual property developed, adapted, modified or created by Intelli Messaging in the provision of the Services.

“Personal Information” has the meaning given to ‘personal data’, ‘personal information’ or ‘personally identifiable information’ by the Privacy Legislation.

“Privacy Legislation” means all applicable state, federal, and foreign privacy, information, security and data protection laws, codes and regulation that are appliable to the provision of the Services and as they apply to the parties in the context of their roles and responsibilities under this Agreement, including but not limited to the Privacy Act 1988 (Cth), Australian Privacy Principles, and California Consumer Privacy Act, in any case as may be amended, superseded or replaced from time to time.

“Privacy Policy” means the privacy notice published by Intelli Messaging on its website, the current version of which is available at https://intellisms.com.au/privacy-policy/.

“Service” means:

(i)The SMS Messaging Services;
(ii) The SMS Marketing Services; and/or
(iii) any other products and services offered by Intelli Messaging and as agreed between the parties from time to time or used by Customer, whichever is earlier.
“SMS Messages” means short text messages sent via the Gateway to a mobile phone on a Network Operator’s GSM networks.

“SMS Messaging Services” means the delivery of an SMS Message to the relevant mobile GSM network.

“SMS Marketing Services” means the use of SMS Messages in a co-ordinated marketing campaign.

“Telecommunications Act” means Telecommunications Act 1997 (Cth).

“Transaction Credits” means credits pre-purchased by the Customer via the Web Application in order to use the Services, including sending SMS Messages, and as further contemplated in clause 9.1 of this Agreement.

“Web Application” means a self-service web application that Customers can access via Intelli Messaging’s website (https://intellisms.com.au/) to access and use the Services.

2. TERM

This Agreement will start on the Effective Date and will continue unless terminated earlier in accordance with this Agreement.

3. SERVICE

3.1 In consideration of the Fees, Intelli Messaging will provide the Services to the Customer and the End Customer via the Gateway on the terms and conditions set out in this Agreement.

3.2 After the Effective Date of Agreement, the parties may agree to expand or add additional services to the Agreement (Additional Services). The parties may do this by documenting any such Additional Services in writing.

3.3 Intelli Messaging will provide support services as mutually agreed by the parties in writing. Customer acknowledges and agrees that such support services may be subject to additional fees and charges.

3.4 If Intelli Messaging provides a time within which the Services are to be provided, Intelli Messaging will use reasonable endeavours to provide the Services by such time, but the Customer agrees that:

a) such time is an estimate only, and creates no obligation on Intelli Messaging to provide the Services by that time; and

b) Intelli Messaging’s performance of the Services is subject to the Customer providing Intelli Messaging in a timely manner with any Customer Information that Intelli Messaging requires in order to provide the Services to the Customer.

3.5 The terms set out in this Agreement apply to all Services provided by Intelli Messaging to the Customer by agreement between Intelli Messaging or, failing agreement, under section 479 of the Telecommunications Act.

4. ACCESS TO THE SERVICE

4.1 In order to access and use the Services, Customer is required to register for an account via the relevant link on the website. To register for an account, you must provide Intelli Messaging with certain information about you as requested on the relevant account registration page. You confirm that all of the information you provide to Intelli Messaging as part of your registration for an account is complete, true and accurate. Intelli Messaging has the sole discretion to grant an account upon review of your completed registration.

4.2 Customer is solely responsible for ensuring the confidentiality and security of its Customer Account. Customer must keep its login credentials strictly confidential and must not share its login credentials with any unauthorised person. Customer is responsible for all actions taken using its account or password, whether with or without its authorisation, and Customer agrees to immediately notify Intelli Messaging of any unauthorised access or use of its account which it becomes aware of.

4.3 Customer may provide access and use of the Services to its End Customers, in which case Customer must promptly notify Intelli Messaging in writing and Intelli Messaging will establish an account and issue login credentials or provide instructions for the End Customer to establish an account themselves, to enable such access and use. Customer must ensure that all such access and use by the End Customer is subject to and in compliance with this Agreement and Customer will at all times remain liable for its End Customer’s compliance with this Agreement.

