general-conditions

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General Terms and Conditions

1. Background

1.1  These General Provisions apply all to Customers who utilise the services provided by The Message Centre.

1.2  The services to be used by a Customer are selected by the Customer during the Registration Process, and are referred to as the Services” for the purposes of this Agreement. By using the Services, the Customer agrees to being bound by this Agreement.

1.3  During the Registration Process the Customer shall makes other selections relating to other terms, such as:

(a) Minimum Term;

(b) method and timing of payment for the Services.

These selected terms, as well as any other terms selected by the Customer and the pricing relating to the Services selected by the Customer, shall form part of this Agreement between The Message Centre and the Customer.

1.4  The Customer agree and warrant that the Customer have provided true, accurate, current, and complete information about the Customer’s self as requested in the Registration Process, including the Customer’s mobile number.

1.5  The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If the Customer do not qualify, the Customer’s use of the Services is expressly prohibited.

2. Commencement

2.1  This Agreement shall commence on the Commencement Date specified in the Registration Process or when the Customer begins to use the Services, whichever is earlier.

2.2  This Agreement shall continue for the Minimum Term specified in the Registration Process, and thereafter on a month to month basis. 

3. Agreement, Variations and Amendments

3.1  The Services are provided pursuant to the terms and conditions of this Agreement. The Message Centre Anti-Spam Policy, Privacy Policy, and any other guidelines, rules or operating policies that The Message Centre may nominate as included in this Agreement via post on our website or other associated websites or materials from time to time also form part of the terms and conditions of this Agreement.

3.2 The Message Centre may modify or vary the terms of this Agreement and may discontinue, amend, revise or alter any of the Services at its sole discretion, including by posting updated versions of the Agreement on The Message Centre website, or other associated websites or materials or otherwise providing notice to the Customer,

3.3  All such changes shall become effective upon posting of the revised Agreement on The Message Centre website or other associated websites or materials. The Customer’s continued use of the Services will constitute the Customer’s acceptance of the variation to the Agreement or the Services. The Message Centre will use efforts to make the Customer aware of any changes to the terms of this Agreement.

3.4  A Customer may, within 30 days of the changes becoming effective, or 30 days of receiving notice of the changes from The Message Centre (whichever is later) terminate this Agreement by 30 days’ notice in writing to The Message Centre provided that:

(a) the changes are substantial and have a material adverse impact on the Customer’s business; and

(b) the Customer has raised concerns they have about the changes with the Message Centre and engaged in good faith negotiations to agree upon a remedy to their concerns.

4. Payment and Fees

4.1  The fees for each of the Services (“Service Fees”) shall be as specified in Registration Process.

4.2  If the Customer elects to pay using automatic direct debit, the Customer hereby authorizes The Message Centre to deduct any fixed fees from the nominated account in advance of provision of the Services and further deduct any funds payable on a usage basis whenever the Customer use the Services.

4.3  The Customer must ensure that sufficient funds are available in the nominated account to meet a drawing on its due date.  Should a drawing be returned unpaid by the Customer’s financial institution or credit card issuer then an appropriate Declined Payment Fee (determined at The Message Centre’s sole discretion) will be applied to the Customer’s account with The Message Centre from which the drawing was to be applied.

4.4  The Customer must ensure that the authorization given to draw the fees on the nominated account is identical to the account signing instruction held by the financial institution or credit card issuer where the account is based.  It is the Customer’s responsibility to advise us if the account nominated by them to be credited with fees or receive the drawings is transferred or closed.

(a) The Customer must arrange with us a suitable alternate payment method if the direct debit drawing arrangements are cancelled either by the Customer or their nominated financial institution or credit card issuer.

(b) The Message Centre will advise the Customer in writing of the details of the Direct Debit drawing arrangements (rates; frequency; and commencement date). 

(c) Where the due dates for drawings fall on a non-business day, The Message Centre will draw the amount on the next business day.

(d) The Message Centre will not change the amount or frequency of drawing arrangements without the Customer’s prior approval.

(e) The Message Centre reserves the right to cancel the drawing arrangements if three or more drawings are returned unpaid by the Customer’s nominated financial institution or credit card issuer. 

(f) The Customer may terminate the drawing arrangements at any time by giving written notice to The Message Centre.  The termination will take effect from the invoice issue after the termination of these arrangements. 

(g) Where a Customer considers that a drawing has been initiated incorrectly (outside the selections and nominations made by the Customer during the Registration Process) the Customer may take the matter up directly with us, or lodge a claim through their nominated financial institution.         

