Legal Docs

1. Definitions:

‘Account’ means the Customer’s subscription for the Service including the business and login information and Password by which the Customer receives the Service.
‘Charges’ means the amount payable by the Customer for the Service.
‘Messages’ means a short text message sent to a mobile phone using the Service.
‘Password’ means the combination of the Customer’s account details and a password that will be provided by MessagePort (ExactSMS (Edgility)) to the Customer after the Customer has accepted these Terms of Service.
‘Pricing Structure’ means the schedule, which identifies the Charges applicable for the Service or any part of the Service, as amended from time to time.
‘Terms of Service’ means the terms and conditions contained on these pages as amended from time to time including any attached schedules, the MessagePort (ExactSMS (Edgility)) copyright and disclaimer provisions and the Pricing Structure.
‘Service’ means the services outlined in clause 2.
‘Site’ means the website identified by the domain name including ExactSMS (Edgility) and/or MessagePort, the pre-determined SMS web site.
‘ExactSMS (Edgility)’, ‘FONELiNC Pty Ltd’ or ‘MessagePort’ means FONELiNC Pty Ltd trading as ExactSMS (Edgility) at Suite 5.16, 55 Miller Street PYRMONT NSW 2009 (ACN 092 285 955).
‘the Customer’ means the signatory, being the subscriber to the Service commencing upon signing the service agreement.

2. The Service

2.1 The Service will, amongst other things, enable the Customer to send Messages to Australian and New Zealand mobile phone numbers on the
GSM network via the MessagePort or ExactSMS (Edgility) platform on a non-transferable basis during the term of the agreement.
2.2 The MessagePort platform, for the purpose of providing the Service can be accessed via:
(a) the ExactSMS (Edgility) WebSMS Site; or
(b) the MessagePort WebSMS Site; or
(c) the Customer’s desktop E-mail application; or
(d) a FTP (file transfer protocol) process.

3. Customer obligations

3.1 The Customer must:
(a) Complete the registration process, read and accept these Terms of Service, as amended and updated from time to time;
(b) Correctly and accurately enter Customer business details as part of the registration process;
(c) Abide by the Terms of Service and all applicable laws and not place ExactSMS (Edgility) in breach of any laws;
(d) Pay ExactSMS (Edgility) all fees and charges incurred from use of the Service, and all applicable government taxes, duties, imposts or levies;
(e) Provide ExactSMS (Edgility) with all information and co-operation required in relation to the Service;
(f) Follow ExactSMS (Edgility)’s instructions regarding the use of the Service;
(g) Have prior written permission from ExactSMS (Edgility) to ‘on-sell’ the Service to other Customers, users or businesses.
3.2 The Customer acknowledges and accepts responsibility for the content of the Messages sent via the Service. The Customer warrants not to transmit any Message which includes any unlawful, harassing, libellous, abusive, threatening, harmful, obscene, ‘spam’, ‘junk mail’ or otherwise objectionable material of any kind, or any material that violates the rights of a third party, including but not limited to the intellectual property rights of that party. The Customer agrees that ExactSMS (Edgility) will not be liable or responsible for the content and nature of the Messages.
3.3 The Customer can only use the Service for legitimate business purposes to communicate with employees, existing business relationships and existing customers. When the Service is used for marketing and promotional purposes, the Customer must be able to present evidence of permission from the destination mobile phone holder to receive messages on their mobile phone. ExactSMS (Edgility) will provide any expertise and advice in obtaining such permissions if the Customer requires such assistance.

4. ExactSMS (Edgility)’s provision of the Service

4.1 ExactSMS (Edgility) or MessagePort is not responsible or liable for any part of the promotions, advertising or Messages between the Customer and any third party in connection with the Service.
4.2 ExactSMS (Edgility) and MessagePort reserves the right to modify or suspend the Service with reasonable notice to the Customer. The Customer acknowledges and accepts that ExactSMS (Edgility) will not be liable to the Customer or any third-party for any modification, suspension or discontinuance of the Service.

