1. BACKGROUND
1.1. PCXCOM (‘PCXCOM’) offers to provide (the ‘Client’) Messaging Services subject to this Agreement.
1.2. The Messaging Service will be used by the Client exclusively for the provision of Standard Rate Messages and Unrestricted Content by the Client to End Users.
2. FEES AND CHARGES
2.1. Fees:
2.1.1. The Monthly Access Fee, Message Credits and/or any applicable Custom Development Fees are payable immediately on signing this Agreement.2.1.2. Any Messages sent by the Client shall be invoiced to the Client at the end of the month during which they were sent.
2.2. Payments:
2.2.1. PCXCOM will invoice the Client on a calendar monthly basis, and the Client agrees that payment will be made within fourteen (14) days of the invoice date.
2.2.2. The Client agrees that PCXCOM’s records are conclusive evidence of the Client’s order for, and use of the Messaging Service.
2.2.3. The Client agrees to pay for every Message sent using PCXCOM’s Messaging Service irrespective of receipt by the intended recipient. On written request received within 30 days of the Message being sent, PCXCOM will provide documentary evidence to the Client that the Message in question was successfully delivered to the relevant Carrier. Note that message logs are destroyed after 30 days. Any failure to deliver a Message subsequent to successful delivery to the Carrier is beyond the control of PCXCOM and the Client will not hold PCXCOM liable in respect of any such failure.2.2.4. PCXCOM may terminate access to the Messaging Service without notice if any payment due from the Client remains unpaid for a period of seven (7) days after the due date.2.2.5. The Client is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and indemnity legal costs incurred by PCXCOM for enforcement of obligations and recovery of monies due from the Client under this Agreement.2.3. Message Credits:2.3.1. The Monthly Access Fee may include Message Credits which may be redeemed by the Client against Messaging Fees.2.3.2. Message Credits are non-refundable and do not roll-over into the next calendar month. That is, unused Message Credits in any given calendar month are forfeited by the Client.
3. CLIENT OBLIGATIONS
3.1. The Client agrees to comply with any instructions concerning access to and/or use of the Messaging Service that PCXCOM may give to it from time to time and agrees not to do anything that may jeopardise the security or integrity of any part of PCXCOM’s systems or platforms.3.2. The Client expressly acknowledges that PCXCOM will not, at any time, be responsible for the Content, or the destination of any Content conveyed by or to the Client. 3.3. The Client accepts responsibility for all aspects of their Account, including the actions of all persons in possession of the Client’s username and password. 3.4. The Client agrees not to use the Messaging Service to transmit any information or material that violates State or Federal law, or transmit any material that is in contravention of any privacy or copyright rules or any other proprietary interest. 3.5. Without limiting the operation of Clause 3.3, the Client agrees not to use or seek to use the Messaging Service 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, or for any unlawful purpose. 3.6. The Client agrees that the Messaging Service is to be used solely for the provision of general information to End Users and provision of Restricted Content is specifically prohibited. The Client acknowledges that the Carriers and PCXCOM may audit Content of services from time to time and that a breach of this clause may result in a breach of the Client’s obligations under this Agreement, or potentially the termination of this Agreement.3.7. The Client agrees not to use PCXCOM’s services, connections, or facilities to:(a) transmit computer worms or viruses;(b) access, any other PCXCOM computer systems or networks without PCXCOM’s consent or disrupt or damage any PCXCOM computer systems or network;(c) forge any messages; or(d) send any obscene, sexually explicit, abusive or defamatory material or material that violates or is contrary to any Commonwealth, State, Territory or local law or regulation or guidelines.3.8. In accordance with the Australian Communications Industry Forum (“ACIF”) Industry code and the Australian SPAM Act 2003, the Client agrees not to send marketing messages to any person unless:(a) the recipient has first consented to receiving the marketing message; and (b) the recipient has been provided with a means to opt-out of receiving the marketing message, such as a statement in the message of “Reply STOP to opt-out”; and(c) the source of the marketing message is clear.
