Capitalised terms are defined in Section 13 below.
In order to use the Services, You must:
- complete the registration process;
- agree to the terms set out in this Agreement; and
- provide true, complete and up to date contact information.
- Each time You access the Platform, You represent and warrant that there have been no changes to the information provided above. Live sms may refuse to provide the Services, close any You or
- User Account if there has been a material change to the information provided above.
This Agreement commences on the Commencement Date and continues until termination of this Agreement in accordance with clause 10 of this Agreement.
Subject to Your compliance with this Agreement and paying the relevant Fees, Live sms grants to You a non-exclusive and non-transferable right to use the Services in accordance with the terms of this Agreement. This licence may not be assigned or sublicensed to a third party.
Fees and Wallet Credit
If You have selected a PAYG Package, Your Wallet must have sufficient Wallet Credit in order to request any Services to be provided. The relevant PAYG Fees will be deducted from the Wallet Credit upon the provision of the relevant Services.
Any Wallet Credit purchased under any Package will be valid for 12 months from the date of purchase.
You acknowledge and agrees that all Intellectual Property Rights in, or associated with, the Software, the Platform and the Services are vested in Live sms and, unless otherwise provided in this Agreement, no right, title or interest in the Software, the Platform or the Services (or the Intellectual Property Rights associated with the Software, the Platform or the Services) is assigned, conveyed or transferred to You or any User under this Agreement and You hereby assigns to Live sms any rights it may have (now or in the future) in any Intellectual Property Rights in and to any updates, enhancements, improvements, developments and modifications to or of the Software, the Platform and the Services (or any Intellectual Property Rights arising in connection with the provision of the Services).
Except to the extent permitted by applicable Law, You must not, and must ensure that Your Personnel do not (in whole or part):
- adapt, disassemble, reverse engineer or de-compile, the Software;
- transfer or re-export the Software in violation of any applicable export restriction;
- copy, modify, transmit, rent, lease, sub-license, publish or otherwise exploit or distribute the Software to any person; and
- apply or register or attempt to register any Intellectual Property Rights in or associated with the Software in any form or format whatsoever;
- use the Software or the Services for any purpose whatsoever in breach of any law or regulation or in a manner or for any purpose or which constitutes violation or infringement of the rights of any person, firm or company (including but not limited to rights under Privacy Law and Intellectual Property Rights); and
- misuse the Software by knowingly introducing viruses, trojans, worms, logic bombs or other similar malicious malware to Live sms’ website.
- You must immediately notify Live sms upon becoming aware of any circumstances which breach, or may potentially breach, this clause 6.
Live sms acknowledges and agrees that no right, title or interest in Client Content is assigned, conveyed or transferred to Live sms under this Agreement and Live sms hereby assigns to You any rights it may have (now or in the future) in any Intellectual Property Rights in and to any updates, enhancements, improvements, developments and modifications to or of Client Content (or any Intellectual Property Rights arising in connection with modification of Client Content).
You grant to Live sms a non-exclusive, transferable, royalty-free, fully paid up licence to encode, transcode, reproduce, adapt, stream, store, copy and publish Client Content and Database, in any jurisdiction, for the term of this Agreement, to the extent necessary and for the express purpose of the provision of the Services in accordance with this Agreement.
You grant Live sms the right to archive and use any Client Content if required for the purpose of a dispute, legal proceeding or investigation.
Security and Privacy
You must not allow any person other than a User to access the Platform or use the Services. You acknowledge and agrees that it is responsible for all activity that occurs on the Platform in respect of Your Client Account or any User Account, irrespective of whether the User of the User Account has been authorised by You to undertake such activity, and accordingly, You must safeguard and keep records of the Users, User Accounts and Personnel to whom the login details of Client Account are disclosed. If You become aware of unauthorised access to Client Account or a User Account, You must immediately change the password to Client Account or User Account (as applicable) and notify Live sms immediately.
You are solely responsible for ensuring that You have the relevant permissions, services and facilities required to upload Client Content to the Platform. Live sms is not liable for any failure, delay or fault in Client Content being uploaded to the Platform or if Client Content is unintentionally deleted from the Platform once uploaded. Live sms will promptly notify the Customer if it becomes aware of any Client Content that has not been uploaded correctly, contains a bug or has been deleted and any disruptions to the upload process. You agree that You are responsible for backing up all Client Content and Live sms will not be liable for any losses suffered by You as a result of Client Content no longer being available on the Platform.