4.5 Fees are payable in AUD.

4.6  All fees paid to The Message Centre for the Services are non-refundable, save and except that all prepaid Service Fees may be refunded if:

(a) the Customer elects to discontinue this Agreement due to any changes to the Agreement made under clause 3.4;

(b) The Message Company terminates the services other than by reason of the Customer breaching the terms of this Agreement.

4.7  All fees are subject to change at any time. All fees are subject to change and the Customer are responsible for reviewing the Standard Pricing Schedule from time to time and for remaining aware of the fees charged by The Message Centre.  The Message Centre will take all reasonable steps to notify a Customer of any changes to the fees prior to such changes taking effect.

4.8  The Message Centre may charge an Account Suspension Fee (determined at its sole discretion) if it decides to suspend provision of the Services.  The Message Centre is entitled to suspend the Services at its absolute discretion, for reasons including non-payment by the Customer, late or untimely payment by the Customer, concerns that The Message Centre has about the Customer’s actual or potential breach of the Anti-SPAM Policy or Privacy Policy, or any other breach by the Customer of this Agreement. 

4.9  The Message Centre may charge an Account Re-Activation Fee (determined at its sole discretion) should an account need to be re-activated by a Customer after an account has become de-activated.   

4.10  If trading terms are agreed between The Message Centre and the Customer, the following shall apply:

(a) The Customer is not permitted to exceed the Authorised Credit Limit.  If the Customer exceeds the Authorised Credit Limit, The Message Centre may at its sole discretion de-activate the Customer’s account and/or terminate this Agreement.

(b) If the Customer does not pay the fees by the due date for payment and comply with the terms applicable to payment for the Services from time to time, the Customer shall immediately incur and be liable for a Late Payment Fee (determined at its sole discretion).  Interest will be calculated on the Fees owing beyond terms at the penalty interest rate then applicable in the State of Victoria. 

4.11  If The Message Centre incurs a processing fee/s as a result of any payments made by the Customer, irrespective of method of payment, The Message Centre may at its sole discretion charge the Customer the amount of such processing fees (“Processing Fees”) and the Customer must pay that amount to The Message Centre immediately upon request.

5. Authorised Use

5.1  The Services shall be used for the Customer’s internal business purposes only and the Customer shall not use the Services or any Software for service bureau purposes or otherwise for the benefit of a third party.

5.2 The Customer represents, covenants, and warrants that they will use the Services only in compliance with this Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation).

5.3  The Customer hereby agrees to indemnify and hold The Message Centre harmless against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable solicitor or barrister fees) in connection with any claim or action that arises from an alleged breach by the Customer of the Anti-Spam, Privacy Policy or any other policy or guideline binding on the Customer by reason of this Agreement or otherwise arising from or relating to the Customer’s use of the Services.

5.4  The Customer acknowledges that they are responsible for the content of any and all Services, including any information, data or Software utilised to provide or sent using the Services. Although The Message Centre is under no obligation to monitor the content provided by the Customer or the Customer’s use of the Services, The Message Centre may do so and may remove any such content, not use such content or prohibit any use of the Services it believes may be (or is alleged to be) in breach of this Agreement.

5.5  The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates Australian or other laws that may apply in the Customer’s local area is prohibited. This may include material that is obscene, threatening, harassing, libellous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights.

5.6  The Customer will adopt and maintain a policy that complies with all applicable privacy laws and which is at least as stringent as our Privacy Policy (as modified by The Message Centre from time to time).

5.7  The Customer acknowledges that all personal information that the Customer provide to The Message Centre has been collected with the relevant individual’s consent that The Message Centre may store the personal information that the Customer provides to The Message Centre on servers located at the premises of and/or operated by third parties and the Customer warrant that The Message Centre has obtained the consent of the relevant individuals to the storage and transmission of their personal information in this manner.

6. Nature of grant of rights

6.1  This is an Agreement for the Services, and the Customer is not granted a licence to any software under this Agreement (except to the extent required for the Customer to use the Services).

6.2  The Customer acknowledges and agrees that the Services, the Software, The Message Centre company names and logos and all related product and service names (including without limitation the name TEXTR SMS Messaging Services registered with the Australian Securities and Investments Commission), design marks and slogans, and all other material comprising the Software or the Services, are the property of The Message Centre or its suppliers (collectively, the “Marks”). Unless stated otherwise, all Marks are protected as the copyright, trade dress, trademarks (registered or unregistered) and/ or other intellectual properties owned by The Message Centre or by other parties that have licensed their material to The Message Centre.

