Intelli Messaging – Terms and Conditions of Use

By using the messaging services or by creating an account in the Intelli Messaging SMS and MMS Web Application (IMWA) gateway the you agree to the following terms and conditions.

1. TERM This Agreement commences upon the date of provisioning of an account with IMWA and terminates by writing notice from the customer of the cancellation of the account.

2. SERVICE In consideration of the Transaction Fee, Smart Messaging Services will provide the Service to the Customer via the Gateway on the terms and conditions set out in this Agreement.

3. ACCESS TO THE SERVICE Smart Messaging Services will endeavour to provide the Customer with a password within one hour of the complete request to create an account form the internet application form. Account will only be created if the terms and conditions are agreed to. Message credits are required be purchased prior to the system allowing messages to be sent.

4. SENDING SMS MESSAGES

4.1 Maximum Character Limit: The Customer may send SMS Messages via the Gateway provided that each SMS Message has a maximum of 160 Characters.

4.2 Maximum SMS Messages sent per second: Smart Messaging Services will send up to a maximum of five (5) SMS Messages per second per customer.

4.3 Maximum SMS Message per send Document Maximum number of messages in a send document is limited to 1000.

5. DELIVERY OF SMS MESSAGES

5.1 Delivery: Subject to clause 8 and 17, Smart Messaging Services will deliver the SMS Message sent by the Customer from the Gateway to the mobile GSM network.

5.2 Out of scope: Smart Messaging Services 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 provider.

6. CUSTOMER RESPONSIBILITIES

6.1 Service Suspension: Smart Messaging Services may suspend access to the Service for a particular period or may terminate the Agreement immediately upon giving notice if the Customer uses the Service:

(a) unlawfully; or

(b) in contravention of a relevant industry or government code; or

(d) in a manner that does not comply with “SMS guideline for commercial message originators” in Australian Communications Industry Forum (ACIF) Industry Code C580. Relevant sections of this code can be found in the Schedule

6.2 Liability for use: The Customer agrees that it is liable for the destination, content and timing of SMS messages that are sent using the Service.

6.3 Prepayment of Accounts: The customer must pre-purchase message credits to be able to send messages. Once a customer runs out of credits the gateway will stop further messages being sent until such time as the customer pays for new credits and the credits are provisioned within the gateway. On the creation of an account by the customer IMWA will automatically be configured to send low credit warning to customer via email.

6.4 Subscriber Opt-In/Opt-Out Requirements.

The Customer will send Messages only to Subscribers who have consented or “opted-in” to receiving the Messages. Customer will stop sending messages to a Subscriber who has “opted-out” from receiving such Messages as soon as possible but in no case later than twenty four (24) hours after receipt of the opt-out request (or any shorter time period if necessary to meet or comply with any legal, regulatory, governmental or Network Operator request or requirement).

The Customer will, within twenty-four (24) hours of receiving a written request from the Company, provide the Company with proof of Subscriber opt-in requests, opt-out requests and/or Customer’s response time for discontinuing the provision of Messages to the Companies satisfaction.

Customer agrees to keep such records during the term of this Agreement and for one (1) year thereafter. The Company shall act as a passive conduit only, and Customer will be solely responsible for its messages it sends to its subscribers.

The Customer agrees that the Company exercises no control whatsoever over the Content and Messages and is a passive conduit in transmitting and handling Content and Messages. The Customer shall bear sole responsibility for (i) the Content transmitted using the Services.