3.9. In accordance with the New Zealand Unsolicited Electronic Messages Act 2007 (the “Act”), the Client agrees that they will not send or cause to be sent messages to any person which contravene the Act in any way or amounts to a Civil Liability Event within the meaning of the Act.
4. PROVISION OF SERVICE TO OTHERS4.1. The Client will, to the best of their ability, ensure that any third party using its facilities is bound by the terms and conditions of this Agreement.4.2. The Client will, to the best of their ability, ensure the End User is provided with all necessary and required terms and conditions for any goods or services that the Client is providing through the Messaging Service.4.3. If the Client becomes aware of any End User that does not wish to continue to receive Messages, it must take all necessary steps, including notifying PCXCOM where the End User is a PCXCOM Client, to ensure that the End User does not receive any further Messages.
5. PROPERTY RIGHTS5.1. The Client agrees that PCXCOM’s software is protected by copyright and trademark and remains the property of PCXCOM and may not be copied without prior consent in writing from PCXCOM. 5.2. PCXCOM grants to the Client a non-exclusive, non-transferable licence to use the Intellectual Property Rights in and to the PCXCOM Facilities for the sole purpose of utilising the Messaging Service available to End Users over the PCXCOM Facilities as described in this application form or as otherwise notified by PCXCOM.5.3. PCXCOM will withdraw all Messaging Services should it have reason to believe that the Client has been, or has been attempting to undermine the Intellectual Property Rights of PCXCOM.
6. INDEMNITIES6.1. The Client indemnifies PCXCOM from all costs (including legal costs on a full indemnity basis), expenses, loss, liabilities, suits, actions, damages or claims arising or in any other way connected with the Client’s use of their Account or the Messaging Service, or any other person using the Client’s username and password.6.2. In particular, the Client agrees to indemnify PCXCOM in connection with any action, claim or demand which may be instituted against PCXCOM arising out of:(a) any wilful or negligent act or omission by the Client, its employees, agents or contractors;(b) an actual infringement or allegation that the Intellectual Property Rights of any person have been infringed by the use of the Client’s Facilities; or(c) any Messages sent by the Client whether or not the claim is brought or made by a PCXCOM Client or another party.6.3. Any indemnity in this Agreement is a continuing obligation, independent of other obligations under this Agreement and continues after this Agreement ends. It is not necessary for PCXCOM to incur expense or make payment before enforcing a right of indemnity under this Agreement.
7. DISCLAIMER
7.1. PCXCOM (including its affiliates, directors, officers, employees, agents, contractors, successors or assignees) will not be liable for any loss or damage caused to the Client or anyone else howsoever arising as a result of using Messaging Service. This includes but is not limited to loss or damage caused by loss or delay of Messages or any loss caused by the negligence of PCXCOM, their employees or contractors.7.2. The Client accepts that PCXCOM is in part reliant on Carriers and other third party suppliers (collectively referred to as “Telecommunication Providers”) and the Client will not hold PCXCOM liable in any way whatsoever for PCXCOM’s inability to provide service as a result of faults that are the responsibility of the Telecommunication Providers. In the event of a Telecommunication Provider fault, PCXCOM must, to the best of their ability, and upon written request by the Client, communicate in writing to the Client all relevant information relating to the Telecommunication Provider service fault to evidence the consequential damage.7.3. The Client will be responsible at all times for maintaining the security of its and its End User’s data, and PCXCOM bears no liability for the loss or damage in part or whole, of such data, to the extent that such loss or damage has been caused or contributed to by the Client.7.4. PCXCOM does not warrant that its Messaging Service will be error-free or uninterrupted, or that transmission will be instantaneous. Please consult PCXCOM’s Service Level Agreement for further information.7.5. The Client acknowledges that there has been no reliance by it on PCXCOM’s skill or judgement or written or oral representations in deciding whether the Messaging Service is fit for a particular purpose or meets particular criteria. 7.6. The Client acknowledges that the internet is not an inherently secure system and undertakes responsibility for the protection of its information and data.7.7. The Client acknowledges that the internet may contain viruses (including other destructive programs), which may, if not eliminated, destroy parts or all of the data contained within its system, and that PCXCOM has no control over these viruses. 7.8. PCXCOM does not provide any filtering or checking of data to eliminate these viruses, and the Client agrees to provide its own mechanism for checking its system for viruses, and to hold PCXCOM harmless from any damage caused by viruses obtained through the Messaging Service.