5. SENDING SMS MESSAGES

5.1 The Customer may use the Gateway to send SMS Messages to the Customer’s defined message recipient provided the Customer has sufficient Transaction Credits. SMS Messages that contain more than 160 bytes of data as defined by the GSM 03.38 Character set will be sent as multipart SMS Messages where the message from the customer is split into multiple SMS Messages which are recombined by the receiving handset.

5.2 Customer may send up to a maximum of five (5) SMS Messages per second per Customer Account via the Gateway (“Maximum Message Rate”). For the purposes of calculating the Message Rate, this number includes all calls to the Gateway to send MT Messages, retrieve MO Messages and query MT Message Status.

5.3 Where the Customer wishes to exceed the Maximum Message Rate per Customer Account, the Customer must get prior approval from Intelli Messaging writing and such variation to the Maximum Message Rate may be subject to additional fees. The Customer acknowledges that its failure to adhere to this requirement could have a material impact on Intelli Messaging and may result in loss by Intelli Messaging and/or other customers of Intelli Messaging.

6. DELIVERY OF SMS MESSAGES

6.1 Delivery
Subject to clause 9 (Transaction Credits, Fees and Payment) and 18 (Force Majeure), Intelli Messaging will use its reasonable commercial efforts to deliver the SMS Message sent by the Customer or End Customers (as the case maybe) from the Gateway to the mobile GSM network.

6.2 Out of scope
Intelli Messaging is not responsible for delivery of the SMS Message from the mobile GSM network to the nominated mobile phone. This is the responsibility of the relevant mobile GSM network recipient.

7. CUSTOMER RESPONSIBILITIES

7.1 Customer

The Customer shall:
a) use the Services only in accordance with this Agreement, the Acceptable Use Policy and applicable laws;
b) be solely responsible for all use of the Services under any Customer Account;
c) be solely responsible for all acts, omissions, activities and use by End Customers (whether or not authorised by this Agreement);
d) be liable to pay the relevant fees for use of the Service by the End Customer;
e) ensure that the use of the Service by End Customers is in accordance with the terms of this Agreement, the Acceptable Use Policy and applicable laws;
f) manage the Customer Accounts within the Gateway;
g) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and promptly notify Intelli Messaging of any unauthorized access or use; and
h) provide support for the Service to the End Customers.

7.2 Service Suspension
Intelli Messaging may suspend access to the Service for a particular period or may terminate the Agreement immediately upon giving notice the Customer if the Customer or End Customer uses the Service (or Intelli Messaging reasonably believes that the Customer or End Customer has or is using the Service):
a) unlawfully or in a manner that is suspected to be in breach of any applicable law; or
b) in contravention of a relevant industry or government code; or
c) in a manner that contravenes the Spam Act 2003 (Cth), any applicable Privacy Legislation or laws; or
d) in a manner that contravenes the terms and conditions set out in this Agreement and any applicable company policy of Intelli Messaging, including terms relating to the Customer’s use of the Service or any Acceptable Use Policy, as published by Intelli Messaging from time to time; or
e) in a manner where the Service may cause death, personal injury, damage and/or loss to property; or
f) in a manner where there is a threat or risk to the security of the Service or integrity of the network, including problems with the network, or Intelli Messaging needs to suspend the Services to conduct operational and maintenance work on the Network.
Intelli Messaging may also suspend any one Customer Account if the Maximum Messaging Rate for the Customer Account is exceeded or where there is a Force Majeure event.

7.3 Liability for use
The Customer agrees that it is liable for:
a) the destination, content and timing of SMS messages that are sent using the Service by itself and its customers; and
b) any Customer Information that it provides or is provided on its behalf to Intelli Messaging.

7.4 Use of Message Services
The Customer warrants that it and its End Customers will not use the Services or permit the Services to be used to transmit Inappropriate Content. For purposes of this Agreement, “Inappropriate Content” means any Customer Information, Data or otherwise content that:
a) is unsolicited, including without limitation, “junk mail,” “bulk e-mail”, spam or other unsolicited advertising material and/or breaches any applicable Privacy Legislation or laws;
b) causes the introduction of “inappropriate applications”, “inappropriate URLs”, “viruses,” “worms,” “Trojan horses,” “e-mail bombs,” “cancelbots” or other similar destructive computer programming routines into the Gateway, GSM network or subscriber’s handsets or device;
c) that violates any law or legal, regulatory, governmental or Network Operator conditions or codes of practice;
d) is illegal, obscene, offensive, pornographic, threatening, defamatory, discriminatory, misleading or inaccurate or is hateful or encourages hatred or violence against individuals or groups;
e) infringes the intellectual property rights (including but not limited to copyright) of any person or entity or otherwise knowingly breaches the rights of any person or entity; or
f) in any way damages or interferes with Intelli Messaging’s services to other customers, our providers or any facilities or exposes Intelli Messaging or its group related entities to liability.