5. Privacy

5.1 The Customer must keep the Password and Account details confidential, and assumes entire responsibility for any use of the Services or any other acts that occur under or in relation to the Customer’s Password or Account as a result of failure to keep Password and Account details secret. The Customer agrees to immediately notify ExactSMS (Edgility) of any disclosure or unauthorized use of Password or Account or any other breach of security.
5.2 ExactSMS (Edgility) collects information, including the personal information provided by the Customer to ExactSMS (Edgility) for purposes including:
(a) to register the Customer for the Service and provide the Customer with the Service;
(b) to provide a more customised service as part of the Service.
5.3 ExactSMS (Edgility) will not disclose Customer user information to anyone except in accordance with these Terms of Service, as authorised by the Customer or as required by law. ExactSMS (Edgility) may, however, disclose to third parties aggregate data, provided that no individual is identifiable in such data.

6. Payment

6.1 ExactSMS (Edgility) will prepare and issue, a GST compliant invoice for products and services at the end of each calendar month. This invoice will provide a detailed summary of charges for that particular month. This invoice is payable by the Customer within 14 days of the close of the previous billing month.
6.2 The Charges will be determined in accordance with the Pricing Structure as amended from time to time. ExactSMS (Edgility) will advise the Customer 30 days prior (in writing) of any changes to the pricing structure
6.3 If the Customer has not prepaid for the Service, the Customer acknowledges and accepts liability and agrees to pay all outstanding Charges incurred prior to the termination of the Customer’s Account. The termination of the Account will not release the Customer from any liability to pay outstanding Charges.
6.4 If the Customer has prepaid for the Service and elects to discontinue the Service for any reason other than a breach of Service Level Agreement by ExactSMS (Edgility), the Customer acknowledges that any unused purchases, fees or messages are not refundable under any circumstances. This includes any prepaid annual packages or plans.
6.5 Monthly and Annual billing will commence from the first calendar day of the month that the account is activated regardless of the date of account provisioning. No pro-rata reduction or consideration will be applied to any Monthly or Annual packages that have commenced the Service after the first calendar day of the month.

7. Changes to the Terms of Service

7.1 ExactSMS (Edgility) may change these Terms of Service and/or Pricing Structure at any time and will notify the Customer of the changes by posting the new Terms of Service and/or Pricing Structure on the Site
7.2 ExactSMS (Edgility) undertakes to advise the Customer in writing of any changes to these Terms of Service. Any changes other than message market rates must be mutually agreed upon by ExactSMS (Edgility) and the Customer

8. Termination

8.1 If either ExactSMS (Edgility) or the Customer have deemed to breach any part of these Terms and Conditions, either party may apply for termination of its Account after serving 30 days’ notice in writing to the respective party. The Customer acknowledges and accepts liability for paying all outstanding Charges due to ExactSMS (Edgility) under this agreement up to the date of Termination.
8.2 ExactSMS (Edgility) may terminate the Customer’s Account immediately if:
(a) In ExactSMS (Edgility)’s opinion the Customer has violated these Terms of Service

9. Copyright Notice

9.1 The ExactSMS (Edgility) and/or MessagePort platforms, the Site and its contents are subject to copyright under the laws of Australia and, through international treaties, other countries. The copyright is owned by ExactSMS (Edgility). Third parties may own some of the content on the Site (such as their own company logo).
9.2 The Customer accepts that all contents of the Service are protected by copyright, trademarks, or other proprietary rights and laws. The Customer must not reproduce, transmit (including broadcast), adapt or otherwise exercise the copyright in the whole or any part of the Site for any other purpose except as expressly permitted by statute or with ExactSMS (Edgility)’s written consent.