You must not, and must ensure that its Personnel do not, use the Platform or the Services:
- to distribute any content which contains material which is sexual, racist, defamatory, libelous, fraudulent, vulgar, discriminatory or otherwise inappropriate in nature. You acknowledge that such content will be considered to be harassment of the Customer;
- to distribute content which contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorised access to any system, data, password or other information of a Customer, Live sms or any third party;
- to distribute any Client Content to any Customer who has not consented to receiving such Client Content;
- to distribute any Client Content to any Customer whose Personal Information cannot be lawfully used by You (under statute or otherwise) for the purpose of receiving Client Content; or
in any manner which contravenes any applicable law, including without limitation, Privacy Laws and SPAM Laws or infringes the rights of a third party.
Live sms warrants that all Client Content, Databases, Product Data and any other Personal Information provided by You to Live sms in the course of providing the Services will be handled in accordance with:
- the best practice administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of the data which may be audited from time to time by You upon reasonable notice.
Live sms agrees to take all reasonable steps to prevent unauthorised recording, plagiarizing, editing or re-distribution of Client Content, however, You agree that Live sms will not be liable for any breach of this Agreement or Liability incurred by You as a direct or indirect result of circumstances which are, in whole or part, outside of the reasonable control of Live sms or to the extent that You failed to mitigate such Liability.
Subject to the confidentiality obligations under this Agreement, Live sms may retain and use the anonymised Product Data for the purposes of aggregating such data with the relevant data of Live sms’ other clients to generate industry benchmark or case study reports from time to time. For the avoidance of doubt, unless agreed otherwise by You, nothing in this clause 7 permits Live sms to disclose any information that would identify You or any individual included in the Database, as the subject of the data included in such reports.
You acknowledge and agree that if at any time circumstances arise which would reasonably be expected to compromise the security of the Platform or the provision of the Services, Live sms may suspend all or part of the Services immediately and until security has been restored. In such an event, Live sms and You must use their best endeavours to resolve such issues in order to reinstate the Services at the earliest possible opportunity.
Warranties and Acknowledgements
You acknowledge and agree that:
- the Services rely on services provided by third parties, including without limitation, telecommunications companies and mobile network aggregators, and Live sms and its partners will not be liable for any failure or defect in the Services directly or indirectly caused by, or resulting from, a failure, defect or technical constraint relating to the services provided by a third-party supplier;
- the Platform may be subject to technical maintenance, Upgrades and Service Issues which may temporarily affect Your access to the Platform or the Services. Where a Service Issue affects Your access to the Product, You must immediately report this to Live sms, providing sufficient information to enable Live sms to resolve, or arrange for the investigation of, the Service Issue;
- several factors outside of Live sms’ control may affect the accuracy of the Product Data and the Reports and that Live sms makes no warranty or representation regarding the accuracy of the Product Data; and
- it is Your responsibility to ensure that Client Content and the Database are uploaded to the Platform in the correct format and that Live sms will not be liable for any charges incurred by You as a result of, or relating to, an error or defect in Client Content or the Database which was directly or indirectly caused by Your operating environment.
You warrant that:
- You have, or will have, all rights, consents and authorisations, and has paid any applicable royalties or fees, required to upload and or broadcast Client Content, or any part of Client Content, including the right to authorise Live sms to do such things, and that the use of Client Content by You or Live sms in accordance with this Agreement will not infringe upon the copyright, trademark or other rights of third parties;
- You have the right and authority to enter into, and perform its obligations under, this Agreement and to use the Database for the purposes contemplated under this Agreement;
- You have taken all necessary action to authorise the execution, delivery and performance of this Agreement in accordance with its terms; and
- this Agreement constitutes legal, valid and binding obligations and subject to any stamping and registration is enforceable in accordance with its terms.
Live sms warrants that:
- the Services will be fit for the purpose of conducting Campaigns and have the performance and functionality described in Live sms promotional, technical, operational and user materials, and any additional, related written information provided to You;
- all Services provided under this Agreement will be performed in a professional manner and in conformity with the professional standards or such equivalent for comparable services in the industry;
- Live sms has the right and authority to enter into, and perform its obligations under, this Agreement;
- Live sms has taken all necessary action to authorise the execution, delivery and performance of this Agreement in accordance with its terms; and this Agreement constitutes legal, valid and binding obligations and subject to any stamping and registration is enforceable in accordance with its terms.
- You acknowledge that Live sms has entered into this Agreement in reliance on the warranties given by You under this Agreement.
Other than the warranties provided in this Agreement, Live sms excludes:
- all express and implied warranties, terms, conditions and guarantees in relation to the Services; and
- all liability for consequential or economic loss or damage which may arise in respect of the Services or otherwise in relation to this Agreement, or in respect of other equipment or property, or for loss of profit, business, revenue, goodwill or anticipated savings,
except to the extent that each may not be excluded under applicable law.
