Last updated: 21 February 2023 Archived Versions
These Intelli Messaging Terms and Conditions (Agreement
) apply to your use of the Web Application, Gateway, our website (https://intellisms.com.au/) and Services, including the features provided in connection with our Services.
This Agreement is between FujiFilm Secure Messaging Services Pty Ltd (Intelli Messaging
) and you or the organisation on whose behalf you are accepting or otherwise agreeing to the terms and conditions of this Agreement (you",
, or your
, yours
Customer
).
If you have a separate written agreement with Intelli Messaging for your use of the Services, this Agreement will not apply to you, unless that written agreement does not cover your use of the Web Application, Gateway, our Website and/or a particular Service, in which case, these Intelli Messaging Terms and Conditions of Use apply solely to your use of Web Application, Gateway, our Website and/or that particular Service.
This Agreement is effective as of the date you first click I accept
(or similar button or checkbox) or use or access the Web Application, Gateway or Service, whichever is earlier (the Effective Date
). This Agreement does not have to be signed in order to be legally binding between you and Intelli Messaging. You agree to this Agreement by clicking I accept
(or similar button or checkbox) at the time you register for the Services or create an account.
Please review this Agreement carefully. If you do not agree to be bound by this Agreement, must not accept this Agreement, create an account, or use the Services (as defined in section 1 (Definitions) below).
1. DEFINITIONS
Affiliate
means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified.
Acceptable Use Policy
means the terms relating to the use of the Services as published by Intelli Messaging on Intelli Messaging’s website or as notified to the Customer or otherwise made available to the Customer by Intelli Messaging directly from time to time.
ACL
or Australian Consumer Law
means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.
API
means application programming interface as specified in the Interface Specification.
Business Day
means a day on which banks are open for general banking business in Victoria, Australia, excluding Saturdays, Sundays and public holidays.
Carriage Service
has the same meaning as given to the corresponding term in the Telecommunications Act.
Carrier
has the same meaning as given to the corresponding term in the Telecommunications Act and includes but is not limited to Telstra, Optus and Vodafone but also includes an entity that operates a telecommunications network outside Australia.
Characters
means all letters, numbers, spaces, symbols and punctuation marks.
Customer Account
means a single customer account within the Gateway.
Customer Information
means the information, materials, logos, documents, qualifications and other intellectual property or data provided by the Customer Intelli Messaging in connection with the Services, including Data.
Data
means Personal Information that is supplied by (or on behalf of) the Customer to Intelli Messaging in connection with the Services under this Agreement.
Data Incident
means any actual:
End Customer
means a party using the service that is a customer of the Customer.
Fees
means the fees and charges set out, referred to or otherwise calculated at the time the Customer purchases Transaction Credits.
Gateway
means the Intelli Messaging messaging servers and applications accessed through the defined Interface Specifications and/or Web Application as updated by Intelli Messaging in its sole discretion from to time that provides the Service.
Interface Specifications
means the interface specifications contained in the version of the document(s) provided to or made available to the Customer by Intelli Messaging from time to time.
Message Status Query
means a call to the API, which polls the GSM network for each and every MT Message.
MO Message
means Mobile Originated SMS Message, or a SMS Message sent from a mobile phone via the GSM network and received back to the Customer via the Gateway.
MT Message
means Mobile Terminated SMS Message or the initial SMS Message sent by the Customer and delivered by the Gateway to the GSM network and onto a device capable of receiving SMS Message.
Network Operator
means any entity operating a GSM-based mobile telephony network, offering mobile telephony services to its customer base.
New Materials
means all intellectual property developed, adapted, modified or created by Intelli Messaging in the provision of the Services.
Personal Information
has the meaning given to ‘personal data’, ‘personal information’ or ‘personally identifiable information’ by the Privacy Legislation.
Privacy Legislation
means all applicable state, federal, and foreign privacy, information, security and data protection laws, codes and regulation that are appliable to the provision of the Services and as they apply to the parties in the context of their roles and responsibilities under this Agreement, including but not limited to the Privacy Act 1988 (Cth), Australian Privacy Principles, and California Consumer Privacy Act, in any case as may be amended, superseded or replaced from time to time.
