Terms and Conditions

1 - directSMS' SMS Services

1.1 directSMS will provide directSMS' SMS Services to you on the terms set out in this agreement and on directSMS' website.

1.2 If there is any inconsistency between this agreement and the website, the website will prevail.

1.3 directSMS reserves the right to change or withdraw directSMS' SMS Services at anytime.

2 - Payment

2.1 You agree to pay the charges for directSMS' SMS Services as set out on directSMS' website and/or the applicable pricing structure, as amended from time to time.

2.2 Payment will be made upon sale of and prior to receipt of SMS credits under your account.

2.3 directSMS' records are conclusive evidence of the amount payable and credits purchased. These records are sufficient to determine the customer's purchases and use of SMS messaging irrespective of receipt.

2.4 You agree to pay all charges for your use of directSMS' SMS Services.

2.5 directSMS reserves the right to change process or institute new charges for access of any directSMS service at any time without notice to customers. It is the customer's responsibility to be advised of any changes.

2.6 The customer is liable for all reasonable expenses and legal costs incurred by directSMS for enforcement obligations and recovery of moneys due from the customer under this agreement.

3 - Website Conditions of Use

3.1 directSMS grants you a licence to access and use the web site for the sole purpose of accessing and using directSMS' SMS Services, subject to the terms of this agreement.

3.2 Only personnel authorised by you ("authorised personnel") may access and use directSMS' SMS Services.

3.3 You must take all reasonable steps to ensure that your access information and the access information of ("authorised personnel") is not disclosed to a third party or compromised in any way.

3.4 You must comply with, and ensure that your personnel comply with, your obligations under this agreement.

4 - Customer's Obligations

4.1 You must provide all information and assistance as is reasonably required by directSMS in order to enable directSMS to meet its obligations under this agreement.

4.2 You are responsible for obtaining and maintaining the telecommunications services necessary to access and use directSMS' SMS Services.

4.3 You must not do, or permit your personnel to do, anything reasonably likely to impair, interfere with or damage directSMS' SMS Services or its operation.

4.4 You must not and must ensure that your personnel do not:
(a) Use directSMS' SMS Services for any illegal purpose or in a way contrary to any law, including commonwealth, state and territory legislation, voluntary or involuntary codes of conduct or industry codes, including those relating to gaming, advertising and privacy;
(b) Tamper with, hinder the operation of or make unauthorised modifications to directSMS' SMS Services;
(c) Delete another's data from directSMS' SMS Services without permission;
(d) Use directSMS' SMS Services to menace or harass any person or cause damage or injury to any person or property;
(e) Represent (by act or omission) that directSMS created, endorses, has reviewed, or is in any way involved in the production of content sent by you using directSMS' SMS Services;
(f) Use directSMS' SMS Services to impersonate another person or entity; Or
(g) Send, in the form of an SMS or other message, a marketing message to any person unless:
(i) The recipient of the SMS or other message (as the case may be) has first consented to receiving the marketing message; And
(ii) The recipient is provided with a means to opt-out of receiving such a marketing message; And
(iii) The marketing message includes a clear identification within the marketing message of the source or originating entity of the marketing message to enable the recipient to determine who sent the marketing message.
(h) Use the service for a purpose that may be regarded by a reasonable person as offensive;
(i) Use the service to infringe any third party rights, including intellectual property;
(j) Use the service in a way that may result in the misuse of a third party's confidential information;
(k) Affect the availability of directSMS' SMS Services to other directSMS customers;
(l) Use of our service in a way that results in a "virus" or similar program being sent through directSMS' SMS Services facilities; Or
(m) Use, or facilitate the use of, the service in any way for an emergency service purpose.
(n) The customer acknowledges that the internet may contain viruses (including other destructive programmes) which may, if not eliminated, destroy parts or all data contained within our data base, and that directSMS has no control over these viruses.
(o) directSMS does not provide a filtering or checking of data to eliminate viruses, and customers agree to provide their own mechanism for checking for viruses, and not hold directSMS liable for any damage caused by viruses.