10. Disclaimers, Indemnities and Limitation of Liability

10.1 The use of the Service is at the Customer’s sole risk. The Service is provided on an “as is” and “as available” basis. ExactSMS (Edgility) or MessagePort does not warrant that the Service will meet the Customer’s requirements, nor that the Service will be uninterrupted, timely, secure, or error free; nor does ExactSMS (Edgility) warrant the results that may be obtained from the use of the Service.
10.2 ExactSMS (Edgility) will charge the Customer for use of the Service at the agreed rate per message per intended recipient, irrespective of whether the message is successfully delivered to, or received by, the intended recipient. Messages sent to a group will be treated as individual messages sent to each of the group’s members and charged accordingly.
10.3 Albeit that the Site may be accessed from countries and jurisdictions outside Australia, ExactSMS (Edgility) makes no representation that the content of the Site complies with the laws (including intellectual property laws) of any country or jurisdiction outside Australia.
10.4 ExactSMS (Edgility) will endeavour to use due care and skill in the storage and transmission of message content and will do so in accordance with its privacy and security procedures outlined in clause 5. However, due to the nature of the media and modes of communication used by the Service, and factors outside of reasonable control, ExactSMS (Edgility) does not guarantee that the Information will not be received or handled other than intended.
10.5 To the extent permitted by law, ExactSMS (Edgility) and its employees, agents and consultants exclude all liability for any loss or damage (including indirect, special or consequential loss or damage) arising from the use of, or reliance on, the Information provided it is not caused by any negligent act or omission. If any law prohibits the exclusion of such liability, ExactSMS (Edgility)’s liability under these Terms of Service or otherwise in connection to provision of the Services is limited to the extent permitted by law.
10.6 The Customer releases and indemnifies ExactSMS (Edgility), MessagePort its officers and employees from liability for any direct, indirect, incidental, special or consequential damages whatsoever, including but not limited to liability for any damages, resulting from unauthorized access by third parties to the data or Information and any claim or demand made by any third party due to or arising out of the Customer’s use of the Service, violation of the Terms of Service or violation of any rights of another, provided it is not caused by the negligence of ExactSMS (Edgility) or its officers or employees.
10.8 Any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within 6 months after such claim or cause of action arose or be forever barred.

11. General

11.1 The laws of the State of NSW, Australia, govern these Terms of Service. Both the Customer and ExactSMS (Edgility) submit to the non-exclusive jurisdiction of the Courts of NSW, Australia.
11.2 Except as otherwise expressly agreed, all notices from the Customer to ExactSMS (Edgility) must be sent by e-mail to ExactSMS (Edgility) through that part of the Site expressly designed for the purpose.
11.4 If any provision of these Terms of Service is found to be invalid by any court having competent jurisdiction, the invalidity of such a provision will not affect the validity of the remaining provisions of these Terms of Service.

12. Acceptance of Terms of Service

12.1 By acknowledging that the Customer has read and understands these Terms of Service and completing the registration process for the Service, the Customer is agreeing to be bound by these Terms of Service and that these Terms of Service contain the full and entire agreement covering the Customer’s use of the Service.

The following are the terms and conditions for use of the ExactSMS (Edgility) Messaging systems including Messageport. You, as account holders and users are subject to these terms and conditions, the ExactSMS (Edgility) Privacy Statement, disclaimers and notices (collectively known as “Terms of use”) issued by ExactSMS (ExactSMS (Edgility)).

Use of or access to the ExactSMS (Edgility) messaging service, constitutes agreement to these terms of use.

Changes to or Termination of Accounts

ExactSMS (Edgility) may change any of these Terms of Use at any time by giving notice to the account holder. This notice may be by way of e-mail or a posting of the change on the ExactSMS (Edgility) website once a user is logged in to their account. Continued use of the ExactSMS (Edgility) account will amount to acceptance of these changes.

ExactSMS (Edgility) may terminate any account holder’s account if it believes any of these Terms of Use have been breached, or to protect ExactSMS (Edgility) property. Monies owing by the account holder will still be payable to ExactSMS (Edgility).

Users Responsibilities

Account holders and/or users must keep their personal registration information (name, billing details and contact data) accurate, complete and up to date. ExactSMS (Edgility) reserves the right to verify this information from time to time and to terminate without notice any accounts found in non-compliance with this requirement.

Account holder information may be accessed in accordance with the ExactSMS (Edgility) Privacy Principles.

Use of ExactSMS (Edgility)’s Messaging systems is the account holder’s responsibility and totally at the account holder’s own risk.
ExactSMS (Edgility) (including its employees and contractors) will not be liable for any loss or damage caused to the account holder, user or anyone else as a result of using the ExactSMS (Edgility) service. This includes but is not limited to loss or damage caused by loss or delay of message content or any loss caused by the negligence of ExactSMS (Edgility), its employees or contractors.

