TERMS & CONDITIONS
What must I do to ensure that my marketing email or SMS is legal?
Using email or SMS to send information about your products and services is legal as long as it complies with the Spam Control Act.
The Act sets out basic requirements for legitimate mass electronic marketing ("legal spam") -
i. Use the label
ii. Provide a means for your recipient to "unsusbscribe" to future mailings
The Unsubscribe Facility must contain contact information in the form of an email address, and tel or fax number that the recipient can use to submit an unsubscribe request. It is strongly suggested that the unsubscribe facility should take the same form as the spam message - for example, email spam should allow the recipient to unsusbscribe by email and SMS spam should offer an unsubscribe number which the recipient can submit through his mobile phone.
iii. The unsubscribe facility must be open for 30 days. Once an unsubscribe request is submitted, you have 10 days to remove the unsubscriber from your mailing list.
Thank you for selecting iSMS Australia , Reliable SMS Gateway service. This online web application license agreement is a legal agreement between you and Mobiweb Sdn. Bhd. that describes the terms and conditions applicable to your use of the Software. By clicking ACCEPT, you indicate that you have read and understood and assent to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, you are not granted any rights whatsoever in the web application, and you will not be able to access or use the application.
LICENSE GRANT AND RESTRICTIONS
Subject to the terms and conditions of this Agreement, including the payment of the applicable subscription fees, Developer grants you a personal, limited, non-exclusive, non-transferable license, during the initial term of the subscription and any Renewal Term (as defined in Section 4), to electronically access and use the application for which the iSMS Australia credit fee has been paid by you.
You are not licensed or permitted under this Agreement to do any of the following and shall not allow any third party to do any of the following: (i) access or attempt to access any other developer systems, programs or data that are not made available for public use; (ii) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way the material from the www.2-way-sms.com site; (iii) permit any third party to benefit from the use or functionality of the software via a rental, lease, timesharing, service bureau, or other arrangement; iv) transfer any of the rights granted to you under this Agreement; (v) work around any technical limitations in the application, use any tool to enable features or functionalities that are otherwise disabled in the application, or decompile, disassemble, or otherwise reverse engineer the application except as otherwise permitted by applicable law; (vi) perform or attempt to perform any actions that would interfere with the proper working of the application, prevent access to or the use of the application by developer's other licensees or customers, or impose an unreasonable or disproportionately large load on developer's infrastructure; or (vii) otherwise use the application except as expressly allowed under this Section 2.
RESERVATION OF RIGHTS AND OWNERSHIP
The application is licensed not sold, and developer reserves all rights not expressly granted to you in this Agreement. The application is protected by copyright, trade secret and other intellectual property laws. Developer and its licensors own the title, copyright, and other worldwide intellectual property rights in the application and all copies of the application. This Agreement does not grant you any rights to trademarks or service marks of Developer.
No subscription fee to the application is needed. However, purchase of any iSMS Australia credit is only valid if you use a valid credit card.
You must register to use the application and (i) provide true, accurate, current and complete information as prompted in the sign-up process (the "Registration Data"), and (ii) maintain and promptly update the Registration Data to keep it accurate, current and complete. If you provide any Registration Data that is inaccurate, not current or incomplete, or Developer has reasonable grounds to suspect is inaccurate, not current or incomplete, Developer may, in its sole discretion, suspend or terminate your account and refuse any and all current or future access to and use of the application or services (or any portion thereof).
Any person who lodges a notification of unlawful activity with a service provider knowing that it materially misrepresents the facts is liable for -damages for wrongful take-down.
A service provider is not liable for wrongful take-down in response to a notification.
In the event that a iSMS Australia account is transferred from one company to another, the former company shall inform iSMS Australia in writing of this change, and change all details on the account accordingly. If the Username is the former company name, a new account shall be opened.