8. TERM AND TERMINATION 8.1. This Agreement commences on the date the Application is executed and will continue for an initial term of 12 months (“Initial Term”) unless otherwise terminated in accordance with this clause 8.8.2. The Agreement will roll-over an annual basis for a further 12 months. 8.3. The Agreement may be terminated by either party with 30 days written notice to the other Party prior to the end of each Agreement term.8.4. PCXCOM may:(a) immediately cease the conveyance of any Messages that it considers is or may be in breach of guidelines, this Agreement and/or any applicable laws or regulations; or(b) suspend the Client’s access to the offending service(s) only if it considers that the Client is or may be in breach of guidelines, this Agreement and/or any applicable laws or regulations.8.5. PCXCOM may terminate this Agreement immediately if:(a) PCXCOM notifies the Client that all Dedicated Numbers made available for use by the Client are no longer available;(b) a receiver, liquidator, provisional liquidator or administrator is appointed over any of the Client’s undertakings or assets or if the Client enters into any arrangement with any creditors or any class creditors;(c) it becomes unlawful for the Client to perform its obligations under this Agreement or the performance by a party of their obligations under this Agreement is in breach of a law; (d) the Client sends any Restricted Content to End Users;(e) the Client threatens the operation, technical integrity or liability of PCXCOM’s Facilities in the reasonable opinion of PCXCOM; or(f) PCXCOM notifies the Client in writing of a breach of this Agreement and the Client fails to remedy the breach to the satisfaction of PCXCOM within 7 Business Days of notification.8.6. When this Agreement ends:(a) PCXCOM will immediately remove access to and disconnect the Client’s Facilities from the PCXCOM Facilities;(b) the Client must return and/or destroy all material provided by PCXCOM to it under this Agreement; and(c) clauses 5, 6, 9 and 10 shall continue to apply. 8.7. If this Agreement is terminated during the Initial Term for any reason (other than by breach of Agreement by PCXCOM or an act of force majeure), the Client agrees to pay PCXCOM an Early Termination Fee equal to the Monthly Access Fee by the number of months remaining until the end of the Agreement Term as specified in Schedule 1.8.8. Any termination is without prejudice to any rights, liabilities or obligations accruing as at such termination.
9. GENERAL
9.1. This Agreement shall be governed and interpreted according to the laws of Queensland, Australia.9.2. In the event that any provision of this Agreement proves to be illegal or unenforceable that provision is deemed to be omitted from this Agreement without affecting the legality of the remaining provisions. The remaining provisions of this Agreement shall continue in full force and effect.9.3. Neither party is liable for any delay or failure to perform its obligations under this Agreement due to any event beyond its reasonable control including an act of god, inclement weather, flood, lightning, fire, industrial action the act or omission of any government, terrorism, war, military operations or riot.9.4. Notices(a) Notices under this Agreement may be delivered by hand, by mail, email or by facsimile to the other Party’s registered offices and/or electronic addresses. (b) Unless a later time is specified in it, a Notice takes effect from the time it is actually received or taken by the intended Party.