6.3  The Customer is not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of The Message Centre. The Customer’s use of the Services confers no title or ownership in the Services, the Software or the Marks and is not a sale, disposition or transfer of any rights by The Message Centre in the Services, the Software or the Marks. All ownership rights remain in The Message Centre or its suppliers, as the case may be.

7. Prohibited Conduct

7.1  The Customer will not, directly or indirectly, copy, replicate or reproduce any aspect of the Services or Software which are related to this Agreement.  The Customer agrees not to reverse engineer, decompile, disassemble, or otherwise attempt to discover any Software used as part of the Services, remove any proprietary notices or labels from the Services or any Software, reproduce or copy the Software or the Services or any part thereof, modify, translate, or create derivative works based on the Services or any Software, or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software.

7.2  If the Customer is using the Services in any country in the European Community or Australia, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect the Customer’s rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs or the Australian Copyright Act 1968 (Cth).

7.3  The Customer must not use the Services to distribute illegal contests, pyramid schemes, chain letters, multi-level marketing campaigns, or any other prohibited material.

7.4  The Customer must not use the Services, or otherwise associate with the Services, anything that links with, displays or is suggestive of nudity, obscene content, gambling related content, pay day lender related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that we deem inappropriate.

7.5  The Customer must not use the Services for the sending of unsolicited electronic messages.

8. Authorisations

8.1  In using the varied features of the Services, the Customer may provide information (such as name, contact information, or other registration information) to The Message Centre. The Message Centre may use this information and any technical information about the Customer‘s use of the Services to tailor its presentations to the Customer, facilitate the Customer’s movement through the Services, or to communicate separately with the Customer.

8.2  The Message Centre will not use any of the Customer’s subscriber lists or any other customer information for any other purposes than those related to the Services. The Customer’s customer information will not be shared with any other parties. In addition, the Message Centre will not use the Customer’s customer information for the purpose of sending unsolicited commercial communications.

9. Reselling and Subcontracting the Services

9.1  Reselling and sub-contracting of the Services to third parties is permitted subject to the terms in this clause, and subject to The Customer entering into a separate agreement with The Message Centre, containing further terms relating to the reselling and sub-contracting.

9.2  Access to, and use of, the Services by a third party granted access by the Customer by resale or sub-contracting (“Your Customer”):

(a) does not in any way diminish the Customer’s strict obligation to ensure compliance with the terms of this Agreement; and

(b) does not in any way diminish The Message Centre’s right to enforce the terms of this Agreement, including suspension or termination of access to the Service, whether or not it may have an adverse impact on Your Customer or the ability of Your Customer to use the Services.

10. Termination and Suspension

10.1  Unless this Agreement is for a specified contract duration, The Customer may terminate this Agreement at any time by contacting us or by sending written notice to The Message Centre, 41 Northern Road, Heidelberg West, Victoria, Australia, 3081. Correspondence must include the Customer’s first name, last name, and The Customer’s username. No refunds will be issued if the Customer terminate this Agreement except in accordance with clause 4.6.

10.2  If the Agreement is for a specified Minimum Term, the Customer may only terminate this Agreement during the Minimum Term by paying a Break Fee. The Customer will not be entitled to any refund even if the Customer have unused and prepaid Fees for Services under this Agreement.  At the end of the Contract Duration, this Agreement shall continue to apply on a month by month basis unless terminated by either party with 30 days written notice to the other party.  The parties may enter into a further Minimum Term at any time.

10.3  The Message Centre may terminate this Agreement or the Services at any time with or without cause, and with or without notice. The Message Centre shall have no liability to the Customer or any third party because of such termination.

10.4  If The Message Centre terminates this Agreement because The Customer breached this Agreement or any applicable laws, no refund will be issued even if the Customer have unused and prepaid Service Fees under this Agreement.

10.5  The Message Centre may delete any of the Customer’s archived data within 30 days after the date of termination. Any statutory retention requirements with respect to the Customer’s business records or information remain the Customer’s responsibility.

10.6  If the Customer does not utilise the Services for more than 350 days, the Message Centre may at its sole discretion suspend operation of any Services.  Customers have 30 days after the suspension of their Services to utilise the Services.  In the event that the Customer does not so utilise the Services, The Message Centre may immediately at its sole discretion terminate this Agreement.

11. Warranties, Disclaimers and Remedies

11.1  The Customer shall use the Services, and rely on the Services (including taking action because of such use or reliance) at their own risk.