Privacy Policy
means the privacy notice published by Intelli Messaging on its website, the current version of which is available at https://intellisms.com.au/privacy-policy/.
Service
means:
(i)The SMS Messaging Services;
(ii) The SMS Marketing Services; and/or
(iii) any other products and services offered by Intelli Messaging and as agreed between the parties from time to time or used by Customer, whichever is earlier.
SMS Messages
means short text messages sent via the Gateway to a mobile phone on a Network Operator’s GSM networks.
SMS Messaging Services
means the delivery of an SMS Message to the relevant mobile GSM network.
SMS Marketing Services
means the use of SMS Messages in a co-ordinated marketing campaign.
Telecommunications Act
means Telecommunications Act 1997 (Cth).
Transaction Credits
means credits pre-purchased by the Customer via the Web Application in order to use the Services, including sending SMS Messages, and as further contemplated in clause 9.1 of this Agreement.
Web Application
means a self-service web application that Customers can access via Intelli Messaging’s website (https://intellisms.com.au/) to access and use the Services.
This Agreement will start on the Effective Date and will continue unless terminated earlier in accordance with this Agreement.
3.1 In consideration of the Fees, Intelli Messaging will provide the Services to the Customer and the End Customer via the Gateway on the terms and conditions set out in this Agreement.
3.2 After the Effective Date of Agreement, the parties may agree to expand or add additional services to the Agreement (Additional Services). The parties may do this by documenting any such Additional Services in writing.
3.3 Intelli Messaging will provide support services as mutually agreed by the parties in writing. Customer acknowledges and agrees that such support services may be subject to additional fees and charges.
3.4 If Intelli Messaging provides a time within which the Services are to be provided, Intelli Messaging will use reasonable endeavours to provide the Services by such time, but the Customer agrees that:
a) such time is an estimate only, and creates no obligation on Intelli Messaging to provide the Services by that time; and
b) Intelli Messaging’s performance of the Services is subject to the Customer providing Intelli Messaging in a timely manner with any Customer Information that Intelli Messaging requires in order to provide the Services to the Customer.
3.5 The terms set out in this Agreement apply to all Services provided by Intelli Messaging to the Customer by agreement between Intelli Messaging or, failing agreement, under section 479 of the Telecommunications Act.
4.2 Customer is solely responsible for ensuring the confidentiality and security of its Customer Account. Customer must keep its login credentials strictly confidential and must not share its login credentials with any unauthorised person. Customer is responsible for all actions taken using its account or password, whether with or without its authorisation, and Customer agrees to immediately notify Intelli Messaging of any unauthorised access or use of its account which it becomes aware of.
4.3 Customer may provide access and use of the Services to its End Customers, in which case Customer must promptly notify Intelli Messaging in writing and Intelli Messaging will establish an account and issue login credentials or provide instructions for the End Customer to establish an account themselves, to enable such access and use. Customer must ensure that all such access and use by the End Customer is subject to and in compliance with this Agreement and Customer will at all times remain liable for its End Customer’s compliance with this Agreement.
5.1 The Customer may use the Gateway to send SMS Messages to the Customer’s defined message recipient provided the Customer has sufficient Transaction Credits. SMS Messages that contain more than 160 bytes of data as defined by the GSM 03.38 Character set will be sent as multipart SMS Messages where the message from the customer is split into multiple SMS Messages which are recombined by the receiving handset.
5.2 Customer may send up to a maximum of five (5) SMS Messages per second per Customer Account via the Gateway (Maximum Message Rate
). For the purposes of calculating the Message Rate, this number includes all calls to the Gateway to send MT Messages, retrieve MO Messages and query MT Message Status.
5.3 Where the Customer wishes to exceed the Maximum Message Rate per Customer Account, the Customer must get prior approval from Intelli Messaging writing and such variation to the Maximum Message Rate may be subject to additional fees. The Customer acknowledges that its failure to adhere to this requirement could have a material impact on Intelli Messaging and may result in loss by Intelli Messaging and/or other customers of Intelli Messaging.