4.5 You must report all directSMS' SMS Services' problems to the support team/help desk (support@directsms.com.au) as soon as you become aware of such fault or problem. you must not attempt to rectify or permit any other person to attempt to rectify such fault. If you or a third party interferes with directSMS' SMS Services, with or without directSMS' written approval, directSMS will not be liable for any damage to, or the costs and expenses of rectifying, directSMS' SMS Services. These costs and expenses must be borne by you.

4.6 The customer acknowledges that the internet is an inherently insecure system and undertakes responsibility for the protection of their information and data.

5 - Third Party Software

You are solely responsible for obtaining, maintaining and using any third party software used to access and/or use directSMS' SMS Services and ensuring that such third party software and any person's use of that third party software;
(a) Is lawful;
(b) Complies with the terms of this agreement; And
(c) Does not disrupt the proper functioning of directSMS' SMS Services for you or any other person.

6 - directSMS' Obligations

6.1 You acknowledge that:
(a) The provision of directSMS' SMS Services by directSMS will not be continuous or fault free; And
(b) SMS messages may not be successfully terminated, error free, or terminated in a timely manner, on an end-user's handset (including SMS sent to mobile phones with end users subscribed to international telecommunications carriers); And

6.2 You agree that directSMS (including their directors, officers, employees, agents, contractors, successors or assignees) will not be liable for any loss or damage caused as a result of delays in the sending of SMS or a failure to terminate SMS for any reason.

7 - Free Trial

7.1 directSMS may allow you to use directSMS' SMS Services for a limited time without charge ("free trial"). Subject to any terms notified by directSMS to you, if directSMS offers you a free trial you will be allowed full access to directSMS' SMS Services for the number of days and number of SMS messages notified to you and you will be allowed to send the specified SMS messages without charge during that time.

7.2 If you accept a free trial offer you will be bound by all of this agreement, except for the obligations regarding payment set out in clause 2.

8 - Confidentiality

8.1 You must not disclose directSMS' confidential information and directSMS must not disclose your confidential information except:
(a) With directSMS' or your consent (as the context requires);
(b) If disclosure is required by law
(c) If disclosure is in connection with legal proceedings relating to this agreement.

8.2 A party who has received confidential information from the other under this agreement must, on the request of the other party, deliver to that party within a reasonable time frame all documents or other materials containing or referring to that information which are in its possession, power or control or in the possession, power or control of persons who have received confidential information from it under clauses 8.1(a) or 9.1(b).

8.3 You acknowledge that a breach of this clause 8 may cause directSMS irreparable damage for which monetary damages would not be an adequate remedy. Accordingly, in addition to other remedies that may be available, directSMS may seek and obtain injunctive relief against such a breach or threatened breach.

9 - Privacy

9.1 Notwithstanding any other provision of this agreement, the customers must at all times comply with privacy laws in relation to personal information, whether or not customer is an organisation bound by the privacy act 1988. If customer is a small business operator under the privacy act, then customer agrees to choose to be treated as an organisation bound by the privacy act in accordance with section 6ea of the privacy act during the term of this agreement.

Use and disclosure of personal information
9.2 Customer must:
(a) Use personal information only for the purpose of fulfilling your obligations under this agreement;
(b) Not disclose personal information except:
(i) To an officer, employee of customer to the extent necessary for the purpose of fulfilling your obligations under this agreement;
(ii) As required by law, subject to customer notifying directSMS immediately if you become aware that such a disclosure may be required; Or
(iii) With the prior consent of directSMS; And
(c) Ensure that any person to whom personal information is disclosed under clause 9.2(b)(i), does not do or omit to do anything which, if done or omitted to be done by customer would constitute a breach of this clause 9;
(d) Collect, store, use, disclose or otherwise deal with the personal information as directed by directSMS, except to the extent that compliance with the direction would cause customer to breach a privacy law; And
(e) Provide all assistance required by directSMS to assist directSMS in complying with its obligations under any privacy law.