6.5 The Customer will not use the SMS Services or permit the SMS Services to be used to transmit Inappropriate Content. For purposes of this Agreement, “Inappropriate Content” will mean any Content that:

(i) is unsolicited, including without limitation, “junk mail,” “bulk e-mail”, spam or other unsolicited advertising material;

(ii) causes the introduction of “viruses,” “worms,” “Trojan horses,” “e-mail bombs,” “cancelbots” or other similar destructive computer programming routines into the Sybase Network or Subscribers handsets;

(iii) that violates any legal, regulatory, governmental or Network Operator Conditions or codes of practice;

(iv) is obscene, offensive, threatening, defamatory, discriminatory, misleading or inaccurate; or

(v) infringes the intellectual property of any person or entity

7 CUSTOMER DATA

7.1 In transmitting the Customer’s SMS Messages from the Gateway to the mobile GSM network, the Customer acknowledges and agrees that Smart Messaging Services may either review or disclose the content of such SMS Messages transmitted as reasonably necessary to:

(a) comply with legal process;

(b) enforce the terms and conditions of this Agreement;

(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 Smart Messaging Services, its users, or the public.

7.2 Smart Messaging Services 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.

7.3 The privacy policy covers how Smart Messaging Services protects the privacy of personnel account information with the system.

8. TRADING TERMS

8.1 Payment of the Transaction Fee and other fees The Customer will pay the Transaction Fee and any additional fees in the manner set out within their member area on the website.

9 CONFIDENTIAL INFORMATION

9.1 For the purposes of this Clause 9 “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.

9.2 Each Party (“Receiving Party” for the purposes of this Clause 9) 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.

9.3 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

(d) was independently developed by personnel of the Receiving Party.

9.4 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.

9.5 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.

9.6 The obligations set forth in this Clause 9 survive termination of this Agreement

9.7 This Clause 9 does not prevent Smart Messaging Services from disclosing the existence of this Agreement to third parties for the purposes of marketing to customers and potential customers.

10. WARRANTIES

10.1 To the extent permitted by law, the Customer understands and agrees that the Service is provided on an “as is” basis and that Smart Messaging Services makes no warranties or representations of any kind. Nothing in this Agreement shall be construed as a representation, warranty or guarantee by Smart Messaging Services

10.2 If any condition or warranty is implied into this Agreement by the Trade Practices Act 1974 (Cth), the various Fair Trading Acts or any other applicable legislation for the time being in force which cannot be excluded by agreement, the liability of Smart Messaging Services for breach of any such implied condition or warranty shall be limited, at the option of Smart Messaging Services, to the re-supply of the Service or the payment of the costs of having the Service supplied again.

11 LIMITATION OF LIABILITY

11.1 Subject to clause 11.2, under no circumstances will Smart Messaging Services’ liability to the Customer for any direct, indirect, incidental, lost profits or consequential damages (including but not limited to damages for goodwill, anticipated savings, or other intangible losses and whether under contract, tort, equity, statute or otherwise) however occasioned (including due to negligence) arising out of or otherwise in connection with this Agreement, exceed the fees paid by the Customer for the Services in the calendar month in which the relevant cause of action accrued.

11.2 The liability of Smart Messaging Services 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.

11.3 The Customer agrees to indemnify and hold harmless Smart Messaging Services, its subsidiaries, affiliates, officers, agents and employees from and against any action, claim, loss, damage, cost, expense (including reasonable legal fees) or other liability arising out of or otherwise in connection with the provision of the Service.

12. PROPRIETARY RIGHTS The Customer acknowledges and agrees that Smart Messaging Services or its licensors owns all intellectual property rights in the technology used to provide the Service.

13. 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 Smart Messaging Services.

14. 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.

15. AMENDMENT This Agreement may be amended only by another agreement, signed by authorised representatives of both parties. The parties may amend the Schedule to this Agreement according to the following procedure: –

(a) the parties must agree in writing to the new Schedule;

(b) the new Schedule must replace the whole of the old Schedule; and

16. TERMINATION

16.1 Either party may terminate this Agreement immediately by giving notice in writing of termination if the defaulting breaches any provision of this Agreement.

16.2 either party may terminate this Agreement by providing the other party with not less than 30 days’ notice in writing. In the event that the Customer terminates this Agreement pursuant to this clause during the Initial Term, the Customer will pay 50% of the fees outstanding for the remaining portion of the Initial Tem.