6.1 Delivery
Subject to clause 9 (Transaction Credits, Fees and Payment) and 18 (Force Majeure), Intelli Messaging will use its reasonable commercial efforts to deliver the SMS Message sent by the Customer or End Customers (as the case maybe) from the Gateway to the mobile GSM network.
6.2 Out of scope
Intelli Messaging is not responsible for delivery of the SMS Message from the mobile GSM network to the nominated mobile phone. This is the responsibility of the relevant mobile GSM network recipient.
7.1 Customer
The Customer shall:
a) use the Services only in accordance with this Agreement, the Acceptable Use Policy and applicable laws;
b) be solely responsible for all use of the Services under any Customer Account;
c) be solely responsible for all acts, omissions, activities and use by End Customers (whether or not authorised by this Agreement);
d) be liable to pay the relevant fees for use of the Service by the End Customer;
e) ensure that the use of the Service by End Customers is in accordance with the terms of this Agreement, the Acceptable Use Policy and applicable laws;
f) manage the Customer Accounts within the Gateway;
g) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and promptly notify Intelli Messaging of any unauthorized access or use; and
h) provide support for the Service to the End Customers.
7.2 Service Suspension
Intelli Messaging may suspend access to the Service for a particular period or may terminate the Agreement immediately upon giving notice the Customer if the Customer or End Customer uses the Service (or Intelli Messaging reasonably believes that the Customer or End Customer has or is using the Service):
a) unlawfully or in a manner that is suspected to be in breach of any applicable law; or
b) in contravention of a relevant industry or government code; or
c) in a manner that contravenes the Spam Act 2003 (Cth), any applicable Privacy Legislation or laws; or
d) in a manner that contravenes the terms and conditions set out in this Agreement and any applicable company policy of Intelli Messaging, including terms relating to the Customer’s use of the Service or any Acceptable Use Policy, as published by Intelli Messaging from time to time; or
e) in a manner where the Service may cause death, personal injury, damage and/or loss to property; or
f) in a manner where there is a threat or risk to the security of the Service or integrity of the network, including problems with the network, or Intelli Messaging needs to suspend the Services to conduct operational and maintenance work on the Network.
Intelli Messaging may also suspend any one Customer Account if the Maximum Messaging Rate for the Customer Account is exceeded or where there is a Force Majeure event.
7.3 Liability for use
The Customer agrees that it is liable for:
a) the destination, content and timing of SMS messages that are sent using the Service by itself and its customers; and
b) any Customer Information that it provides or is provided on its behalf to Intelli Messaging.
7.4 Use of Message Services
The Customer warrants that it and its End Customers will not use the Services or permit the Services to be used to transmit Inappropriate Content. For purposes of this Agreement, Inappropriate Content
means any Customer Information, Data or otherwise content that:
a) is unsolicited, including without limitation, junk mail,
bulk e-mail
, spam or other unsolicited advertising material and/or breaches any applicable Privacy Legislation or laws;
b) causes the introduction of inappropriate applications
, inappropriate URLs
, viruses,
worms,
Trojan horses,
e-mail bombs,
cancelbots
or other similar destructive computer programming routines into the Gateway, GSM network or subscriber’s handsets or device;
c) that violates any law or legal, regulatory, governmental or Network Operator conditions or codes of practice;
d) is illegal, obscene, offensive, pornographic, threatening, defamatory, discriminatory, misleading or inaccurate or is hateful or encourages hatred or violence against individuals or groups;
e) infringes the intellectual property rights (including but not limited to copyright) of any person or entity or otherwise knowingly breaches the rights of any person or entity; or
f) in any way damages or interferes with Intelli Messaging’s services to other customers, our providers or any facilities or exposes Intelli Messaging or its group related entities to liability.
7.5 Customer warranties
The Customer warrants, represents and agrees that:
a) the Customer’s use of the Services shall comply with clause 7.4 (Use of Message Services) of this Agreement and it shall not incorporate or cause the transmission of any Inappropriate Content;
b) it has the legal capacity to enter into this Agreement. If you are entering this Agreement on behalf of your employer or another entity: (i) you have full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent;
c) it has not relied on any representations or warranties made by Intelli Messaging in relation to the Services (including as to whether the Services are or will be fit or suitable for any particular purposes);
d) it will not distribute or sub-licence the Interface Specification to any person other than in accordance with this Agreement;
e) it will not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Interface Specification;
f) if applicable, it holds a valid ABN which has been advised to Intelli Messaging; and
g) if applicable, it is registered for GST purposes.