10. CONFIDENTIALITY
10.1. PCXCOM shall keep confidential any information sent by the Client using the Messaging Service.10.2. Outside the operation of clause 10.2, each party (Recipient) undertakes that, in respect of Confidential Information disclosed to the Recipient by the other party (Disclosing Party), it will not disclose Confidential Information except:(a) for the purpose for which the Confidential Information was disclosed to the Recipient under the terms of this Agreement;(b) to those employees, officers and agents of the Recipient who need to know the information for the purposes of this Agreement, if that person undertakes to keep confidential the Confidential Information;(c) to professional advisers and consultants of the Recipient whose duties in relation to the Recipient require that the Confidential Information be disclosed to them; (d) with the prior written approval of the Disclosing Party; or(e) as otherwise required by law to disclose such information.10.3. The parties acknowledge that monetary damages alone would not be adequate compensation for a breach of the obligations of confidentiality under this Agreement, 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. The parties further agree that the party seeking the injunction is not required to provide an undertaking as to damages for the purposes of obtaining the injunction.10.4. The party against whom the injunction is sought agrees that it will not object to the granting of such an injunction.10.5. Despite anything else contained in this Agreement and in particular in this clause 10, PCXCOM has the unconditional and irrevocable right to disclose the identity and address of the Client and any End User in the event of any complaint received from any regulatory or Government body or licensed Carrier, in connection with the Content made available by the Client.
11. INTERPRETATION
In this Agreement unless the context indicates a contrary intention:(a) words denoting the singular number shall include the plural and vice versa;(b) words importing persons shall include corporations and other entities recognised by law and where a person is referred to as the trustee of any Trust or Settlement the reference is to that person in his capacity as such;(c) headings are for convenience only and shall not affect interpretation;(d) references to clauses are references to clauses of this Agreement and references to sub clauses are references to sub clauses of this Agreement;(e) references to this Agreement shall be deemed to include references to this Agreement as amended, novated, supplemented, varied or replaced from time to time;(f) references to any party to this Agreement shall include its transferees, successors or permitted assigns;(g) words denoting any gender shall include all genders; (h) each Schedule and Appendices (if any) to this Agreement hereby incorporated into this Agreement, provided that if there is any inconsistency between any such Schedule and the provisions of this Agreement, the provisions of this Agreement shall prevail;(i) reference to “$” and “dollars” are to Australian currency;(j) a reference to an Act of Parliament, ordinance, code or other law includes regulations and other statutory instruments under it and shall include any amendment, consolidation, modification or re-enactment thereof or any replacement legislation; (k) a reference to a party binds if a corporation its liquidators, controllers, receivers, managers and administrators and if an individual their executors, trustees and beneficiaries; and(l) no provision of this Agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this Agreement or that provision.
12. DEFINITIONS
12.1. Account means the entirety of the Client’s rights and obligations under this Agreement, as well as any usernames, passwords, software, access to PCXCOM services and infrastructure, Dedicated Numbers, and Messaging Services provided by PCXCOM.
12.2. Business Day means a day upon which trading banks are open for business in Victoria.
12.3. Carrier means an Australian or international telecommunications carrier and includes in Australia Telstra, Optus, Virgin, Vodafone or Three, in New Zealand Telecom NZ and Vodafone NZ, and various other telecommunications carriers throughout the world
12.4. Confidential Information means, in relation to each party (for the purposes of this definition, the Discloser):(a) all information relating to or used by the Discloser or its Related Body Corporate, including know-how, trade secrets, ideas, marketing strategies and operational information;(b) all information concerning the business affairs (including products, services, Clients and suppliers) or property of the Discloser or its Related Body Corporate, including any business, property or transaction in which the Discloser or its Related Body Corporate may be or may have been concerned or interested; (c) any other information disclosed by or on behalf of the Discloser or its Related Body Corporate which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential;(d) the terms & the actual existence of this Agreement; andincluding any such information made available to the Discloser or its Related Body Corporate by any third party, but excluding any information that:(i) is publicly known or becomes publicly known other than by breach of this Agreement or any other obligation of confidentiality;(ii) is disclosed to the other party without restriction by a third party and without any breach of confidentiality by the third party; or(iii) is developed independently by the other party without reliance on any of the Discloser's Confidential Information.
