You must not use our services, or allow anyone else to use our services, for illegal or improper uses, including uses that are not reasonably incidental to your use of our services or sanctioned by us. For example:
(a) for fraudulent, criminal or other illegal activity, including in a way that constitutes an infringement or the commission of an offence against any law, standard or code;
(b) in a way that is defamatory or in any way breaches another person's rights, including copyright or other intellectual property rights;
(c) to misuse another party's confidential information;
(d) to store, publish or send any material that is illegal, defamatory, pornographic, obscene, depicts acts of violence, sexual acts or which may incite or perpetuate hatred against any person or group or have the likely effect of causing offence or harm;
(e) in any way which breaches any security or other safeguards or in any other way which harms or interferes with our services, a network or the networks or systems of others, including in any way which results in a virus, worm, trojan horse or similar program affecting us, another provider or anyone else;
(f) to send or receive instructions which, if implemented, might cause damage or injury to any person or property;
(g) to falsify or delete any author attributions, legal or other proper notices or proprietary designation or labels of the origin or source of software or other content contained in a file that you upload;
(h) in any way which menaces or harasses any person or causes damage or injury to any person or property;
(i) to create, use, copy, download or provide any directory of our services, users or any other user or usage information to a person or organisation;
(j) in any way which enables you to make use of our services without charge, when a charge is normally payable; or
(k) to continue to exploit our services in a manner contrary to our offers after receiving 48 hours notice from us.
While using our services, you must not send or upload:
(a) anything that is protected by copyright, unless you have permission of the copyright owner;
(b) unsolicited bulk or commercial messages, as defined by the SPAM Act 2003, or other unauthorised messages, or knowingly send any viruses; or
(c) anything that is obscene, offensive, abusive, defamatory, menacing, harassing, threatening or is unlawful in any other way.
Accounts or users may have accounts terminated for failing to comply with these terms. To the extent permitted by these terms and by law, terminated accounts receive no refunds for unused credits. 5centSMS may disable access to an account, and terminate our services to you without notice in the following circumstances, at our discretion:
(i) you have not paid your charges in a reasonable time;
(ii) you have breached an important term of your agreement or a number of less important terms which together amounts to a serious breach and you have failed to rectify the breach after being given 7 days' notice of our intention to terminate your agreement (whether or not we have Suspended your services as permitted by your agreement);
(iii) we have reasonable grounds to suspect fraud or other illegal conduct in relation to the services or your account by you or someone using your account;
(iv) you die or become bankrupt, insolvent or subject to a winding up order or similar insolvency event and we reasonably believe we are unlikely to receive payments for amounts you owe to us;
(v) we have reasonable grounds to believe that your communications with our staff or agents have been menacing, threatening, amount to harassment or have otherwise been of an unacceptable nature;
(vi) we receive a serious complaint against you which we have reasonable grounds to believe to be genuine and which we reasonably believe gives rise to a threat or risk to the security of the our services;
(vii) we have other reasonable grounds for believing a threat or risk exists to the security of our service and we reasonably believe that terminating your agreement will minimise this threat or risk; or
(viii) 5centSMS can no longer provide services for any reason beyond our control or any reason that we cannot reasonably resolve within five business days.
Adding, removing or modifying identifying mobile number information in an effort to deceive or mislead is prohibited. Attempting to impersonate any person by using forged numbers or other identifying information is prohibited and may be considered illegal activity. All users fully indemnify 5centSMS for any and all actions arising from misuse of this service.
We guarantee the platform will be available and responsive 99.99% of each calendar month. This includes Website, API and message processing. Messages will be processed in the order they are submitted by each customer and may be rate limited.
We cannot guarantee the delivery of every message. We will investigate the cause of any failed delivery however and will re-credit an account should the fault lie within the 5centSMS System. To the extent permitted by law, we will not re-credit messages which were not delivered by a failure of the recipients network - or any network beyond our control.
Messages which are scheduled to be sent at a certain date or time are not guaranteed to be sent or delivered at the date and time specified. Scheduled messages may be sent or delivered before or after the customer specified date. Messages may be re-credited to an account on the occasion that a scheduled message is sent more than 24 hours before or after the specified time due to a fault in our system.