Live sms’ liability under this Agreement is limited to at Live sms’ option to:
- re-performance of the Service again (as applicable); or
- payment of the cost of having the Service re-performed again (as applicable).
Any warranty, term, condition or guarantee given by Live sms which is not excluded under this Agreement will not apply if the Platform or anything relating to the provision of the Services:
Has been altered, subjected to abnormal or unusual physical or electrical stress or environmental conditions, misused, or negligently handled or operated, except by Live sms; or has not been installed, operated, repaired, used or maintained in accordance with instructions made available by Live sms.
Live sms makes no representation that the Services will be suitable or lawful under the laws, rules or regulations of any jurisdiction or country other than Australia. You must comply with all laws, rules and regulations applicable to the country or jurisdiction applicable to its use of the Services.
You agree to indemnify, keep indemnified and hold harmless Live sms and its affiliates, partners, resellers, directors, officers, employees, and agents, from and against all Liabilities suffered in connection with, or relating to:
- a claim by a third party in respect of Client Content or Your use of the Services;
- a breach of Your obligations or warranties under clauses 6, 7 or 8 by You or your Personnel,
and further agree that Live sms may:
- suspend the Services if, and for so long as, Live sms reasonably suspects that a breach of any of these provisions has occurred; or
- apply for injunctive relief in any court of competent jurisdiction in addition to such other remedies available to Live sms either at law or in equity in respect of a breach of any of these provisions.
Each Party must not disclose any Confidential Information of the other Party other than:
- to the extent necessary to enable the Party to exercise or deal with its rights or obligations under this Agreement or to conduct its business generally, provided the recipient of the Confidential Information agrees to act consistently with this clause;
- to officers, employees, subcontractors, legal and other advisers and auditors of any Party or related body corporate of a Party, provided the recipient of the Confidential Information agrees to act consistently with this clause; or
- with the consent of the other Party.
This Agreement may be terminated by Live sms:
- immediately without notice where You have breached any term of this Agreement;
- immediately without notice where Client Account has been inactive for more than 12 months.
This Agreement may be terminated by You at any time.
Upon termination of this Agreement by Live sms under clause 10(a)(ii) or 10(a)(iii) or by You under clause 10(b)(i), You acknowledge and agree that all Wallet Credits already paid are to be forfeited to Live sms.
Upon termination of this Agreement for any reason, Your access to the Platform and provision of the Services will cease and all Client Content may be deleted by Live sms. Live sms will not be liable for any Losses suffered by You in respect of the termination of this Agreement and closure of Client Account.
Where You or Live sms are delayed or unable to perform our respective obligations under this Agreement due to the existence of a Force Majeure Event, the obligations of the relevant party under this Agreement will be suspended to the extent they are affected by the Force Majeure Event from the date on which the affected party notifies the other party of the Force Majeure Event until the passing of that Force Majeure Event. A party must take all reasonable steps to minimise any disruption to, and resume, the performance of its affected obligations.
If substantially all of a party’s obligations under this Agreement are suspended by a Force Majeure Event under clause 10(f) by more than 5 Business Days, either party may elect to terminate this Agreement without penalty.
If a Dispute arises, a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with this clause 11 except where the party seeks urgent interlocutory relief.
The Party claiming that a Dispute has arisen must give written notice to the other Party specifying the details of the Dispute (Dispute Notice).
On receipt of the Dispute Notice by the other Party (Dispute Date), the Parties must use their best endeavours to resolve the Dispute expeditiously and in good faith using informal dispute resolution techniques such as mediation, expert evaluation or determination or similar techniques agreed by them.
If, within 10 Business Days of the Dispute Date (or such further period as agreed in writing by them), the Parties do not resolve the Dispute or do not agree as to:
- the dispute resolution technique and procedures to be adopted;
- the timetable for all steps in those procedures; and
- the selection and compensation of the independent person to be engaged to conduct the dispute resolution process,
either party may request the President of the Institute of Arbitrators and Mediators Australia to nominate and appoint a mediator who is to act in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation Rules.
If the Dispute is not settled within 20 Business Days of the submission to mediation (unless such period is extended by agreement of the Parties), the Parties agree that the mediator appointed pursuant to this clause may submit the Dispute to arbitration in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Arbitration Rules.
The parties agree that:
- to the extent possible, each party must continue to comply with its obligations under this Agreement until the Dispute is resolved; and
- in the absence of manifest error, the decision of an arbitrator appointed in accordance with this Agreement is binding on the parties.
You must not assign or novate this Agreement, in whole or part, without obtaining the prior written consent of Live sms.