9.3 directSMS reserves the right to display the customer's logo on its website and other literature unless otherwise stated by the customer in writing.

10 - Warranties

10.1 directSMS does not warrant that SMS messages will be successfully terminated or that any such termination will be fault free.

10.2 You warrant that:
(a) You are duly authorised and have obtained all necessary consents, licences, permits and approvals to use directSMS' SMS Services and comply with your obligations under this agreement;
(b) You are not in breach of any undertaking, obligation or arrangement (whether written or otherwise) or in breach of any law in entering into this agreement; And;
(c) The use of third party software in connection with directSMS' SMS Services does not breach any undertaking, obligation or arrangement (whether written or otherwise) or any law.

11 - Indemnity

11.1 You indemnify, and will keep indemnified, directSMS and its personnel (directors, partners & associates) from and against any liability, loss, damage, costs or expenses incurred or suffered by directSMS or its personnel arising directly or indirectly from or in connection with:
(a) The storage, transmission, display, operation, failed operation or publication of messages by you, your personnel or your customers;
(b) Any breach of this agreement by you;
(c) Any penalty imposed under any applicable law, regulation, standard or voluntary or involuntary code of conduct or industry standard relating to your performance of this agreement;
(d) Any act by or omission of you or your personnel;
(e) Access to or use or misuse of directSMS' SMS Services by you;
(f) Access to or use or misuse of third party software by any person in connection with the service; And
(g) Any use by, or facilitated by, you or your personnel of the service to send or receive an SMS for an emergency service purpose.

11.2 Each indemnity in this agreement is a continuing obligation, separate and independent from the other obligations of the parties and survives termination of this agreement.

11.3 It is not necessary for directSMS to incur expense or make payment before enforcing a right of indemnity conferred by this agreement.

12 - Liability

12.1 Except as expressly provided to the contrary in this agreement and to the full extent permitted by law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the provision of directSMS' SMS Services or otherwise relating to this agreement are excluded.

12.2 Where any act of parliament implies in this agreement any term, and that act voids or prohibits provisions under a contract which exclude or modify the operation of such term, such term is deemed to be included in this agreement. however, directSMS' liability for breach of such term will be, if permitted by law, limited to one of the following remedies (at directSMS' option):
(a) If the breach relates to services:
(i) The re-supply of the services; Or
(ii) The payment of the cost of re-supplying the services; 12.3 Except as required by the trade practices act 1974, directSMS is not liable in tort, contract, or otherwise for any loss of profits, income, data, goodwill, business or anticipated savings or any other direct, indirect or consequential loss or damage.

13 - Term and Termination

13.1 This agreement between you and directSMS will begin when you register as user on directSMS' website until terminated under clauses 13 and 14.

13.2 directSMS may terminate this agreement at any time with or without cause.

13.3 direcSMS may terminate this agreement without notice and without incurring any liability or penalty if directSMS considers that you may be in breach of terms of this agreement.

13.4 You may terminate this agreement at anytime by not purchasing any further credit. purchased credit will not be refunded under this agreement. all sales are final.

13.5 The termination of this agreement for any reason will not prejudice any rights which have accrued to either party prior to the date of termination.

13.6 Any expiration or termination of this agreement does not affect:
(a) The rights and obligations of the parties under clause 8 (confidentiality) and clause 11 (indemnity). The following also applies

13.7 Once your agreement is terminated, your right to use directSMS' SMS Services ceases. directSMS shall have no obligation to maintain any content in your account. you agree that termination of you access may be effected without any prior notice to you.