Customers enrolled in a support plan which includes guaranteed uptime and root cause analysis (RCAs) are entitled to a service credit and documented root cause report for any outage which affects service uptime or message delivery for more than 52 minutes in a single calendar month, up to a maximum of one credit per month. The credit must be claimed within 30 days of the ticket being opened. Where one credit is the value of one month's support plan fees. RCA report will be provided with 14 days of the request.
Virtual Mobile Numbers (VMNs) can be purchased at the rate indicated on the Account Dashboard. By purchasing a VMN you are agreeing to allow us to charge you credit card (as supplied) the agreed rate every 30 days. VMN numbers may be cancelled at any time by either the customer or us. Refunds or credits will not be given towards unused VMNs. Due to circumstances beyond our control your VMN may need to be changed at any time without notice, if this occurs we will notify you. We will not be held liable for any losses or damages caused by the loss or change to a VMN.
Where services are not pre-paid, if we take legal or other collection action against you for non-payment of the Charges, we will require you to pay our reasonable costs and expenses (including legal costs) of taking that action plus interest. Interest will be calculated at a rate of 10% pa calculated on the daily balance of the unpaid amount from the due date until the date of payment in full.
If our services are used by you or any other person, with or without your permission, to acquire goods and services from third parties, you are responsible for paying those third parties directly.
Credits on your Account are non-refundable, non-transferable and not redeemable for cash unless you terminate your agreement because we are in serious breach of it, in which case we will refund on request from you a pro-rata portion of any Charges you may have paid in advance).
You will be required to purchase messages for your Account in order to use the Service. New purchases may not appear on your Account immediately after payment. Charges for our services used on your Account, whether used by you or another person with or without your permission will be deducted from your balance.
Software integration services, custom integrations or legacy protocol support (such as depreciated API versions, email or SMPP) may raise additional costs or requirements. These will be shared and agreed to by both parties in writing or on the website before activation of the service. The costs agreed to may include a one time fee, monthly fee, purchase of a supporting service (such as Virtual Mobile Number or Support Plan) or a minimum monthly volume commitment.
You must keep all passwords safe and secure and must not disclose them to any third party. You should immediately change any password with us if it is being used by someone without your permission. To the extent permitted by law, we will not re-credit messages which were sent from your account by an un-authorised person in possession of your account password.
(a) all other terms, conditions and warranties relating to our services are excluded;
(b) we have no liability to you for any loss of income, business or profits, for any loss or corruption of data, failure to deliver any message, or for any consequential loss sustained and arising out of or in connection with your agreement, your use of the our services, whether arising under contract, tort (including negligence) or otherwise;
(c) we are not liable for any loss or damage that was not reasonably foreseeable when you entered into the agreement;
(d) we are not liable for any loss or damage to the extent that it was caused by you, or to the extent that you have failed to take reasonable steps to minimise or prevent the loss; and
(e) we are not liable for any delay or failure to perform our obligations under your agreement, or to provide our services, if such delay or failure is due to a Force Majeure Event.
Where the goods or services supplied to you are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability for breach of a guarantee (other than liability for guarantees as to title, undisclosed securities and undisturbed possession in relation to goods supplied to you, which we cannot limit) is limited to doing one or more of the following:
(a) in the case of goods,
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) in the case of services,
(i) the supply of the services again; or
(ii) the payment of the cost of having the services supplied again.
We cannot limit our liability as set out in this paragraph if you establish that it would not be fair or reasonable for us to do so.
You agree to indemnify us, our employees and officers against all loss, damage, liability and expenses incurred by us or them as a result of or in relation to any claim made or legal proceedings including (without limitation) claims for breach of copyright, breach of confidence, defamation, theft, conversion, and/or obscenity brought against us or them caused by use of the our services by you or any other person you allow to use the our services on your account. You will not have any liability to us for any loss or damage caused by us, including any breach of a guarantee set out in Australian Consumer Law. The terms of this paragraph shall apply even after your agreement comes to an end.