7.5 Customer warranties
The Customer warrants, represents and agrees that:
a) the Customer’s use of the Services shall comply with clause 7.4 (Use of Message Services) of this Agreement and it shall not incorporate or cause the transmission of any Inappropriate Content;
b) it has the legal capacity to enter into this Agreement. If you are entering this Agreement on behalf of your employer or another entity: (i) you have full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent;
c) it has not relied on any representations or warranties made by Intelli Messaging in relation to the Services (including as to whether the Services are or will be fit or suitable for any particular purposes);
d) it will not distribute or sub-licence the Interface Specification to any person other than in accordance with this Agreement;
e) it will not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Interface Specification;
f) if applicable, it holds a valid ABN which has been advised to Intelli Messaging; and
g) if applicable, it is registered for GST purposes.

7.6 Customer obligations – SMS Marketing Services
Without limiting clause 7.5 (Customer Warranties), in relation to SMS Marketing Services provided Intelli Messaging, the Customer also warrants, represents and agrees that:
a) it has the authority to provide all Customer Information that it provides to Intelli Messaging, including all necessary individual consents and that such consents have been collected in accordance Privacy Legislation; and
b) it has not done anything, and will not do anything, that will cause Intelli Messaging or its related bodies corporate or their personnel to contravene the Privacy Act 1988 (Cth), the Do Not Call Register Act 2006 (Cth), the Spam Act 2003 (Cth) or any other requirement under legislation, industry code or government code or other applicable Privacy Legislation or laws.
c) it is solely responsible for all acts or omissions that occur under the Customer Account, and the content of any SMS Messages transmitted through the Service. The Customer acknowledge and agrees that any SMS Messages sent using the Customer’s Account are deemed to have been sent and/or authorised by the Customer.

8. CUSTOMER DATA
   8.1 In transmitting the Customer’s or End Customers’ SMS Messages from the Gateway to the mobile GSM network, the Customer acknowledges and agrees that Intelli Messaging has no obligation to monitor any SMS Message or the content of any SMS Message. Nonetheless, Intelli Messaging may either review or disclose the content of such SMS Messages transmitted as reasonably necessary to:
   a) comply with applicable laws and legal process;
   b) enforce the terms and conditions of this Agreement;
   c) diagnose or maintain the quality of the Service;
   d) respond to claims that the content of the SMS Message violates the rights of third parties; or
   e) protect the rights, property or personal safety of Intelli Messaging, its users, or the public.

8.2 Intelli Messaging will use reasonable endeavours to protect the privacy and security of the Service. The Customer acknowledges that the Service is not a secure service and the Customer should not use the Service for transmission of confidential or commercially sensitive information.

8.3 This Agreement supplements and incorporates the Privacy Policy.

8.4 If the Customer is subject to the European Union General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR) and any successor legislation , the Customer can request to enter into a Data Processing Addendum (“DPA”) with Intelli Messaging and the DPA must be mutually agreed in writing and signed by the parties.

8.5 This Agreement supplements and incorporates the Privacy Policy and, to the extent the Services are provided in the United States or Canada, the Customer must comply with applicable terms of US and Canadian anti spam laws, including but not limited to the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM Act) and Canada’s anti spam legislation including Electronic Commerce Protection Regulations SOR/2012-36.