11.2  To the maximum extent permitted by law, The Message Centre does not warrant that the Services will be uninterrupted, accurate or error free, nor warrant the results that may be obtained from use of the Services. The Services are provided on an “as is” basis and to the extent permitted by law The Message Centre disclaims all warranties, express or implied, in relation to the Services including (but not limited to) implied warranties of merchantability, fitness for a particular purpose and non-infringement.

11.3  The Message Centre makes no guarantee that the Services will be rendered properly, including to the extent applicable, nor that the technologies or technology platforms utilised by The Message Centre (particularly where they are licensed from third parties) function in accordance with either representations made by The Message Centre or where applicable as represented by the third parties.  The Message Centre makes every reasonable attempt to ensure its technologies and technology platforms follow generally accepted industry standards.

11.4  The Customer’s sole and exclusive remedy for any failure or non-performance of the Services shall be for The Message Centre to use commercially reasonable efforts to adjust or repair the Services, or where such adjustment, remedy or repair is not feasible, for The Message Centre to either (at its sole discretion) perform the Services again or provide the Customer with a refund for the amount the Customer actually paid to The Message Centre for the relevant Services.

12. Limitation of Liability

12.1  To the maximum extent permitted by law, under no circumstances shall The Message Centre or any of its suppliers, subsidiaries,  business partners, information providers, account providers, licensors, employees, distributors or agents (collectively referred to for purposes of this section as “The Message Centre Parties“) be liable to the Customer or any other person for any loss or damage (including but not limited to direct, indirect, exemplary, special, incidental, cover, reliance or consequential damages, loss of profits or revenue, business interruption, loss of data, or failure to realise anticipated savings or benefits or business opportunities), arising directly or indirectly from  the provision or use of the Services.

12.2  The Message Centre Parties’ exclusion of liability applies whether the claim is in contract, tort (including without limitation, negligence) or equity and even if The Message Centre has been notified of the possibility of such loss or damage.

12.3  Any representation, consumer guarantee, warranty, condition or undertaking that would be implied in the Agreement or under the Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by the Australian Consumer Law and all other applicable law.

12.4  The Customer agree that The Message Centre Parties liability to the Customer at law will be reduced by the extent, if any, to which the Customer contributed to the loss.

12.5  In the event that, notwithstanding the foregoing, The Message Centre Parties are found liable to The Customer for damages from any cause whatsoever, and regardless of the form of the action (whether in contract, tort (including negligence), product liability or otherwise), to the fullest extent permitted by law the liability of The Message Centre to the Customer will be limited to:

(a) In the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of saving the goods repaired; and

(b) In the case of Services, the supplying of the Services again or the payment of the cost of having the Services supplied again or refund of fees actually paid for the Services.

12.6  The Services may contain materials produced by third parties or include links to other websites. Such materials and websites are provided by third parties and are not under The Message Centre’s direct control and The Message Centre accepts no responsibility or liability in respect of any such third party materials or for the operation or content of other websites (whether or not linked to the Services). The Customer acknowledge that The Message Centre is entitled to require the Customer to remove any link from another website to the Services which the Customer install without obtaining The Message Centre’s prior written consent.

12.7  If the Customer has elected direct debit or are currently the subject of direct debit arrangements with The Message Centre, the Customer hereby releases and forever discharges The Message Centre from any and all liability to the Customer for any losses of any kind that the Customer may suffer relating to or arising out of the direct debit arrangements, including without limitation all consequential losses suffered by the Customer (including but not limited to loss of revenue or economic loss, loss of profit, loss of anticipated savings or business, loss of data or good will, claims by third parties and costs and expenses associated with or incidental to any such losses) from any act or omission by The Message Centre in complying or intending to comply with a direct debit request from the Customer. 

12.8  The Message Centre’s liability to the Customer for any and all losses suffered by the Customer as a result of any act or omission by The Message Centre in complying or intending to comply with a direct debit request from the Customer is limited to debiting to the Customer’s nominated account correctly and refunding the Customer any amounts that we have wrongfully debited from the Customer’s nominated account.  The Customer acknowledges that The Message Centre is not in any way liable to the Customer or to any third party for, and hereby release and forever discharge The Message Centre from, any claims against The Message Centre resulting from the Customer’s acts or omissions or the acts or omissions of any third party and the Customer agrees to indemnify The Message Centre for any losses that The Message Centre may suffer as a result of any claims made against it.

13. Export or international sharing of data

13.1  Technical Data - The Customer may not remove or export from Australia or allow the export or re-export of the Services, or any direct product thereof, including technical data, in breach or violation of any restrictions, laws or regulations of Australia and all other applicable countries.

