Terms for texting and emailing – Community Marketing Partnership

Customer Terms for texting and emailing using our platform

Part A – Your Contract with Us

About this document

(a) These Customer Terms apply to all Services provided by us to you by agreement between us or, failing agreement, under section 479 of the Telecommunications Act.

Provision of Our Services

Compliance with Policies

(a) You must comply with any applicable Acceptable Use Policy we publish on our website or make available to you as well as all Laws applicable to your use of the Service.

(b) You must comply with any policy we publish on our website or make available to you.

Operational Directions

(a) Acting reasonably, we may give Operational Directions about a Service. Operational Directions will be directed to the safety, security or reliability of Facilities, compliance with Laws or dealing with an emergency. We will only give an Operational Direction as and when reasonably necessary.

(b) You must comply with any applicable Operational Direction.

Provider Requirements – General

(a) Telecommunications Services, including many of our Services, are commonly provided by means of Provider Facilities, provided by third party Providers.

(b) A Provider may only permit us to provide Service to you subject to certain requirements (Provider Requirements).

(d) Where a Provider Requirement states that a Provider has a certain right or power:

(i) The Provider itself may exercise that right or power; or

(ii) We may exercise the right or power on behalf of the Provider.

Use of Service by others

(a) The acts and omissions of your Staff and End Users with respect to a Service are deemed to be your acts and omissions.

(b) You must ensure that your Staff and End Users do not do (or omit to do) anything that would breach your Customer Contract if done (or not done) by you.

Using a Service

(a) When using a Service, you must comply with any applicable Laws.

(i) To not send Restricted Content;

(ii) for publishing, reproducing or advertising any message, information, symbol or other communication which is offensive or abusive or of an indecent, obscene or menacing character or for the purpose of causing annoyance, inconvenience or needless anxiety to any person (including our staff and personnel), or for any unlawful purpose;

(iii) To defame any person;

(iv) To breach the rights of any person;

(v) To infringe copyright;

(vi) To create, transmit or communicate communications which are defamatory, obscene, pornographic, discriminatory, offensive, in breach of confidence, illegal or which bring us or any of our Providers into disrepute;

(vii) To host or transmit Content which contains viruses or other harmful code or data designed to interrupt, damage, destroy or limit the functionality of any software, hardware or computer or communications equipment;

(viii) To send, allow to be sent, or assist in the sending of Spam, to use or distribute email harvesting software, or otherwise breach the Spam Act;

(ix) In a way that is misleading or deceptive, where that is contrary to Law;

(x) In a way that results, or is likely to result, in damage to property or injury to any person;

(xi) To transmit, store or process Cardholder Data; or

(xii) In any way that damages or interferes with our Services to other customers, our Providers or any Facilities or exposes us to liability.

(c) You are solely responsible for all acts or omissions that occur under your Account including any password provided to you by us, and the Content of any Messages transmitted through the Service. You acknowledge and agree that any Messages sent using your Account are deemed to have been sent and/or authorized by you.

(i) If we incur costs (including but not limited to increased Carrier fees and charges, surcharges or taxes) in connection with your failure to comply with your obligations under this clause 15, you acknowledge and agree that you are responsible for these costs and that we may pass these costs onto you by increasing the amount of the Charges in our sole discretion.

Telephone numbers – General

(a) We must comply with the Numbering Plan, which sets out rules for issuing, transferring and changing telephone numbers.

(b) You must not knowingly and deliberately do anything that causes us to breach the Numbering Plan or which makes it more difficult for us to comply with it.

Telephone numbers – Messaging Services

(a) Messaging Services are not a portable service within the meaning of the Numbering Plan.

(b) A number we use in association with your Account:

(i) Is not a portable number; and

(ii) Is not subject to number portability – within the meaning of the Numbering Plan.

(c) You are not a ‘customer’ for the purposes of the Communications Alliance code titled Mobile Number Portability C570:2009.