8.6 Data Breach Incidents: To the extent the Notifiable Data Breaches scheme under Part IIIC of the Privacy Act 1988 and/or similar requirements under the relevant Privacy Legislation applies to Intelli Messaging:

a) if Intelli Messaging becomes aware of a Data Incident, Intelli Messaging will:
(I) notify Customer of the Data Incident by telephone and email;
(II) retain system logs and other information that may be relevant to the Data Incident, or to assessing the cause or impact of the Data Incident;
(III) provide all information Intelli Messaging deems relevant to the Data Incident reasonably requested by Customer for the purpose of investigating the Data Incident; and
(IV) immediately take all action reasonably necessary to:

mitigate the impact of the Data Incident (including to restore or recover any lost data); and
prevent any repeat of the Data Incident in the future.
b) If Intelli Messaging suspects that a Data Incident has occurred, it will, immediately notify the customer and then within 30 days, prepare an assessment to determine whether there are reasonable grounds to believe that a Data Incident has occurred.

c) Where Customer suspects that a Data Incident has occurred, Intelli Messaging will, within 30 days of receiving notice from Customer of its suspicion, prepare an assessment to determine whether there are reasonable grounds to believe that a Data Incident has occurred, the costs of such assessment must be paid by Customer if no Data Breach has occurred.

d) If Intelli Messaging believes a Data Incident has occurred it will provide notice to the Customer. The parties will work together to determine if the Data Breach constitutes an Eligible Data Breach.

e) To the extent that any Data Incident notified by the Intelli Messaging to the Customer under this clause 8.6 constitutes an Eligible Data Breach in Intelli Messaging’s opinion, The Customer shall be solely responsible for notifying the affected individuals and the Australian Information Commissioner in accordance with the requirements of the Notifiable Data Breach scheme as set out in the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth). However, this clause and this Agreement does not prevent or restrict Intelli Messaging from taking steps with the intent to comply with any applicable obligations it may have under the relevant law.

f) The Customer is liable for and agrees to indemnify Intelli Messaging for any third party charges or fines directly or indirectly incurred by the Intelli Messaging arising from a failure on the part of the Customer to comply with the requirements of the Notifiable Data Breach scheme.

8.7 This clause 8 is subject to the Privacy Policy and the DPA.

8.8 The Customer agrees that in obtaining the Services it must comply with all applicable policies of Intelli Messaging, including the Acceptable Use Policy, as published on Intelli Messaging’ website or as notified to the Customer or otherwise made available to the Customer by Intelli Messaging directly.

9. TRANSACTION CREDITS, FEES AND PAYMENT

9.1 Transaction Credits
a) Transaction Credits are pre-purchased by the Customer on the Web Application. Transaction Credits are added to the Customer’s Account within one Business Day of payment. The Customer may distribute their credits to their End Customer Accounts via the Web Application.
b) All Transaction Credits are saved in the applicable Customer Account or End Customer Account and automatically debited upon sending SMS Messages.
c) Customer Accounts or End Customer Accounts (as the case maybe) with a Transaction Credit balance of zero or less are blocked from sending SMS messages. The Customer may only distribute Transaction Credits up to the balance of Transaction Credits in their Customer Account. The process of assigning credits from the Customer Account to the End Customer Account reduces the Transaction Credits in the Customer’s Account and adds to the End Customer’s Account Transaction Credit balance.
d) Transaction Credits are not refundable, whether or not used.

9.2 Currency of Fees
All Fees are in currency selected by the Customer as part of your registration for an account and will be presented to you at the time of purchase of Transaction Credits.

9.3 Payment of Fees
By purchasing Transaction Credits on the Web Application, Customer authorises Intelli Messaging to use a third party to process payments and consents to the disclosure of your payment information to such third party for the Fee specified at the time of the purchase. Unless otherwise agreed by Intelli Messaging, all payments due under this Agreement to Intelli Messaging will be made by credit card.

10. CONFIDENTIAL INFORMATION

10.1 For the purposes of this clause 10 “Information” shall mean technical, financial and commercial information and data relating to a Party’s or its affiliate’s respective businesses, finances, planning, facilities, products, techniques and processes and shall include, but is not limited to, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes, marketing plans, customer names and other technical, financial or commercial information and intellectual properties, whether in tangible or in intangible form.

10.2 Each Party (“Receiving Party”) shall not disclose to third parties nor use for any purpose other than for the proper fulfilment of the purpose of this Agreement any Information received from the other Party (“Disclosing Party”) in whatever form under or in connection with this Agreement without the prior written permission of the Disclosing Party.