12.5. Content means the content or content services to be made available by the Client for purchase and/or supply to End Users, as described in the Application Form.
12.6. Client Facilities means material owned or licensed by the Client (including its IT systems, documentation, templates and data, and web site) which is used by either party to this Agreement in the performance of their obligations under this Agreement and any modification to same.
12.7. Dedicated Number means a Standard Rate digital mobile service provided by PCXCOM to the Client under this Agreement for exclusive use as part of the Messaging Service.
12.8. End User means the party who receives Messages sent to their mobile handset or the Client’s application which receives Messages.
12.9. Fees mean the License Fees, Monthly Access Fee and Custom Development Fees.
12.10. Heartbeat Messages means automated messages sent by PCXCOM or by the Client to ensure the Messaging Service is operating in accordance with the Service Levels.
12.11. Intellectual Property Rights means all rights conferred under statute, common law and equity in and in relation to inventions, designs, trademarks, trade names, logos, and get up, circuit layouts, semi-conductor and copyright and any other intellectual property rights including moral rights, confidential or other proprietary rights, or other rights to registration of such rights.
12.12. Message means text, voice or binary content generated from either a mobile telephone or Client application such as a web site, call/contact centre or PC terminal, and received by the mobile telephone or Client application.
12.13. Message Credits means a credit to the Client’s Account of the Messaging Fee for each Message.
12.14. Messaging Fee means the fee set out in Schedule 1 and charged by PCXCOM to the Client on a monthly basis per Message sent through the Messaging Service.
12.15. Messaging Service means the service provided by PCXCOM which enables the Client to 1) send and receive Standard SMS Rate Messages through PCXCOM’s SMS gateway 2) Email 3) Voice Messaging and 4) other Message mediums, for which the Client is billed on a per Message sent basis.
12.16. Monthly Access Fee means the fee set out in Schedule 1 and charged by PCXCOM to the Client on a monthly basis for access to the Messaging Service.
12.17. Opt Out means the ability for an End User to stop receiving any further text messages from the Client.
12.18. PCXCOM Facilities means PCXCOM’s infrastructure, gateway and technology which the Client will connect to in order to operate the Messaging Service.
12.19. PCXCOM means PowerConnex Pty Ltd.
12.20. SMS means Short Messaging Service.
12.21. Standard SMS Rate Messages means Messages that are billed by Carriers at standard SMS rates, and in particular are not premium rate SMS Messages which are billed by the Carriers at a fixed rate applicable to a particular premium rate service. A total of 160 standard characters is included in a Standard SMS Rate Message. This may include standard characters used by the SMS Messaging Service needed to compile and/or send messages. SMS Messages with greater than 160 characters, are charged one (1) Standard Rate for each group of 153 standard characters or part thereof.
12.22. Restricted Content means the Content that:(a) is likely to be, having regard to the contemporary attitudes of Australian society, offensive to reasonable adults;(b) is likely to be, having regard to the contemporary attitudes of Australian society, unsuitable for minors;(c) promotes, incites or instructs in matters of crime;(d) describes, incites or promotes unlawful sexual activity;(e) promotes or incites violence against any person or group, or incites racial hatred;(f) causes unnecessary alarm, distress or panic;(g) breaches a code of practice that applies to the Service;(h) is false, misleading or deceptive, or likely to mislead or deceive;(i) provides financial advice to any person;(j) is out of date, having regard to information generally available, subsequently published, or released, or made available; or(k) is for the purpose of providing any warning or notification about a serious risk to the safety of persons or property (for example, emergency services).
12.24 Unrestricted Content means the Content not falling within one of the restrictions in clause 2.26 of this Agreement.
12.25 Voice Messaging means single or multiple voice recordings that are distributed to single or mass recipients to fixed line and/or mobile devices.