Account holders and users will be totally responsible for costs incurred from the use of their account, including costs incurred by others entrusted with the account holder’s username and password.

Therefore account holders and users must accept responsibility for all aspects of their ExactSMS (Edgility) account, including the actions of all persons in possession of the account holders username and password.

The account holder or user indemnifies ExactSMS (Edgility) from all costs, liabilities, suits, actions or claims arising or in any other way connected with ExactSMS (Edgility) from the account holder’s or user’s use of their ExactSMS (Edgility) account, or any other person using the account holder’s username and password.

The account holder and user agrees not to transmit any material which violates State or Federal law, instructions, regulations or guidelines issued by regulatory authorities, relevant licenses and other codes of practice or transmit any material which is in contravention to any privacy or copyright rules or any other proprietary interest.

The account holder and/or user agrees not to harass, stalk, abuse or threaten any other person through the use of ExactSMS (Edgility) messaging.

The account holder agrees to be aware and abide by State and National regulation and law regarding the use of SMS as an advertising and communication media. The account holder, as a message originator, agrees to comply with:
In Australia;
1. The SPAM ACT 2003 – See the Practical guide for business; and
2. The Australian Communications Industry Forum (ACIF) Industry Code of Short Message Service (SMS) Guideline, ACIF document C580 December 2002.

In New Zealand;
1. The Unsolicited Electronic Messages Act 2007, issued by The Parliamentary Counsel Office of New Zealand.

Further information on the SPAM ACT practical guide for business and the ACIF Industry code for SMS is outlined in the “SMS Guideline for commercial message originators” below.

The account holder and/or user agrees not to interfere with the operation of the ExactSMS (Edgility) messaging system.

ExactSMS (Edgility) directors maintain the right to inspect message content and take appropriate action on receiving complaints relating to message content via the ExactSMS (Edgility) service. We take abuse of people’s privacy rights seriously. ExactSMS (Edgility) contacts all account holders by e-mail or phone for any matter relating to unsolicited, abusive, deceptive or misleading messaging that has been conducted through the ExactSMS (Edgility) service. Appropriate action may constitute the suspension or cancellation of an account pending investigation into any alleged abuse or misuse of the ExactSMS (Edgility) service for inappropriate or illegal use.

The account holder and/or user agrees that all the contents of the ExactSMS (Edgility) Messaging service, including web-sites, pages, logos, hardware and promotional materials are protected by copyrights and trademarks and remain the property of ExactSMS (Edgility) and may not be copied for any reason.

SMS Guidelines for commercial message originators

1. The SPAM ACT or THE UNSOLICITED ELECTRONIC MESSAGES ACT. ExactSMS (Edgility) account holders agree to comply with the SPAM ACT or THE UNSOLICITED ELECTRONIC MESSAGES ACT. Further ExactSMS (Edgility) account holders agree to follow the guide produced by the ACA of SPAM ACT: a practical guide for business or The Unsolicited Electronic Messages Act 2007 which state;

The three key steps you should follow are:

A. Consent
Only send commercial electronic messages with the addressee’s consent – either express or inferred consent.

B. Identify
Include clear and accurate information about the person or business that is responsible for sending the commercial electronic message.

C. Unsubscribe
Ensure that a functional unsubscribe facility is included in all your commercial electronic messages. Deal with unsubscribe requests promptly.

2. ExactSMS (Edgility) account holders agree to comply with ACIF Industry Guidelines for sending SMS.

This guideline states:

a) Recognised Identifier – Message originators (the ExactSMS (Edgility) Account Holder) should include a Recognised Identifier in all their Marketing Messages. The Recognised Identifier should be in a form that reasonably enables a Recipient to identify or directly contact the Message Originator (the ExactSMS (Edgility) account holder).

b) Prohibition of Marketing Messages – Message originators should not send Marketing Messages to Recipients via SMS unless:
i. The Recipient has requested the Marketing Messages
ii. The Recipient has provided the Message Originator with prior consent to send such Marketing Messages; or
iii. The message Originator 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 1998

c) Recipients Rights to Opt Out – ExactSMS (Edgility) account holders sending marketing messages should implement appropriate means of allowing the recipient to notify the message originator not to send further Marketing Messages. The means should be:
i. Easy to use by the Recipients
ii. Minimise any inconvenience
iii. Be provided at a low cost to the recipient

d) Compliance with Opt out Notices – The message originator should comply as soon as practicable with any notice it receives under clause c) above and not send further Marketing Messages unless and until the Recipient requests or consents to receiving further marketing messages.