10.3 The above-mentioned limitations shall not apply to Information which:
a) was in the possession of the Receiving Party prior to disclosure hereunder as proven by the written records of the Receiving Party; or
b) was in the public domain at the time of disclosure or later became part of the public domain without breach of the confidentiality obligations herein contained; or
c) was disclosed by a third party without breach of any obligation of confidentiality owed to the Disclosing Party; or
d) was independently developed by personnel of the Receiving Party.

10.4 Each Party shall limit the access to the Information to those of its personnel for whom such access is necessary for the proper performance of this Agreement and obtain written undertakings of confidentiality from them.

10.5 Without prejudice to the generality of the aforesaid, each Party agrees to protect the confidentiality of the Information at least with the same degree of care as it exercises in respect of its own confidential information and business secrets.

10.6 The obligations set forth in this Clause 10 survive termination of this Agreement.

10.7 This clause 10 does not prevent:
a) the Receiving Party from disclosing Information of the Disclosing Party if required pursuant to applicable law, regulation, subpoena or court order, provided the Receiving Party, to the extent permitted by law, gives prompt notice to the Disclosing party of such disclosure request and use reasonable efforts to minimise such disclosure; or
b) Intelli Messaging from disclosing the existence of this Agreement to third parties for the purposes of marketing to customers and potential customers.

11. WARRANTIES
    11.1 Certain legislation, including the Australian Consumer Law, and similar consumer protection laws and regulations, may confer the Customer with rights, warranties, guarantees and remedies relating to the provision of the Services by Intelli Messaging to the Customer which cannot be excluded, restricted or modified (“Consumer Law Rights”).

11.2 If the ACL applies to the Customer as a consumer, nothing in this Agreement excludes the Customer’s Consumer Law Rights as a consumer under the ACL. The Customer agrees that Intelli Messaging’s liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.

11.3 Subject to the Customer’s Consumer Law Rights, Intelli Messaging excludes all express and implied warranties, and all material, work and services (including the Services) are provided to the Customer without warranties of any kind, either express or implied, whether in statute, at law or on any other basis.

12. LIMITATION OF LIABILITY
    12.1 Under no circumstances will Intelli Messaging be liable to the Customer for any direct, indirect, incidental, lost profits or consequential damages (including but not limited to damages for loss of goodwill, anticipated savings, or use, lost content or data, or other intangible losses) whether under contract, tort, equity, statute or otherwise however occasioned (including due to negligence) arising out of or otherwise in connection with this Agreement.

12.2 Despite anything to the contrary and to the maximum extent permitted by law, Intelli Messaging’s aggregate liability arising from or in connection with this Agreement will be limited to Intelli Messaging resupplying the Services to the Customer or, in any event not exceed the amount of the Fees paid by the Customer in the 12 months preceding the act, omission or event to which the liability relates.

12.3 The liability of Intelli Messaging under this Agreement shall be reduced proportionately to the extent of the Customer’s act or omission or any failure by it to comply with its obligations under this Agreement causes or contributes to the loss or damage suffered.

12.4 The Customer agrees to indemnify and hold harmless Intelli Messaging, its subsidiaries, affiliates, officers, agents and employees from and against any action, claim, loss, damage, cost, expense (including reasonable legal fees on an indemnity basis) or other liability arising out of or otherwise in connection with:

a) the provision of the Services to an End Customer and/or use of the Services in breach of this Agreement;
b) the Customer’s breach of the Spam Act 2003 (Cth) or similar international legislation;
c) the Customer’s breach of the Privacy Legislation and other applicable laws;
d) the Customer’s breach of clause 7 (Customer Responsibilities), including any Inappropriate Content;
e) the Customer’s breach of clause 10 (Confidential Information); and
f) the Customer’s breach of clause 13 (Proprietary Rights).

13. PROPRIETARY RIGHTS
    13.1 The Customer acknowledges and agrees that:

a) Intelli Messaging or its licensors owns all rights, including intellectual property rights, title and interest in and to the technology used to provide the Service, including the Interface Specifications; and

b) Intelli Messaging or its licensors owns and reserves all rights, including intellectual property rights, title and interest in and to the New Materials; and

c) as between the parties, such intellectual property rights will at all times vest, or remain vested, in Intelli Messaging or its licensors. Nothing in this Agreement constitutes a transfer or assignment of such intellectual property rights. To the extent that ownership of such intellectual property rights does not automatically vest in Intelli Messaging, the Customer agrees to do all acts necessary or desirable to assure Intelli Messaging or its licensors title to such rights.