In the event that a User forgets his password, and/or his contact details used for password recovery has changed (e-mail address, mobile number), and he requests a password change, mobile number change or e-mail address change, iSMS Australia will do the following: Call or e-mail the existing addresses on the account. If there is a positive response from these, the changes requested will be effected. If there is no response or a negative response, the User may be required to re-register.
iSMS Australia will not monitor, edit, or disclose any personal information about the User or the User's iSMS Australia account, phonebook, message content and MSISDN's, other than in the normal course of the use of the services, without the User's prior permission unless iSMS Australia has a bona fide belief that such action is necessary to conform to legal requirements or comply with legal process; protect and defend the rights, property or legally protectable interest of iSMS Australia, the User or other third party; enforce any of the provisions of these terms and conditions or protect iSMS Australia's business or reputation. The User agrees that iSMS Australia may access its account, and message contents in order to respond to service or technical issues and may communicate with the User from time to time for purposes including, but not limited to communicating information regarding any updates, upgrades, notices, or other information.
A recipient of a message has the right to know the identity of the sender, and this will be disclosed on request to the recipient. Users agree that iSMS Australia may make use of a User's profile information for non-personal statistical purposes.
Users agree that they shall not violate any privacy laws, regulations or applicable codes of conduct relating to the protection of personal information of end users including but not limited to names, addresses, email addresses, landline and mobile telephone numbers and shall not disclose the personal information of end users to any third party save without the express consent of the end user or where specifically required by law to do so.
PAYMENT AND PRICES
iSMS Australia charges are located online at http://www.2-way-sms.com/premium-sms-credit-payment.php and may be provided as a schedule to any other format of these terms and conditions. Network service providers' charges for use of their networks and for SMS services may differ in respect of individual network operators and may be varied by network operators from time to time and without prior notice to iSMS Australia or its Users. iSMS Australia may vary its charges for SMS messages from time to time and without prior notice to Users. In the event that a network(s) introduce reciprocal charges, iSMS Australia retains the right to increase the number of credits needed per message, for that specific network(s). Payment security: iSMS Australia use secure third party payment gateways of iPay88,eNets and PayPal.
Cooling-off period: Users have the right to return sms credits purchased from this site within 7 days.
The User has the right to review, correct and cancel electronic transactions before the User effects payment and/or places an order. Credit card purchases: Credits purchased using a credit card will expire within 12 months of the date of purchase.
The number of credits used per message depends on the destination and the messaging route used. This number is subject to change without notice, and is indicated on the "coverage" link. The cost of a credit consists of the message cost (network operator), database, User care and handling cost.
PUBLIC FORUMS AND USER SUBMISSIONS
iSMS Australia is not responsible for any material submitted to the public areas by you (which include bulletin boards, hosted pages, chat rooms, or any other public area found on the website). Any material (whether submitted by you or any other user) is not endorsed, reviewed or approved by the Website Owner. iSMS Australia reserves the right to remove any material submitted or posted by you in the public areas, without notice to you, if it becomes aware and determines, in its sole and absolute discretion that you are or there is the likelihood that you may, including but not limited to: -
- 8.1 defame, abuse, harass, stalk, threaten or otherwise violate the rights of other users or any third parties;
- 8.2 publish, post, distribute or disseminate any defamatory, obscene, indecent or unlawful material or information;
- 8.3 post or upload files that contain viruses, corrupted files or any other similar software or programmers that may damage the operation of the Website Owner's and/or a third party's computer system and/or network.
You further agree not to use the website to send or post any message or material that is unlawful, harassing, scams, fraud, defamatory, abusive, indecent, threatening, harmful, vulgar, obscene, sexually orientated, racially offensive, profane, pornographic or violates any applicable law and you hereby indemnify the Website Owner against any loss, liability, damage or expense of whatever nature which the Website Owner or any third party may suffer which is caused by or attributable to, whether directly or indirectly, your use of the website to send or post any such message or material.
iSMS Australia makes no warranties, representations, statements or guarantees (whether express, implied in law or residual) regarding the website, the information contained on the website, you or your company's personal information or material and information transmitted over our system.