Information Collection and Use

ExactSMS (Edgility) is the sole owner of the information collected on this site. We will not sell, share, or rent this information to others in ways different from what is disclosed in this statement. ExactSMS (Edgility) collects information from our users at several different points on our website.

Registration

In order to use this website, a user must first complete the registration form. During registration a user is required to give their contact information (such as name and email address). This information is used to contact the user about the services on our site for which they have expressed interest.

Cookies

A cookie is a piece of data stored on the user’s hard drive containing information about the user. Usage of a cookie is in no way linked to any personally identifiable information while on our site. Once the user closes their browser, the cookie simply terminates. For instance, by setting a cookie on our site, the user would not have to log in a password more than once, thereby saving time while on our site. ExactSMS (Edgility) website will log people out of a secure session after 2 hours of inactivity by a user.

Log Files

We use IP addresses to analyse trends, administer the site, track user’s movement(s), and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Sharing

We do not share aggregated demographic information with partners or advertisers.

Links

This web site contains links to other sites. Please be aware that we, ExactSMS (Edgility), are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of each and every web site that collects personally identifiable information. This privacy statement applies solely to information collected by this Web site (www.exactsms.com.au).

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose this information. Information requested may include contact information (such as name and address) and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the use and satisfaction of this site.

Security

This website takes every precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected both online and off-line.

When our registration/order form asks users to enter sensitive information (such as credit card number), that information is encrypted and is protected with industry-standard strong encryption – SSL. While on a secure page, such as our order form, the lock icon on the bottom of Web browsers such as Netscape Navigator and Microsoft Internet Explorer becomes locked, as opposed to un-locked, or open, when you are just ‘surfing’.

While we use SSL encryption to protect sensitive information online, we also do everything in our power to protect user-information off-line. All of our users’ information, not just the sensitive information mentioned above, is restricted in our offices. Only employees who need the information to perform a specific job (for example, our billing clerk or a customer service representative) are granted access to personally identifiable information. Our employees must use password-protected screen-savers when they leave their desk. When they return, they must re-enter their password to re-gain access to your information. Furthermore, ALL employees are kept up-to-date on our security and privacy practices. Every quarter, as well as any time new policies are added, our employees are notified and/or reminded about the importance we place on privacy and what they can do to ensure our customers’ information is protected. Finally, the servers that we store personally identifiable information on are kept in a secure environment, behind a locked door.

Users of the ExactSMS (Edgility) Messaging Service must realise that although ExactSMS (Edgility) employs high levels of security, no data transmission over the internet can be 100% safe.

Therefore, use of ExactSMS (Edgility)’s Messaging is at the client’s own risk.

Furthermore, users must be aware that sending messages with ExactSMS (Edgility) will have a similar level of security and reliability as that of Mobile Phone Networks.

ExactSMS (Edgility), its employees and contractors will not be held liable for any loss or damage whatsoever, incurred through the use of ExactSMS (Edgility) SMS Messaging, including loss of information due to carrier failure, network failure or negligence on the part of ExactSMS (Edgility), its employees or contractors.

Please refer to our Terms and Conditions and Disclaimer for more information.

Ask Us About Your Privacy

If you have any questions about this privacy statement, the practices of this site, or your dealings with this web site, you can contact us at info@edgility.com.au

We do not condone unsolicited messages, notifications, alerts or any message that you may receive from someone who should not have your address or mobile number.

Australian Communications and Media Authority requires that all broadcast messages must include the following information:

• Identity of the sender; and
• Means to opt-out from future correspondence.

This can be done, for example, by including: (Reply with STOP to Optout) in the message. Note that the maximum message length is 160 characters (including the Opt-out instructions).

Important Links

Visit the ACMA website

Australian Spam Act

Australian Spam Act Fact Sheet

New Zealand Spam Act