14 - Suspension of directSMS' SMS Services

14.1 Without limiting any of directSMS' other rights or remedies under this agreement and otherwise, directSMS may suspend the provision of all or part of directSMS' SMS Services at any time:
(a) If you breach clause 4.4, clause 9 or clause 10;
(b) If you breach any term or condition of this agreement other than clause 4.4, clause 9 or clause 10 and fail to remedy that breach within a period of 14 days of directSMS notifying you of the breach and requiring rectification;
(c) If a change event occurs and suspension is necessary to ensure compliance with any notice, direction, declaration, order, directive, judgment, code or standard the subject of the change event;
(d) In the event of an emergency or whenever directSMS considers it necessary or reasonable in order to safeguard provision of directSMS' SMS Services to emergency and other essential services.

15 - Tax

15.1 All charges will be inclusive of goods and services tax (GST) where applicable, or as required by law.

15.2 directSMS will provide an electronic tax invoice to you.

15.3 Where, under the terms of this agreement, one party is required to indemnify another, the amount by which the indemnifying party indemnifies the other party does not include any amount for which the indemnified party (or an entity grouped with the indemnified party for GST purposes) has claimed, or is entitled to claim, an input tax credit under the GST act.

16 - General Assignment

16.1 You must not assign any of your rights or obligations under this agreement unless directSMS gives you prior written consent.

16.2 directSMS may novate, or assign any or all of its rights and obligations under, this agreement without your consent.

Variation:
16.3 Subject to clause 3.1, directSMS may vary the terms of this agreement at any time upon 10 days notice to you.
16.4 You may not vary the terms of this agreement without directSMS' written consent.

Waiver:
16.5 Waiver of a breach of this agreement, or of any rights created by or arising upon default under this agreement can only be affected in writing and must be signed by the party granting the waiver.
16.6 A breach of this agreement is not waived by a failure to exercise, a delay in exercising, or a partial exercise of, any remedy available under this agreement or in law or equity.

Entire agreement:
16.7 This agreement and the pricing structure on directSMS' website constitute entire agreement between you and directSMS in respect of directSMS' SMS Services.
16.8 In the event that any provision of these terms and conditions proved to be illegal or unenforceable that provision is deemed to be omitted from this agreement without affecting the legality of the remaining provisions. The remaining provisions of the terms and conditions shall continue in full force and effect.

Force majeure:
16.8 Despite any other provision of this agreement, no party need act if it is impossible to act due to any cause beyond its control (including war, riot, natural disaster, labour dispute, or law taking effect after the date of this agreement). This clause does not excuse a party from a failure to pay any money which it is obliged to pay.

Survival of clauses:
16.9 The obligations of confidentiality under clause 8, the relevant payment and security obligations under clauses 2 and 9 and the indemnities in clause 11 survive the expiration or termination of this agreement for any reason.

Subcontracting:
16.10 directSMS may subcontract any of its obligations under this agreement to a third party without notice to you and without your consent.

Notices:
16.11 Except as otherwise set out in this agreement, all notices or communications, including permission or consents given pursuant to this agreement by one party to the other:
(a) Must be in writing;
16.12 If either party notifies the other of a different postal address or facsimile number then notices, approvals, and consents must be sent to that address or facsimile number.
16.13 A notice, approval or consent takes effect from the time it is received unless a later time is specified on it.
16.15 directSMS may notify (and is taken to have notified) you of scheduled outages by making a notice available to you. You acknowledge that directSMS' notifications of scheduled outages are made to all of directSMS' customers and that it is the responsibility of you to determine whether a scheduled outage will affect you.

Governing law:
16.16 This agreement is governed by the law in force in New South Wales.
16.17 Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and courts of appeal from them for determining any dispute concerning this agreement or the transactions contemplated by this agreement. Each party waives any right it has to object to an action being brought in those courts including claiming that the action has been brought in an inconvenient forum or that those courts do not have jurisdiction.

17 - Reselling and Subcontracting the Services

Reselling of the Services to third parties is permitted subject to the following conditions:

17.1 Access to, and use of, the Services by a third party granted access by you ("Your Customer"):
1. Does not in any way diminish your strict obligation to ensure compliance with the terms of this Agreement; and
2. Does not in any way diminish directSMS's right to enforce the terms of this Agreement, without liability to you or the Customer, 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.