13.2  Personal Data - The Customer hereby consents to The Message Centre transferring or sharing access to data which is subject to the The Message Centre Privacy Policy to Related Bodies Corporate of The Message Centre or The Message Centre’s suppliers (or their employees, contractors or agents) (“Overseas Persons”) that are located outside Australia, provided and subject to the Overseas Persons:

(a) being required to implement and implementing an internal policy and/or arrangements with their staff and contractors for the protection of the privacy and non-disclosure of the Customer’s data which is/are the same or more-protective of such data than that provided by the Privacy Policy of The Message Centre, and

(b) being subject to binding and enforceable obligations to The Message Centre to comply and enforce such any such internal policy or arrangements.

14. Privacy

The Customer shall comply with the Privacy Policy of The Message Centre as amended from time to time.  The Privacy Policy is located on The Message Centre website.

15. Guarantee

a) In this clause, the “Guarantor” means the person or persons who have as part of the Registration Process agreed to personally guaranteed payment of the Guaranteed Money.  “Guaranteed Money” means any monies that at any time for any reason or circumstance in connection with this Agreement are payable by the Customer. 

b) The Guarantor/s unconditionally and irrevocably guarantees payment to The Message Centre of the Guaranteed Money.

c) If any Guaranteed Money is not paid within the agreed terms, the Guarantors agrees to pay the Guaranteed Money to The Message Centre.

d) This Guarantee under this clause is a continuing obligation and extends to all the Guaranteed Money.  The Guarantor/s must pay The Message Centre for the reasonable costs of The Message Centre enforcing or attempting to enforce or taking any other action in connection with this Guarantee.

e) The Guarantor/s must pay the Guaranteed Money in full without set off, counterclaim or deduction.      

f) The Guarantor/s must pay the Guaranteed Money by 12 noon on the date specified by The Message Centre on the demand for payment.

g) The Guarantor/s must indemnify The Message Centre and pay The Message Centre on demand for liability, loss or costs (including consequential or economic loss) The Message Centre suffers if the Customer default under this Guarantee.

h) The Message Centre may exercise a right or remedy or give or refuse their consent in any way it considers appropriate, including by imposing conditions, and may claim against the Guarantor/s before enforcing other rights and remedies, whether arising under this Agreement or otherwise.

i) If The Message Centre does not exercise a right or remedy fully at a given time, it may still exercise it later. The Message Centre is not liable for any loss caused by the exercise or attempted exercise of, or failure to exercise a right or remedy whether or not caused by The Message Centre’s negligence.

j) The Message Centre’s rights and remedies under this Guarantee are in addition to any other rights and remedies provided by law independently of this Guarantee.

16.   Anti-SPAM Policy

The Customer shall comply with the Anti-Spam Policy of The Message Centre as amended from time to time.  The Anti-Spam Policy is located on The Message Centre website.

17. Miscellaneous

17.1 Unenforceable or invalid clauses - If any clause, sub-clause or part thereof in the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

17.2  Entire agreement - The Message Centre and the Customer agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement.

17.3  Waivers - The Message Centre and the Customer agree that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.

17.4  No other relationships - No agency, partnership, joint venture, or employment is created as a result of the Agreement, and the Customer do not have any authority of any kind to bind The Message Centre in any respect whatsoever.

17.5  Cost recovery - In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.

17.6  Governing laws - The Agreement shall be governed by the laws of the State of Victoria Australia without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Melbourne, Victoria, Australia.

17.7  Force Majeure – The Message Centre will not be liable by reason of the failure in the performance of obligations under this Agreement by reason of strikes, riots, fire, explosions, acts of God, war, governmental action, or any other cause which is beyond The Message Centre’s reasonable control.

17.8  Rights not expressly granted - All rights not expressly granted are reserved.

17.9 Survival - All clauses of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership (clause 6.2 and 6.3), warranties (clause 11), disclaimers and limitations of liability (clause 12).

18. Definitions

For the purposes of this Agreement:

“Customer” or “The Customer” means the person (including a corporation, partnership, trust or any other form of legal entity whatsoever) specified in, and the details of which are provided to, The Message Centre as part of the Registration Process.

“Related Bodies Corporate” has the meaning in the Australian Corporations Act (Cth).

“Software” means source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services.

“The Message Centre” means The Message Centre Pty Ltd (ACN 132 414 656) and includes its directors, employees, sub-contractors and agents, as well as its Related Bodies Corporate.

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