DISCLAIMER OF LIABILITY.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE, SERVICES, AND ANY CONTENT ACCESSIBLE THROUGH THE SOFTWARE ARE PROVIDED "AS-IS" AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DEVELOPER, ITS AFFILIATES, LICENSORS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DEALERS AND SUPPLIERS (COLLECTIVELY, "SUPPLIERS") DISCLAIM ALL GUARANTEES AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SOFTWARE, SERVICES, CONTENT, AND RELATED MATERIALS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND NON-INFRINGEMENT. DEVELOPER DOES NOT WARRANT THAT THE SOFTWARE IS SECURE OR FREE FROM BUGS, VIRUSES, INTERRUPTION, OR ERRORS, OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. FURTHER, DEVELOPER DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT OR DATA THROUGH THE SOFTWARE OR CONTINUED ACCESS TO ANY TRIAL VERSION OF THE SOFTWARE OR TO THE DATA ENTERED INTO THE TRIAL VERSION OF THE SOFTWARE AFTER THE TRIAL PERIOD OF TIME IS OVER (IF APPLICABLE). SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SOFTWARE, AS APPLICABLE. HOWEVER, SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
LIMITATION OF LIABILITY AND DAMAGES.
iSMS Australia shall not be responsible for and disclaims all liability for any loss, liability, damage (whether direct, indirect or consequential), personal injury or expense of any nature whatsoever which may be suffered by you or any third party (including your company), as a result of or which may be attributable, directly or indirectly, to your access and use of the website, any information contained on the website, you or your company's personal information or material and information transmitted over our system. In particular, neither the Website Owner nor any third party or data or content provider shall be liable in any way to you or to any other person, firm or corporation whatsoever for any loss, liability, damage (whether direct or consequential), personal injury or expense of any nature whatsoever arising from any delays, inaccuracies, errors in, or omission of any share price information or the transmission thereof, or for any actions taken in reliance thereon or occasioned thereby or by reason of non-performance or interruption, or termination thereof.
THE ENTIRE CUMULATIVE LIABILITY OF DEVELOPER, ITS SUPPLIERS, AND SERVICES PROVIDERS FOR ANY REASON ARISING FROM OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SOFTWARE, UNLESS OTHERWISE SEPARATELY AGREED BY DEVELOPER IN WRITING. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DEVELOPER, ITS SUPPLIERS, AND SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RELATING TO LOSS OF BUSINESS, TELECOMMUNICATION FAILURES, THE LOSS, CORRUPTION OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF PROFITS OR INVESTMENT, USE OF THE SOFTWARE WITH HARDWARE OR OTHER SOFTWARE THAT DOES NOT MEET DEVELOPER'S SYSTEMS REQUIREMENTS OR THE LIKE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF DEVELOPER, ITS SUPPLIERS, SERVICE PROVIDERS, OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME STATES DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Developer shall have the right, to change or add to the terms of its Agreement at any time, (provided that it is not Developer's intent that such change substantially affect the license rights granted to Licensee in Section 1 and for which consideration was paid by you) and to change, delete, discontinue, or impose conditions on any feature or aspect of application and services (including but not limited to Internet based services, pricing, technical support options, and other product-related policies) upon notice by any means Developer determines in its discretion to be reasonable, including posting information concerning any such change, addition, deletion, discontinuance or conditions in application or on any Developer sponsored web site. Any use of the application by you after Developer's publication of any such changes shall constitute your acceptance of this Agreement as modified.
Your rights under this Agreement may be terminated or suspended by Developer immediately and without notice if you or any of your authorized users fail to comply with any term or condition of this Agreement or you no longer consent to receive Electronic Communications in accordance with Section 9. Upon termination you must immediately cease using the application and services. Any termination of this Agreement shall not affect Developer's rights hereunder.
MISCELLANEOUS. Except as expressly set forth in this Agreement, this Agreement is a complete statement of the agreement between you and Developer and sets forth the entire liability of Developer, its Suppliers, and service providers, and your exclusive remedy with respect to the application, and its use. The Suppliers, agents, employees, distributors, and dealers of Developer are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Developer. Any waiver of the terms herein by Developer must be in a writing signed by an authorized officer of Developer and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement does not limit any rights that Developer may have under trade secret, copyright, patent or other laws.