(d) Any Shared Number or Dedicated Number used in association with your Account has not been issued to you. You acknowledge that we retain ownership of any Dedicated Number used in association with your Account and you have no right to retain a particular number when your Customer Contract ends.

(e) We retain all rights, obligations and liabilities under the Numbering Plan and other legislation relevant to such numbers.

Maintenance and faults

(a) From time to time, the Network requires maintenance that may interfere with your Service. We will provide you with notice of any scheduled maintenance where reasonably possible.

(b) You may report faults in relation to a Service or the Network by contacting our help line during its operating hours.

(c) Before reporting a fault, you must take all reasonable steps to ensure that the fault is not caused by Equipment, which is not part of the Network.

(d) You must not report a fault directly to one of our Providers unless we ask you to do so.

(e) If you report a fault that turns out to be a ‘false alarm’, or not to relate to the Network, we may make a reasonable charge for our effort and expenses in responding to your report.

(f) We will use reasonable efforts to repair faults in Our Facilities within a reasonable period.

(g) We will use reasonable efforts to have our Providers repair faults in Provider Facilities within a reasonable period.

(h) You are responsible for maintaining and repairing your own Equipment

(i) If you cause a fault or damage to the Network, we may charge you the reasonable cost of repairing it.

Your cooperation

(a) You must give us all reasonable cooperation that we require in order to provide a Service to You, and fixing any problems that arise, and resolving any disputes that may arise or complaints that you may have.

(b) You acknowledge that, where a Service is a carriage service within the meaning of the Telecommunications Act, we or a Provider may be required to:

(i) intercept communications over the Service, and

(ii) monitor usage of the Service and communications over it.

(iii) retain and store data, including metadata, as required under Data Retention Laws.

Confidentiality, Intellectual Property and Privacy

Confidentiality

(a) Each party (Recipient) undertakes that, in respect of Confidential Information disclosed or made available to the Recipient by the other party (Disclosing Party), it will not disclose Confidential Information except:

(i) for the purpose for which the Confidential Information was disclosed to the Recipient under the terms of your Customer Contract;

(ii) to those employees, officers and agents of the Recipient who need to know the information for the purposes of your Customer Contract, if that person undertakes to keep confidential the Confidential Information;

(iii) to professional advisers and consultants of the Recipient whose duties in relation to the Recipient require that the Confidential Information be disclosed to them;

(iv) with the prior written approval of the Disclosing Party;

(v) if so required pursuant to a regulation, law, subpoena or court order (collectively, “Compelled Disclosure”), provided the Recipient gives the Disclosing Party notice of a Compelled Disclosure (to the extent allowed by law). The Disclosing Party will cover the Recipient’s reasonable legal fees for preparation of witness deposition, testimony to the extent Compelled Disclosure is in connection with a lawsuit or legal proceeding to which Disclosing Party is a party or to the extent such fees are incurred in connection with reasonable assistance provided to Disclosing Party’s effort to contest such Compelled Disclosure; or

(v) as otherwise required by law to disclose such information.

(b) The parties acknowledge that monetary damages alone would not be adequate compensation for a breach of the obligations of confidentiality under your Customer Contract, and a Disclosing Party is entitled to seek an injunction from a Court of competent jurisdiction on a breach or threatened breach of this clause.

(c) Despite anything else contained in your Customer Contract and in particular in this clause 21, we retain the unconditional and irrevocable right to disclose your identity and address and those of any of your Staff or End Users in the event of any complaint, query or request received from any regulatory or Government body or Carrier, in connection with your Customer Contract.

(d) Nothing in this clause 21 prevents us from naming you as a customer and user of our Services in our marketing materials.

Intellectual Property

(a) The parties agree that other than as provided in this clause 22, nothing in your Customer Contract transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights of a party.

(b) If a party provides any material to the other party that contains any Intellectual Property Rights which were developed by or on behalf of, or licensed to, the first party independently of your Customer Contract (Pre-Existing Material), then the first party grants to the other party a non-transferable, non-exclusive, royalty-free license to use, during the term of your Customer Contract, the Pre-Existing Material solely for the purpose of using or supplying the Services under your Customer Contract or otherwise as required by Law.