16.3 Message credits at the time of termination are not refundable.

17. FORCE MAJEURE

17.1 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.

17.2 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.

17.3 The party seeking to rely on this Clause 17, 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 17.3.

18. 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.

19. NON-EXCLUSIVITY This Agreement does not limit the rights of either party to enter into agreements for the provision of services or software of a similar nature with other parties.

20. NO AGENCY OR PARTNERSHIP

20.1 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.

20.2 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.

21 GOVERNING LAW This Agreement is governed by the laws of Victoria Australia. The parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction there.

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 Smart Messaging Services under this Agreement.

DEFINITIONS

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

“Gateway” means the Smart Messaging Services messaging servers accessed through the defined Interface Specifications.

“Notification Fee” means the fee for notification set out in the Schedule.

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

“SMS Messages” means short text messages sent via the Gateway to a mobile phone on Australian GSM networks.

“Initial Term” means the initial term of this Agreement as referred to in the Schedule.

“Transaction Fee” means those fees payable for the Service as set out in the Schedule.

SCHEDULE

Extract from the INDUSTRY CODE Short Message Service (SMS) Issues

Note: The numbering below does not relate to numbering of terms and conditions page.

5.1 Sending of Suppliers Marketing Messages

5.1.1 Recognised Identifier

A Supplier must include a Recognised Identifier in all its Marketing Messages. The Recognised Identifier must be in a form which reasonably enables a Recipient to identify or directly contact the Message Originator or Supplier.

5.1.2 Prohibition of Marketing Messages

A Supplier must not send its Marketing Messages to Recipients unless:

(a) the Recipient has requested the Marketing Message;

(b) the Recipient has provided the Supplier with prior consent to send such Marketing Messages; or

(c) the Supplier complies with the provisions of Clause 2.1 (a) or Clause 2.1 (c) of the National Privacy Principles, as contained in Schedule 3 of the Privacy Act 1988.

5.1.3 Recipient’s Right to Opt-out

A Supplier must implement an appropriate means of allowing the Recipient to notify the Supplier not to send further Marketing Messages to the Recipient. The means must be:

(a) easy to use by the Recipient;

(b) minimise any inconvenience; and

Example: provision of a free call number.

5.1.4 Compliance with Opt-out Notices

A Supplier must comply as soon as practicable with any notice it receives under Clause 5.1.3 and not send further Marketing Messages to the Recipient unless and until the Recipient requests or consents to receiving further Marketing Messages. Typically, this should be possible within 48 hours.

5.2 Enforcement of SMS Guideline

5.2.1 A Supplier which supplies SMS services to Message Originators for commercial purposes must:

(a) provide a copy of the SMS Guideline to each Message Originator to whom the Supplier supplies SMS services for commercial purposes; and

(b) inform each Message Originator that, unless it complies with the SMS Guideline, the Supplier may be required under this Code to withdraw supply of the SMS service to the Message Originator.

5.2.2 If a Supplier reasonably believes a Message Originator has not complied with the SMS Guideline, the Supplier must, at a minimum:

(a) in the case of a single contravention or one of a minor nature, write a letter to the Message Originator pointing out the requirements for the Message Originator to comply with the SMS Guideline; and

(b) in the case of a systemic contravention, write a formal letter warning the Message Originator that if it does not comply with the SMS Guideline, the Supplier may suspend or terminate the supply of SMS services.

5.2.3 Where a Message Originator has not complied with a formal warning issued under Clause 5.2.2(b), a Supplier must consider taking appropriate action, which may include suspension or termination of SMS services to that Message Originator.

5.3 Exclusions from Marketing Messages Rules

5.3.1 Service-Related Messages

Clauses 5.1.2 to 5.1.4 of the Code do not apply to Service-Related Messages sent by a Supplier via SMS to its customers.

5.3.2 Health, Safety and Law Enforcement Messages

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Intelli Messaging – Terms and Conditions of Use