16.1 Entire Agreement.
These website terms and conditions constitute the sole record of the agreement between you and the Website Owner in relation to your use of the website. Neither you nor the Website Owner shall be bound by any express tacit or implied representation, warranty, promise or the like not recorded herein. Unless otherwise specifically stated these website terms and conditions supersede and replace all prior commitments, undertakings or representations, whether written or oral, between you and the Website Owner in respect of your use of the website.
16.2 Alteration, Changes and Admenments.
iSMS Australia may at any time modify any relevant terms and conditions, policies or notices. You acknowledge that by visiting the website from time to time, you shall become bound to the current version of the relevant terms and conditions (the "current version") and, unless stated in the current version, all previous versions shall be superseded by the current version. You shall be responsible for reviewing the then current version each time you visit the website. iSMS Australia reserves the right to change and amend the prices and rates quoted on its website without any notice.
Where any conflict or contradiction appears between the provisions of these website terms and conditions and any other relevant terms and conditions, policies or notices, the other relevant terms and conditions, policies or notices which relate specifically to a particular section or module of the website shall prevail in respect of your use of the relevant section or module of the website.
No indulgence or extension of time which either you or the Website Owner may grant to the other will constitute a waiver of or, whether by estoppel or otherwise, limit any of the existing or future rights of the grantor in terms hereof, save in the event or to the extent that the grantor has signed a written document expressly waiving or limiting such rights.
iSMS Australia shall be entitled to cede, assign and delegate all or any of its rights and obligations in terms of any relevant terms and conditions, policies and notices to any third party.
All provisions of any relevant terms and conditions, policies and notices are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision of any relevant terms and conditions, policies and notices, which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions of any relevant terms and conditions, policies and notices shall remain in full force and effect.
16.7 The Services
The delivery of SMS messages is largely dependent on the effective functioning of network operators' cellular networks, network coverage and the SMS recipient's mobile handset. iSMS Australia cannot guarantee the availability of the service or delivery of SMS messages. iSMS Australia shall make all reasonable endeavours to ensure uninterrupted and continued use of the service.
Network operators may modify, enhance, develop or discontinue components of their services at any time without prior notice, in which event iSMS Australia shall be entitled to modify, enhance, develop or discontinue its services to Users without notice.
iSMS Australia shall use its reasonable endeavours to provide the User with advance notice of any modification, suspension or termination of its services and shall endeavour to minimise the duration of any suspension thereof in so far as this is reasonably practicable.
iSMS Australia reserves the right to change or terminate the services and/ or alter these terms and conditions for provision of the service at any time. Messages shall be deemed to have been delivered when iSMS Australia has sent the messages to the immediate destination that it is requested to do including, but not limited to, mobile telephone networks, SMTP or other servers.
Where a User breaches any of these terms and conditions, including terms relating to payment of any amount due to iSMS Australia then, without prejudice to any of its legal rights, iSMS Australia shall be entitled to, inter alia:
cancel its agreement with the User;
suspend or terminate the provision of services to the User;
suspend, disable or terminate the User's accounts;
sue for specific performance by the User; or
Where a User account is suspended or terminated due to any breach of these terms and conditions, iSMS Australia reserves the right to also suspend or terminate all other accounts registered by, or on behalf of, such User, as well as suspend or terminate any account registered by any other person or persons whom iSMS Australia, in its sole and unfettered discretion believes is affiliated with the User concerned.
16.9 Anti Spam Policy
Any registered User of iSMS Australia can send sms text messages to his/her friends, family, colleagues, clients, contacts etc using the iSMS Australia Interface. These interface conditions of use strictly forbid spamming to cell phone Users. We have several software filters to block spam messages. However, we cannot guarantee that spamming will not ever occur. Please let us know (email to email@example.com) the details of the message like content of message, time of delivery, sender name or number etc so that we can immediately check and block the user responsible for the same.