7.6 Customer obligations – SMS Marketing Services
Without limiting clause 7.5 (Customer Warranties), in relation to SMS Marketing Services provided Intelli Messaging, the Customer also warrants, represents and agrees that:
a) it has the authority to provide all Customer Information that it provides to Intelli Messaging, including all necessary individual consents and that such consents have been collected in accordance Privacy Legislation; and
b) it has not done anything, and will not do anything, that will cause Intelli Messaging or its related bodies corporate or their personnel to contravene the Privacy Act 1988 (Cth), the Do Not Call Register Act 2006 (Cth), the Spam Act 2003 (Cth) or any other requirement under legislation, industry code or government code or other applicable Privacy Legislation or laws.
c) it is solely responsible for all acts or omissions that occur under the Customer Account, and the content of any SMS Messages transmitted through the Service. The Customer acknowledge and agrees that any SMS Messages sent using the Customer’s Account are deemed to have been sent and/or authorised by the Customer.
8.1 In transmitting the Customer’s or End Customers’ SMS Messages from the Gateway to the mobile GSM network, the Customer acknowledges and agrees that Intelli Messaging has no obligation to monitor any SMS Message or the content of any SMS Message. Nonetheless, Intelli Messaging may either review or disclose the content of such SMS Messages transmitted as reasonably necessary to:
a) comply with applicable laws and legal process;
b) enforce the terms and conditions of this Agreement;
c) diagnose or maintain the quality of the Service;
d) respond to claims that the content of the SMS Message violates the rights of third parties; or
e) protect the rights, property or personal safety of Intelli Messaging, its users, or the public.
8.2 Intelli Messaging will use reasonable endeavours to protect the privacy and security of the Service. The Customer acknowledges that the Service is not a secure service and the Customer should not use the Service for transmission of confidential or commercially sensitive information.
8.3 This Agreement supplements and incorporates the Privacy Policy.
8.4 If the Customer is subject to the European Union General Data Protection Regulation (Regulation (EU) 2016/679) (GDPR) and any successor legislation , the Customer can request to enter into a Data Processing Addendum (DPA
) with Intelli Messaging and the DPA must be mutually agreed in writing and signed by the parties.
8.5 This Agreement supplements and incorporates the Privacy Policy and, to the extent the Services are provided in the United States or Canada, the Customer must comply with applicable terms of US and Canadian anti spam laws, including but not limited to the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CAN-SPAM Act) and Canada’s anti spam legislation including Electronic Commerce Protection Regulations SOR/2012-36.
8.6 Data Breach Incidents: To the extent the Notifiable Data Breaches scheme under Part IIIC of the Privacy Act 1988 and/or similar requirements under the relevant Privacy Legislation applies to Intelli Messaging:
a) if Intelli Messaging becomes aware of a Data Incident, Intelli Messaging will:
(I) notify Customer of the Data Incident by telephone and email;
(II) retain system logs and other information that may be relevant to the Data Incident, or to assessing the cause or impact of the Data Incident;
(III) provide all information Intelli Messaging deems relevant to the Data Incident reasonably requested by Customer for the purpose of investigating the Data Incident; and
(IV) immediately take all action reasonably necessary to:
b) If Intelli Messaging suspects that a Data Incident has occurred, it will, immediately notify the customer and then within 30 days, prepare an assessment to determine whether there are reasonable grounds to believe that a Data Incident has occurred.
c) Where Customer suspects that a Data Incident has occurred, Intelli Messaging will, within 30 days of receiving notice from Customer of its suspicion, prepare an assessment to determine whether there are reasonable grounds to believe that a Data Incident has occurred, the costs of such assessment must be paid by Customer if no Data Breach has occurred.
d) If Intelli Messaging believes a Data Incident has occurred it will provide notice to the Customer. The parties will work together to determine if the Data Breach constitutes an Eligible Data Breach.