17.2 You must:
1. Enter into a binding contractual relationship with Your Customer on terms no less onerous than this Agreement including, without limitation, the directSMS Anti-Spam Policy;
2. Make available to Your Customer a Privacy Policy that complies with your local law and is no less onerous in terms of your obligations to Your Customer than directSMS's Privacy Policy is in relation to the Customers of directSMS; and
3. Provide all customer relationship management, including first level support services in relation to the Services, to Your Customer.

17.3 You hereby agree to indemnify and hold harmless, on an actual indemnity basis, directSMS, from and against all costs, expenses, losses and liabilities arising in any way (including under statute, the law of tort, equity or any other theory of law whatsoever) from or in relation to use of the Services by Your Customers and all other acts and omissions of Your Customers otherwise taking place on or in relation to the Services.

17.4 directSMS does not charge an additional fee for use of the Service by Your Customers. directSMS will deduct its standard fee and remit to you the balance of all payments received from Your Customers.

18 - Compliance Rules For Sending SMS Messages (And Your SPAM Indemnity)

18.1 All directSMS customers must follow the rules of the Australian Spam Act 2003 (Cth) (and equivalent anti-spam legislation in all applicable countries) when sending SMS Messages through the Services. We require the following (among other things) of all SMS messages sent through the Services:

1. All SMS Messages must contain an opt-out mechanism that allows subscribers to remove themselves from your list. Each such mechanism must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to directSMS. You acknowledge and agree that you will not remove, disable or attempt to remove or disable the mechanism.

2. All SMS Messages must contain contact information of the sender or the entity on whose behalf the SMS Message was sent, such as that entity's address or phone number.

3. All SMS Messages must state the reason the recipient is receiving the message. For example, "You are receiving this message from XYZ Company because you signed up for our SMS list at www.xyz.com."

4. All SMS Messages must be compliant with any disclosure requirements that apply to the sender (e.g., some countries' laws require that business letters, including SMS, contain further identification details as to the form of the organization, the place of incorporation, the names of executives etc.)

These 4 guidelines will help ensure that directSMS maintains its reputation and white-listing status with a number of major global telco's. If at any time your campaign is flagged as spam by a recipient, directSMS reserves the right to cancel your account without notice.

19 - Definitions and Interpretation

19.1 In this agreement the following words have these meanings.

Access information means the password and username which directSMS allocates to you and/or your personnel for the purpose of accessing directSMS' SMS Services via the web site.

Account means your numbered account with directSMS for directSMS' SMS Services.

Agreement means this agreement for the provision of directSMS' SMS Services to you from directSMS. The terms of this agreement consist of the terms set out in this document and in the application form.

Application form means the directSMS' SMS Services application form which you must complete online at my.directsms.com.au to apply to use directSMS' SMS Services.

Business day means any day (except Saturday or Sunday) on which financial institutions are open for business in the Sydney or Melbourne metropolitan areas.

CDMA means code division multiple access which uses unique digital codes rather than separate frequencies or channels to differentiate subscribers. all users share the same range of radio frequency.

Change event means:
(a) The issue of a competition notice by the ACCC in respect of a party to this agreement;
(b) The grant of an injunction against directSMS in relation to a breach or alleged contravention of the trade practices act 1974;
(d) The giving of a lawful directive to directSMS by a regulator;
(e) The giving of a direction to directSMS by a minister of state or federal parliament; Or
(f) The introduction of any industry code or standard or other code of practice, whether registered or otherwise, with which directSMS is obliged to or chooses to comply.

Charges means the charges for directSMS' SMS Services as set out on directSMS' website and/or the applicable pricing structure, as amended from time to time.

