Terms and Conditions

In these Terms:

The Price is MessageWorks's current price for the Services as at the Contract Date or the Price quoted by MessageWorks.

By agreement, payment for the Services will be made by either (a) pre-authorisation of credit card or pre-authorisation bank direct debit; or (b) in arrears on 14 days terms from invoice date.

All expenses, costs, fees and disbursements incurred by MessageWorks in recovering or attempting to recover the Price and any other amounts payable under these Terms shall be recoverable from the Account Holder as part of the Price.

Whenever MessageWorks provides Keyword Customer List Build Services resulting in new customer SMS records being created, the Account Holder shall pay the deferred payment fee of 180 cents per record on download.

The Account Holder agrees that MessageWorks's records are conclusive evidence of the Account Holder's order and the basis for determining all amounts owing.

MessageWorks reserves the right to review the Price at any time. If, following any such review, there is any change to the Price, that change will take effect 30 days after notice is given to the Account Holder.

Prices quoted per SMS are for delivery of a single standard SMS. The Global Standard for a single SMS is up to 160 characters long. SMS messages can be longer, but the price increases when the message length exceeds 160 characters.

The rights, powers and remedies provided for in the Contract (including these Terms) are in addition to, and do not limit or exclude, any right, power or remedy provided by law.

The Account Holder's obligations to pay amounts incurred to MessageWorks prior to termination shall be continuing and separate obligations which will survive termination of the Contract.

The Account Holder can receive a full download of the database subject to payment of 50 cents per record.

This Contract can be cancelled by either party by giving not less than ninety days prior written notice of cancellation.

Unless expressly included in the quotation from MessageWorks, the Price will be stated before the addition of GST and any other taxes and duties charged or levied in connection with the supply of the Services to the Account Holder. GST and all such other taxes and duties will be charged to and borne by the Account Holder at the rate applicable at the date of any relevant invoice.

If the Account Holder fails to pay any Amounts Owing on the due date for payment, MessageWorks shall, without prejudice to any other rights or remedies available to it at law:

• Be entitled to treat any such failure as a repudiation of the Contract by the Account Holder and cancel any Contract in full or in part;
• Be under no obligation to deliver any Services to the Account Holder;
• Be entitled to charge the Account Holder default interest at the rate of 1.5% per month on a cumulative basis on all overdue amounts, such interest to be calculated from the date payment is due. The parties agree that such default interest is not a penalty but is a true measure of damages incurred by MessageWorks.

MessageWorks accepts no responsibility for delay in delivery of Services caused by circumstances beyond MessageWorks's control.

Delivery is deemed to occur when the device receives the service.

MessageWorks will not be liable for:

• Failure to deliver the Services by a specified date;
• An event beyond MessageWorks's control;
• Any negligence, misrepresentation or other act or omission by MessageWorks or its agents;
• Any loss or damage resulting directly or indirectly from any of the above;
• Any loss of business or profits, or any consequential, indirect or special loss, damage or injury whether arising under the Contract, in tort, in equity or otherwise.

Despite anything else, any liability of MessageWorks arising under the Contract, in tort, in equity or otherwise, will not exceed the Price of the Services in relation to which the liability has arisen.

If an Event of Default occurs, and without prejudice to any other rights, powers or remedies MessageWorks may have:

• MessageWorks may suspend or terminate the supply of Services to the Account Holder and any of its other obligations under the Contract, or cancel all or any part of any order with the Account Holder which remains unperformed;
• All Amounts Owing shall immediately become due and payable notwithstanding that the due date for payment has not arisen.

MessageWorks will not be liable to the Account Holder for any loss or damage the Account Holder suffers because MessageWorks exercises any rights, powers or remedies after the occurrence of an Event of Default.

Copyright in all technical information provided by MessageWorks concerning the Contract is vested in MessageWorks.

If the Services are to be supplied to the Account Holder's design, the Account Holder warrants that the supply of the Services by MessageWorks will not infringe any patent, copyright, registered design or other rights of any other person. The Account Holder agrees to indemnify MessageWorks against any liability it incurs as a result of any such claim.

The Account Holder agrees that MessageWorks's software is protected by copyright and trademark and remains the property of MessageWorks and may not be copied without prior written consent from MessageWorks.

MessageWorks will withdraw all services should it have reason to believe that the Account Holder has been, or has been attempting to undermine the Intellectual Property Rights of MessageWorks.

MessageWorks shall keep confidential any information sent by the Account Holder.

The Account Holder does not prevent MessageWorks from disclosing the existence of this Contract for the purposes of marketing MessageWorks to current and future clients.

MessageWorks has the unconditional and irrevocable right to disclose the identity and address of the Account Holder in the event of any complaint received from any regulatory or governmental body or licensed Carrier, in connection with the Content offered by the Account Holder.

The Account Holder agrees not to use access to MessageWorks's services, connections, or facilities to:

• Circulate or send any unsolicited or unauthorised marketing, publicity or advertising material message to any person, including a message designed to promote goods or services, unless that person has consented to receiving the message, has a means to opt-out, and the message clearly identifies the source;
• Transmit computer worms or viruses;
• Access any MessageWorks computer systems or networks without MessageWorks's consent or disrupt or damage any MessageWorks computer systems or network;
• Forge any messages; or
• Send any obscene, sexually explicit, abusive or defamatory material or material that violates any Commonwealth, State, Territory or local law or regulation.

In accordance with the Australian Communications Industry Forum (ACIF) Industry code and the Australian SPAM Act 2003, the Account Holder agrees that they will not send marketing messages to any person unless: (a) the recipient has first consented to receiving the marketing message; (b) the recipient has been provided with a means to opt-out; and (c) the source of the marketing message is clear.

If an End User makes an enquiry about Content to MessageWorks, MessageWorks may refer it to the Account Holder for resolution. The Account Holder must then resolve this enquiry within one (1) Business Day.

If after MessageWorks's referral that End User makes another enquiry about Content to MessageWorks, MessageWorks may again refer it to the Account Holder and the Account Holder must resolve the enquiry within a further one (1) Business Day of that second referral, and provide written confirmation to MessageWorks that the matter has been resolved.

MessageWorks will assist the Account Holder in resolving an End User complaint.

The Account Holder may not assign any of the Account Holder's rights or obligations under the Contract without MessageWorks's prior written consent.

MessageWorks may assign any of MessageWorks's rights under the Contract without the Account Holder's consent.

The Account Holder must give MessageWorks not less than fourteen days prior written notice of any proposed change in the Account Holder's name and/or any other change in the Account Holder details (including, but not limited to, changes in the Account Holder's address, trading name or business practice).

MessageWorks reserves the right to review any of these Terms at any time and from time to time. If, following any such review, there is any change to these Terms, that change will take effect 30 days from the date on which MessageWorks gives notice to the Account Holder of such change.

The Contract and these Terms are governed by the law of Victoria.

In the event that any provision of this Contract proves to be illegal or unenforceable, that provision is deemed to be omitted from this Contract without affecting the legality of the remaining provisions. The remaining provisions of this Contract shall continue in full force and effect.