The covenants, conditions and provisions of this Agreement which are intended or capable of having effect after the expiration or termination of this Agreement (including provisions relating to warranties, privacy, confidentiality, indemnities, liability and Intellectual Property) must remain in full force and effect following any expiration or termination of this Agreement.
Any notice or other communication including, but not limited to, any request, demand, consent or approval, to or by a Party to this Agreement:
- must be in legible writing and in English addressed and marked “urgent” as shown below: if to the Company, to the office or postal or email address shown on the most recent written correspondence sent on behalf of the Company to a representative of You;
- if to You, to the office or postal or email address shown on the most recent written correspondence sent on behalf of You to a representative of the Company; or as specified to the sender by any Party by notice;
- where the sender is a company, must be signed by an officer of the sender;
is regarded as being given by the sender and received by the addressee: if by delivery in person, when delivered to the addressee;
- if by post within Australia, 3 Business Days from and including the date of postage;
- if by post to an address outside Australia or from outside Australia to an address inside Australia, 6 Business Days from and including the date of postage; or
- if sent by email, upon receipt of a non-automated response confirming receipt of the email, but if the delivery or receipt is on a day which is not a Business Day it is regarded as received at 9.00 am on the following Business Day.
This Agreement is governed by the laws of New South Wales and each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia.
If any provision of this Agreement:
- is or becomes void, voidable, illegal or unenforceable in its terms; and
- would not be void, voidable, illegal or unenforceable if:
- some words were omitted; or
- where it is capable of being read down, it were read down,
then those words are severed, and that provision will be read down accordingly (as applicable) and the rest of the Agreement will continue in full force and effect.
This Agreement embodies the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes any prior negotiation, arrangement, understanding or agreement with respect to the subject matter of any term of this Agreement. A variation of any term of this Agreement must be in writing and signed by all of the Parties.
All rights and remedies available to a party under this Agreement are cumulative and not exclusive of any other rights or remedies at Law.
Each party must do all things necessary (including executing documents) to give full effect to this agreement and the transactions contemplated by this Agreement.
Time is of the essence in this Agreement.
Definitions & Interpretation
Capitalised terms in this Agreement are defined as follows:
Additional Fees means the fees payable in respect of Additional Services, including without limitations to Support and Consulting Fees,;
Additional Services means any Services which are not Included Services;
Bonus Usage Credits means the bonus credit provided on the Commencement Date which may only be applied against Credit / Wallet;
Business Day means a day which is not a Saturday, Sunday, bank holiday or public holiday in Melbourne, Victoria;
Campaign means the distribution of Client Content to the Database via the Platform;
Claim means, in relation to a party, a demand, claim, action or proceeding made or brought by or against that party, however arising and whether present, unascertained, future or contingent.
Client Account means Your account for Services with Live sms;
Client Content means the content contained within a text message;
Commencement Date means the date of this Agreement;
Communications Services means the following services provided via the Platform:
- the distribution of SMS messages to the Database; and
- access to proprietary software for the creation of custom micro-websites and forms for distribution to the Database;
Confidential Information means all information of a confidential nature, in any form whether tangible or not and whether visible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement and includes, without limitation, any information (including Regulated Information) and material concerning the contractual or commercial dealings, financial details, products or services (current or proposed), customers, employees, internal policy, the Intellectual Property Rights of a party or dealings under this Agreement, but does not include information or material which:
- is already in the public domain, or enters the public domain other than due to a breach of this Agreement;
- can be proven to be already known by the receiving party other than through any disclosure under this Agreement; or
- obtained from a source other than the disclosing party or any of its Related Members or authorised representatives, where that source is entitled to disclose it without an obligation of confidence.
Customer means each person who is included in the Database;
Database means the database of mobile phone numbers, or other contact details relating to the Customers which are to receive Client Content distributed via Communications Services;
Fees means the Fees, Additional Fees and PAYG Fees as applicable;
Force Majeure Event includes the following events beyond the reasonable control of a party:
- act of nature;
- war or terrorism;
- national emergency;
- change of legislation, regulation, legal process or access to facilities, infrastructure or information controlled by a third party relating to the supply of the Services in any particular state, country or territory which may (in the opinion of the non-performing party, acting reasonably) materially adversely affect the supply or use of the Platform or Services; or
- other cause similar to the events described in this definition and beyond the reasonable control of the non-performing party,
- act or inaction of government or regulatory agency; and
- industrial action outside that party’s own workforce.
Included Services means the Services included with the payment of the Fee’s;
Insolvent means an event by which a party is:
- declared bankrupt;
- rendered insolvent;
- placed in or under receivership, receivership and management, liquidation or official management or administration;
- wound up or a resolution is made for the winding-up;
- made subject to any arrangement, assignment or composition (otherwise than as a result of voluntary corporate reconstruction); or
- subject to any other event that has similar effect to any of the events described in (a) to (e) in this definition.