Accounts or services which are inactive for a period of 90 or more days may be disabled or deactivated with or without notice to you.
All support plan terms may change (including eligibility criteria or fees) from time to time. Notice will be given where it affects a customer. Customers who purchase support plans may cancel at any time. All support plans are paid for a period of 30 days, 365 days or part thereof. Any unused time is not refundable. 5c SMS reserves the right to refuse to offer a support plan for any, or no reason.
Where applicable, a support Service Level Agreement means that 5c SMS will respond to a customer's support ticket or phone call within the defined time frame. It does not mean an issue will be resolved within the defined timeframe. Where 5c SMS does not respond within the defined time frame a customer will be eligible for one 'support service credit' (credit) per support ticket, up to a maximum of one credit per month. The credit must be claimed within 30 days of the ticket being opened. Where one credit is the value of one month's support plan fees.
"Business Hours" are defined as 9am to 5pm, Australian Eastern Standard Time, Monday to Friday. Excluding Public Holidays observed in the state of Queensland, Australia.
Your agreement is governed by the law of the State of Queensland. Each of us agrees only to bring legal actions about your agreement in the courts of the State of Queensland.
If you, or we, delay, or do not take action, to enforce our respective rights under our agreement, this does not stop you or us from taking action later.
If any of the terms in your agreement are not valid or legally enforceable, the other terms will not be affected.
We may assign or transfer our rights and obligations under your agreement to a party who agrees to continue complying with our obligations under your agreement. We will give you reasonable notice of any assignment.
Force Majeure Event means: an event or circumstance beyond our reasonable control, including but not limited to, any act of God, civil disorder, war, revolution or any other unlawful act against public order or authority, national or local emergency, fire, flood, earthquake, cyclone, explosion, loss of power, strike, industrial action, or the act or omission of any Government Agency.
We recognise that your privacy is very important and that you have a right to control personal information. We know that providing personal information is an act of trust and we take that seriously. The following sections set out how we handle and protect your personal information and safeguard your privacy.
Whenever you visit the website, our servers automatically record information about your usage of the website, such as the time of the visit, its duration and the pages you visit. This is to help us understand what parts of our website our users make use of. If you have not identified yourself on the website, such as by registering for Membership or logging in as a member, the information we collect about you remains anonymous.
Once you have become a 5centSMS member, we collect personal information about you in order to provide you with the full benefits of Membership. When you first register for Membership, we collect information from you such as your e-mail and phone number, and record details including the times and destinations of any messages you send.
Cookies are pieces of information that a website transfers to your computer's hard disk for record-keeping purposes. This website places a number of cookies on your computer when you login. These cookies are required for the site to operate, so we know who to bill for each message, and to show you your contact list, and contains no personal information. Our advertising sponsors may also place '3rd party cookies' on your machine to track what advertisements you have seen on the website, you are free to block advertisers cookies without adverse effects of your usage of this site.
How we use and disclose your information
We will not disclose any information about you without your consent unless it is:
Required by law;
We believe it necessary in order to provide you with a service which you have requested;
To protect the rights or property of 5centSMS, any 5centSMS user or any member of the public; or
To lessen a serious threat to a person's health or safety.
We will never share your personal information with a third party or allow a third party to promote its products and services directly to you without your explicit consent.
We will take all reasonable steps to keep secure any information we hold about you and to keep this information accurate and up to date. Your information is stored on secure servers that are protected in controlled facilities.
In addition, our employees and the contractors who provide services related to our information systems are obliged to respect the confidentiality of any personal information held by us. However, we will not be held responsible for events arising from unauthorised access to your personal information.
You can also play an important role in keeping your personal information secure by maintaining the confidentiality of any password and accounts used on the 5centSMS website. Please notify us immediately if there is any unauthorised use of your account by any other Internet user or any other breach of security.
If you are a 5centSMS member, you can access, change and update your account profile at any time. If you wish to know what other information we have gathered about you while you have been logged in to the website, you can request this information by contacting us by email. We will endeavour to respond to your request within seven days.