Privacy

(a) If a party is provided with, or has access to, Personal Information in connection with the Services, it must comply with the Privacy Act and any other applicable law in respect of that Personal Information, whether or not it is an organization bound to comply with the provisions of the Privacy Act. Details of our Privacy Policy can be found on our website.

(b) You acknowledge and agree that where you authorize or require us to collect or otherwise deal with Personal Information in your name or on your behalf in connection with providing the Services, that we do so as your agent.

(i) End Users to whom you send Messages have consented or otherwise opted-in to the receipt of such Messages and the collection of Personal Information as required by the Spam Act or any applicable Law or regulation; and

(ii) You have provided notice to End Users that we will have access to their Personal Information for the purposes of us providing the Services to you and that where our access to Personal Information on your behalf requires the consent of End Users, you have and will obtain this and provide us with evidence on request.

(d) You acknowledge and agree that except as may be required by your Customer Contract, we are not required to take steps to ensure that any Personal Information collected by you has been collected in accordance with the Privacy Act. Further, you indemnify us for any Claim by a third party that it has suffered Loss as a result of a breach of the Privacy Act.

(e) If the Services or the performance of our respective obligations under your Customer Contract involve any processing of any personal data (as defined in the GDPR) of, or sending Messages to, any individuals in the European Union, then we each agree that we shall comply with the additional terms set out in Parts C and D.

Prices, Billing and Payment Terms

Charges & payment: Prices

You warrant that you will use the Messaging Services exclusively for the sending of Standard Rate Messages containing Unrestricted Content to End Users and, where the Service supports it, receiving Messages from End Users. We may make an extra Charge if you send any Messages that are not Standard Rate Messages, equal to the amount charged to us by the Carrier plus a reasonable margin.

Any failure by a Carrier to deliver a Message to the intended recipient is beyond our control and you will not hold us liable in respect of any such failure.

Calculation of number of SMS

Information point: The SMS system allows a maximum message size of 160 characters. If a user sends a longer message, the system splits it to two or more separate SMS’s that may be reassembled on delivery so that they appear to be a single message (or, on some handsets, may be delivered as a series of separate SMS). When a longer message is split in this way, the components are no more than 153 characters long, because seven characters are used to facilitate re-joining on delivery. As a result, a longer message will result in more than one SMS being transmitted, and charges apply accordingly, as described in this clause.

Charges for an SMS Service will be based on the number of SMS you send, calculated in accordance with the following rules:

(a) If you include any Unicode characters and send via a Unicode supported service, content that contains no more than 70 characters counts as one SMS. In all other cases, content that contains no more than 160 characters counts as one SMS.

(b) If you include any Unicode characters and send via a Unicode supported service, content that contains more than 70 characters counts as one SMS for each block of 67 characters or part thereof. In all other cases, content that contains more than 160 characters counts as one SMS for each block of 153 characters or part thereof.

(d) Each press of a ‘spacebar’ generates a separate character.

(e) Some special symbols and non-English letters may comprise more than one character and you will be charged accordingly.

(f) Where an SMS is sent to multiple End Users, each one is counted separately.

Warranties and Indemnities

Your liability to us – General

(a) you must indemnify us for any loss or damage we suffer arising from or in connection with:

(i) your breach of your Customer Contract;

(ii) all Content sent or received on your Account;

(iii) any willful or negligent act or omission by you, your employees, agents or contractors;

(iv) a Claim against us by your Staff, any End User or any third party arising out of or in relation to your use of the Services and/or Equipment;

(v) your use of the Service in a way that breaches any Law or infringes the rights of any third party; and

(vi) acts or omissions of End Users; except to the extent that we are negligent or caused or contributed to the loss or damage.