13.2 Intelli Messaging grants the Customer a non-exclusive, non-transferable, revocable licence to use the Interface Specification on the terms and conditions set out in this Agreement. The Customer may use the Interface Specification for the sole purpose of interfacing with and using the Service.

13.3 In relation to the Customer Information:

a) as between the parties, the Customer or its licensors owns all rights, title and interest in and to the Customer information and Data subject to Intelli Messaging’s right to handle, use, store, transmit and otherwise process Customer Information and Data in accordance with this Agreement;

b) Customer grants Intelli Messaging and its group related entities the right to handle, use, store, transmit and otherwise process Customer Information and Data as necessary to provide the Services in a manner consistent with this Agreement; and

c) the Customer represents and warrants that:

(I) it has obtained all necessary rights, releases and permissions to provide or have Customer Information provided to Intelli Messaging and to grant the rights granted to Intelli Messaging in this Agreement; and

(II) the Customer Information (and its transfer to and/or use, collection, storage or disclosure by Intelli Messaging as contemplated by this Agreement) does not and will not violate any laws (including those relating to export control and electronic communications) or the rights of any third party, including any intellectual property rights, rights of privacy, or rights of publicity.

14. ASSIGNMENT

The Customer will not assign, sub-licence or otherwise transfer its rights or obligations under this Agreement or any right granted under it without the prior written consent of Intelli Messaging.

15. WAIVER

No failure to exercise and no delay in exercising any right, power or remedy under this agreement will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy preclude any other or further exorcise of that or any other right, power or remedy.

16. AMENDMENT

Intelli Messaging may update this Agreement from time to time. Intelli Messaging will provide you with written notice of any material updates at least thirty (30) days prior to the date the updated version of this Agreement is effective, unless such material updates result from changes in laws, regulations or requirements from telecommunication providers. Following such notice, your continued use of the Services on or after the date the updated version of this Agreement is effective and binding constitutes your acceptance of the updated version of this Agreement. The update version of this Agreement supersedes all prior versions. If you do not agree to the updated version of this agreement, you must stop using the Services immediately.

17. TERMINATION

17.1 Either party may terminate this Agreement immediately by giving notice in writing of termination if the defaulting Party breaches any provision of this Agreement and does not remedy the breach(es) within 30 days’ of receiving the non-breaching party’s written request to do so.

17.2 Either party may terminate this Agreement for convenience by providing the other party with not less than 30 days’ notice in writing.

17.3 In the event that the Customer terminates this Agreement pursuant to clause 17.2, Intelli Messaging is entitled to any unamortised set-up costs incurred by Intelli Messaging in providing the Services to the Customer under this Agreement (if any).

17.4 Without limiting Customer’s rights under the Australian Consumer Law, any Transaction Credits available at the time of termination are not refundable and are not transferrable.

17.5 Upon expiration or termination of this Agreement:

a) Customer will:

(I) cease use of the Services to the extent permitted under the Agreement and must cease using any other Intelli Messaging materials or resources provided under this Agreement and destroy any and all copies of such Services, materials or resources;

(II) immediately pay Intelli Messaging any outstanding unpaid amounts; and

b) each party will return or destroy (at the other party’s option) any Information of the other party in its possession or control, provided that each party may maintain reasonable copies to the extent required by applicable law or for archiving purposes in accordance with its record retention policies.

18. FORCE MAJEURE

18.1 Except in relation to the Customer’s obligation to pay the Fees, neither party shall be in default by reason of any failure in performance of this Agreement in accordance with its terms, if such failure arises out of causes beyond the control and without the fault or negligence of such party.

18.2 Such causes may include, but are not restricted to, acts of God or of a public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, power or telecommunications failures and freight embargoes but in every case the failure to perform must be beyond the control and without fault or negligence by the party failing to perform.