Intellectual Property Rights means all industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semi conductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world. Intellectual Property has a corresponding meaning;
Invoice means an invoice issued by Live sms to You in respect of amounts owing to Live sms under this Agreement;
Law means any principle in common law or equity and any requirement under any legislation, rule, instrument, code of practice, ordinance or by law, present or future;
Liabilities means Claims, losses, damages, liabilities (direct and indirect), costs or expenses of any kind and however arising, including legal costs (on a full indemnity basis), penalties, fines and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.
Month means each calendar month during the Term;
PAYG Fees means the fees payable in respect of the Services provided on the basis of a PAYG Package;
PAYG Packages means a Package under which you pay for Services as you use them;
Personal Information has the meaning in the Privacy Act.
Personnel of a party means officers, employees, agents and contractors of that party.
Platform means platform and software accessible at Live sms.vidcorp.com and or related domains, mobile applications, Application Programming Interfaces, webservers and desktop applications, which enable You to receive the Services;
Privacy Law means any Law, Australian or otherwise, which affect privacy or any personal information (including its collection, storage, use or processing) including:
- the Privacy Act 1988 and includes any guidelines issued by the Office of the Australian Information Commissioner and corresponding Australian State privacy Laws; and
any codes of conduct, directives, principles or orders made under the legislation referred to in (a) above;
Product Data means the data produced from the Analytics Services and delivered to You via the Platform or included in a Report in respect of various metrics relating to a Campaign;
Regulated Information means all Personal Information and any other information or opinion, whether true or untrue, and whether or not recorded in material form, about any entity other than an individual which a party received or has access to under, or for the purpose of or in the course of carrying out its obligations under this Agreement;
Related Member has the meaning of ‘related body corporate’ as that term is defined in the Corporations Act 2001 (Cth);
Report means a report generated by the Software in respect of various Product Data;
Service Issue means any failure, error or defect in the provision of the Services by, or on behalf of, Live sms but excludes failures, errors or defects arising from, caused by or contributed to by Your acts or omissions or third parties acting on Your behalf including other providers of telecommunications, computers or other equipment or services (including internet services) or any failure, error or defect arising as a result of causes beyond the reasonable control of Live sms;
Services means the services provided by Live sms via the Platform from time to time, including without limitation, the provision of access to the Platform and use of the Software;
Support Fees means the fees to be paid by You in respect of Support Services requested which is not Included Support;
Support Services means the support provided by Live sms to You in regard to Your use of the Services;
Software means the software program used to provide the Services;
SPAM Laws means any Law, Australian or otherwise, which affect commercial electronic messages (including content, distribution and the rights of recipients) in the country or jurisdiction in which the Communications Services are to be received by a Customer, including without limitation:
- the SPAM Act 2003 and includes any guidelines issued by the Australian Communications and Media Authority (or other governing body); and
any codes of conduct, directives, principles or orders made under the legislation referred to in (a) above;
- Storage Fees means the fees charged by Live sms in respect of the storage of Client Content in excess of the Included Storage Capacity under a Package, as described at [insert link to Pricing/ Package details page];
Taxes means all taxes, charges, duties, levies, fees and other government imposts levied, assessed or collected, including any related fine or penalty (excluding GST);
Tax Invoice has the meaning given by the GST Law;
Term means the period from the Commencement Date until termination of this Agreement in accordance with clause 10;
User means each Personnel of You nominated by You to have a User Account;
User Account means a sub-account under Your Account through which a User is authorised to access and use the Services in accordance with this Agreement;
Live sms means Live eftpos Pty Ltd ABN 11 150 373 069;
Wallet means Your pre-paid account with Live sms in which the Wallet Credit is held;
Wallet Credit means the amount of funds applied to Your Wallet.
- Headings are for convenience only and do not affect interpretation.
- The singular includes the plural, and vice versa.
- Mentioning anything after includes, including or similar expressions, does not limit what else might be included.
A reference to:
- a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
- a clause, schedule, annexure or exhibit is a reference to a clause of or a schedule, annexure or exhibit to this Agreement;
- an agreement or document is a reference to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document;
- a party to this Agreement or another agreement or document includes the party’s successors, permitted substitutes and permitted assigns (and, where applicable, the party’s legal personal representatives);
- legislation or to a provision of legislation includes a modification or re enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
dollars and $ is to Australian currency; and
- notice is to notice in writing (including any visible means of reproduction of words in a tangible or permanently viable form).