Confidential information means all confidential, non-public or proprietary information exchanged between you and directSMS before, on or after the date you register with directSMS, technology or other affairs of the provider of the information but excludes information:
(a) Which is in or becomes part of the public domain other than through breach of this agreement or an obligation of confidence owed to the provider;
(b) Which a party can prove by contemporaneous written documentation was already known to it at the time of disclosure by the disclosing party (other than if such knowledge arose from disclosure of confidential information in breach of an obligation of confidentiality); Or
(c) Which the recipient acquires from a third party entitled to disclose it.

directSMS' SMS Services means the group of services on offer by directSMS. These include but are not limited to: services whereby you can use a customised user interface to an external web site to send SMS messages to the SMS compatible mobile phone handsets of end-users over the GSM network and, where end users are directSMS subscribers. Also the use of email2SMS as well as directSMS Application Programming Interfaces (APIs), and any other directSMS SMS related service.

Emergency service purpose means the purpose of providing any warning or notification about a serious risk to the safety of persons or property.

Equipment means the equipment and software used by you to connect to, access or use directSMS' SMS Services.

GSM means the Global System for Mobile communications.

GST means the Goods and Services Tax imposed by the GST act and the related imposition acts of the commonwealth.

GST act means the a new tax system (Goods and Services Tax) act 1999, as amended from time to time.

GST exclusive consideration means any consideration payable under this agreement that either does not include an amount referable to GST or, if the consideration is inclusive of GST, is that consideration excluding the amount referable to GST using the rate of GST in force at the time the parties agreed on the consideration.

Help desk means a service established and operated by or on behalf of directSMS that enables you to obtain instructions or advice by email or over the telephone, in relation to directSMS' SMS Services.

Intellectual property means all rights in relation to patents, copyright, registered designs, registered and registered trade marks, trade secrets, know-how and confidential information and all other intellectual property as defined in article 2 of the convention establishing the world intellectual property organisation of July 1967, including any right to register those rights, whether created before or after the date of this agreement, whether existing in Australia or any other country and in all cases for the duration of those rights.

Pre paid means the amount paid prior to use of directSMS services by you payable under this agreement.

Invoice means an invoice sent to you setting out charges payable by you under this agreement.

Marketing message means an SMS message or other message that is designed to promote the sale of or demand for goods or services.

Month means a calendar month and monthly means per calendar month.

Non-body corporate means a person or entity that is not a body corporate (including an individual, partnership or sole trader).

Other message means a message in any format, for example, email, which is or is intended to be converted into an SMS message for delivery by means of directSMS' SMS Services.

Personal information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, which is received by customer from any source as a consequence of the performance of its rights and obligations under this agreement.

Personnel includes officers, employees, contractors, consultants, representatives, agents, legal advisers and accountants.

Principals means any of your owners, directors or company secretary.

Privacy act means the privacy act 1988.

Privacy laws means the privacy act and any other legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to personal information.

Scheduled outage means those occasions when directSMS performs scheduled maintenance, upgrades or repairs to directSMS' SMS Services and consequently all or part of directSMS' SMS Services is not available.

Security means an unconditional bank guarantee in favour of directSMS from an Australian licensed bank in Australia, payable in Australian dollars, on demand or other security as agreed between you and directSMS in a form approved by directSMS and includes any increase to existing security.

SMS means a short message service provided by directSMS whereby you and others can send alphanumeric messages of up to 160 characters (120 characters for CDMA networks).

Tax invoice has the same meaning as in the GST act.

Web site means the web site through which you may access and use directSMS' SMS Services at the URL address notified by directSMS from time to time.

You means the business, company, person identified as the customer in the application form and "your" has a corresponding meaning.

19.2 In this agreement unless the contrary intention appears:
(a) A reference to this agreement or another instrument includes any variation or replacement of either of them;
(b) A statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
(c) The word "person" includes a firm, business, company, body corporate, an unincorporated association or an authority;
(d) If a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day; And singular includes the plural and vice versa;
(e) The words "include", "including", "for example" or "such as" are not used as, nor are they to be interpreted as, words of limitation, and, when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of that kind.