18.3 The party seeking to rely on this clause 18, must promptly notify the other party upon becoming aware of such an event and must take all reasonable steps to minimise the adverse effects of the force majeure event by which it is affected and which is the subject of a notification under this clause 18.3.

19. ENTIRE AGREEMENT
    This Agreement constitutes the entire Agreement between the parties as to the subject matter of it and supersedes all previous agreements, communications and representations in respect of it.
20. CARRIER TERMS AND CONDITIONS
    20.1 Solely to the extent that such terms and conditions are not expressly inconsistent with this Agreement, the terms and conditions of any carrier for any service used in transmitting any messages sent by Customer using Intelli Messaging are hereby incorporated in full as if same were set out in full in this Agreement.

20.2 Using a Service may depend on the Customer having goods or services supplied by third parties. For instance, in order to use an email-to-SMS Service, you must have an internet connection. The Customer is solely responsible for the costs of all third party goods and services it acquires.

20.3 The Customer warrants that it is not a “Carrier” or a “Carriage Service Provider”.

21. NO AGENCY OR PARTNERSHIP

21.1 The parties are independent contractors. This Agreement does not constitute any party the agent of another or imply that the parties intend constituting a partnership joint venture or other form of association in which any party may be liable for the acts or omissions of another. No party has authority to pledge the credit of another.

21.2 The parties acknowledge and agree that, unless any of their personnel are expressly authorised in writing by the other party, the other party’s personnel do not have any authority to enter into or make any binding contract, arrangement or understanding between them or any other person whether in relation to the supply or sale of, nature, function, performance or availability of Services or any other matter whatsoever.

22. SEVERANCE

Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. Such occurrence will not invalidate the remaining provisions of this agreement nor affect the validity or enforceability of that provision in any other jurisdiction.

23. NO MERGER

The rights and obligations of the parties which are capable of having effect after the expiration of this Agreement will remain in full force and effect following expiration of this Agreement.

24. DISPUTE RESOLUTION

24.1 Both parties will attempt in good faith to resolve any disputes that arise out of or relate to this Agreement promptly by negotiations between senior executives of the parties who have authority to settle this dispute.
24.2 If the dispute cannot be settled between the parties, the parties may seek to settle the dispute by mediation administered by the Australian Commercial Disputes Centre before having recourse to litigation.
24.3 Except where clearly prevented by the area in dispute, both parties agree to continue performing their respective obligations under this Agreement (including the payment of all fees) while the dispute is being solved unless and until such obligations are terminated or expire in accordance with the provisions of this Agreement.
24.4 Nothing in this Agreement prevents either party at any time seeking injunctive or other equitable relief in order to protect its rights.

25. FURTHER ASSURANCES
    Each party shall take all steps, execute all documents and do everything reasonably required by any other party to give effect to any of the transactions contemplated by this Agreement.
26. TAXES

The Customer shall be liable to meet any applicable goods and services tax, consumption tax or value added tax whether currently in force or introduced or increased after the date of this Agreement (and including any costs arising from the retrospective application of any such tax) and any other taxes, duties, fees and charges arising out of the performance of this Agreement. The Customer shall not be entitled to deduct the amount of any such taxes, duties, fees and charges from payments due to Intelli Messaging under this Agreement.

27. GOVERNING LAW
    This Agreement is governed by the laws of New South Wales, Australia. The parties hereby irrevocably submit to the exclusive jurisdiction of courts exercising jurisdiction in the State of New South Wales, Australia.
28. GENERAL

28.1 The Customer agrees to notify Intelli Messaging should the Customer have concerns relating to Intelli Messaging’s performance of the Services and the parties will comply with the dispute resolution mechanism set out in clause 24 (Dispute Resolution).

28.2 In this Agreement, unless the context otherwise requires:

a) words like including and for example are not words of limitation;
b) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
c) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
d) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
e) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
f) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
g) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally; and
h) a reference to $ or dollars refers to the currency of Australia from time to time.

28.3 In the event of any conflict or inconsistency among the following document, the order of precedence will be:
a) DPA;
b) the terms set forth in the body of this Agreement;
c) Acceptable Use Policy; and
d) any other terms incorporated by reference herein or any other schedule, exhibits or documents attached or referred to in this Agreement.