Bought & scraped lists are strictly prohibited

You must have the consent of your contacts, and it must be:

active: the contact has given consent to text and or email them the messages you send using our platform

explicit: the contact knows which kind of messages they will receive and for what purpose

There must be one checkbox per data processing purpose, meaning you must ask for explicit consent for the purpose of registering an email address or a phone number in a mailing/phoning list used for commercial prospection purposes.

You must be able at any time to provide a proof of opt-in for each of your contacts

All of your marketing/bulk emails (meaning every email but the emails that are sent or triggered directly by an action of the user) must include an easily available “unsubscribe” link

All of your marketing/bulk SMS must include a process complying with the applicable law that allows the recipients to easily stop the sending of such communication

(b) Your obligations under this clause survives termination of your Customer Contract.

Your liability to us – requests for information or evidence

(a) This clause applies where we reasonably incur expense as a result of or in connection with:

(i) a police request for information or evidence in relation to you or your use of a Service; or

(ii) a Court or other competent authority’s direction for provision of information or evidence in relation to you or your use of a Service; or

(iii) a demand from a legal practitioner for information or evidence in relation to you or your use of a Service.

(b) If we incur any expenses under paragraph (a), you must reimburse them on request.

Our liability to you

(a) we must indemnify you for any loss or damage you suffer arising from or in connection with:

(i) our breach of your Customer Contract;

(ii) any willful or negligent act or omission by us, our employees, agents or contractors;

(iii) a Claim against you by any End User in relation to a Service we supply to you arising out of our negligence in supplying the Services to you; and

(iv) our supply of the Services in a way that breaches any Law or infringes the rights of any third party; except to the extent that you are negligent or caused or contributed to the loss or damage.

(b) Our obligations under this clause survive termination of your Customer Contract.

Limitation on Liability

(a) To the maximum extent permitted by law, the parties agree:

(i) that the maximum cumulative liability of a party under or in connection with your Customer Contract (including pursuant to an indemnity) will be the total amount payable to us by you under your Customer Contract in the 12 months preceding the incident or event giving rise to the liability;

(ii) that neither party will be liable to the other party for any loss of profit or indirect loss or consequential loss suffered by the other party arising out of your Customer Contract, whether arising as a result of any act, omission or negligence of a party or otherwise.

(iii) without limiting clause 43(a)(i) or (ii) above or any other liability limitation or exclusion applicable under your Customer Contract, we and our Related Bodies Corporate disclaim all liability whatsoever that may arise from your use of any third-party products and our licensors will have no liability of any kind whatsoever under your Customer Contract; and

(iv) that a party may only bring a claim against the other in its individual capacity, and not as plaintiff or class member in any purported class action or representative proceeding.

(b) Nothing in this document limits or excludes the liability of a party for claims relating to:

(i) personal injury or death directly arising from that party’s negligent acts or omissions;

(ii) infringement of intellectual property rights; or

(iii) fees and Charges payable.

Governing law

Your Customer Contract is governed by and must be construed in accordance with the laws of Victoria. You and we submit to the exclusive jurisdiction of the courts of the state of Arizona.

Delays

(a) Time is not of the essence in the performance of our obligations, including the provision of Services, under your Customer Contract.

(b) We are not liable to you for any delay in the provision of any Service.

No waiver

A failure, delay, relaxation or indulgence by us in exercising any power or right conferred under your Customer Contract (such as a right that we have due to your breach of your Customer Contract) does not operate as a waiver of the power or right.

Commercial Electronic Messaging

(a) Subject to this clause, we may send you Commercial Electronic Messages regarding telecommunications goods and services, and ancillary goods and services, and you consent to us doing so.

(b) Your consent under clause 23(a):

(i) applies while your Customer Contract is in force and for a year afterwards; and

(ii) is in addition to any other consent that you may give, or which may be inferred, for the purposes of section 16(2) of the Spam Act; but

(iii) terminates if you give us reasonable written notice that it is withdrawn.

(d) This clause survives the termination of your Customer Contract.