e) To the extent that any Data Incident notified by the Intelli Messaging to the Customer under this clause 8.6 constitutes an Eligible Data Breach in Intelli Messaging’s opinion, The Customer shall be solely responsible for notifying the affected individuals and the Australian Information Commissioner in accordance with the requirements of the Notifiable Data Breach scheme as set out in the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth). However, this clause and this Agreement does not prevent or restrict Intelli Messaging from taking steps with the intent to comply with any applicable obligations it may have under the relevant law.
f) The Customer is liable for and agrees to indemnify Intelli Messaging for any third party charges or fines directly or indirectly incurred by the Intelli Messaging arising from a failure on the part of the Customer to comply with the requirements of the Notifiable Data Breach scheme.
8.7 This clause 8 is subject to the Privacy Policy and the DPA.
8.8 The Customer agrees that in obtaining the Services it must comply with all applicable policies of Intelli Messaging, including the Acceptable Use Policy, as published on Intelli Messaging’ website or as notified to the Customer or otherwise made available to the Customer by Intelli Messaging directly.
9.1 Transaction Credits
a) Transaction Credits are pre-purchased by the Customer on the Web Application. Transaction Credits are added to the Customer’s Account within one Business Day of payment. The Customer may distribute their credits to their End Customer Accounts via the Web Application.
b) All Transaction Credits are saved in the applicable Customer Account or End Customer Account and automatically debited upon sending SMS Messages.
c) Customer Accounts or End Customer Accounts (as the case maybe) with a Transaction Credit balance of zero or less are blocked from sending SMS messages. The Customer may only distribute Transaction Credits up to the balance of Transaction Credits in their Customer Account. The process of assigning credits from the Customer Account to the End Customer Account reduces the Transaction Credits in the Customer’s Account and adds to the End Customer’s Account Transaction Credit balance.
d) Transaction Credits are not refundable, whether or not used.
9.2 Currency of Fees
All Fees are in currency selected by the Customer as part of your registration for an account and will be presented to you at the time of purchase of Transaction Credits.
9.3 Payment of Fees
By purchasing Transaction Credits on the Web Application, Customer authorises Intelli Messaging to use a third party to process payments and consents to the disclosure of your payment information to such third party for the Fee specified at the time of the purchase. Unless otherwise agreed by Intelli Messaging, all payments due under this Agreement to Intelli Messaging will be made by credit card.
10.1 For the purposes of this clause 10 Information
shall mean technical, financial and commercial information and data relating to a Party’s or its affiliate’s respective businesses, finances, planning, facilities, products, techniques and processes and shall include, but is not limited to, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes, marketing plans, customer names and other technical, financial or commercial information and intellectual properties, whether in tangible or in intangible form.
10.2 Each Party (Receiving Party
) shall not disclose to third parties nor use for any purpose other than for the proper fulfilment of the purpose of this Agreement any Information received from the other Party (Disclosing Party
) in whatever form under or in connection with this Agreement without the prior written permission of the Disclosing Party.
10.3 The above-mentioned limitations shall not apply to Information which:
a) was in the possession of the Receiving Party prior to disclosure hereunder as proven by the written records of the Receiving Party; or
b) was in the public domain at the time of disclosure or later became part of the public domain without breach of the confidentiality obligations herein contained; or
c) was disclosed by a third party without breach of any obligation of confidentiality owed to the Disclosing Party; or
d) was independently developed by personnel of the Receiving Party.
10.4 Each Party shall limit the access to the Information to those of its personnel for whom such access is necessary for the proper performance of this Agreement and obtain written undertakings of confidentiality from them.
10.5 Without prejudice to the generality of the aforesaid, each Party agrees to protect the confidentiality of the Information at least with the same degree of care as it exercises in respect of its own confidential information and business secrets.
10.6 The obligations set forth in this Clause 10 survive termination of this Agreement.
10.7 This clause 10 does not prevent:
a) the Receiving Party from disclosing Information of the Disclosing Party if required pursuant to applicable law, regulation, subpoena or court order, provided the Receiving Party, to the extent permitted by law, gives prompt notice to the Disclosing party of such disclosure request and use reasonable efforts to minimise such disclosure; or
b) Intelli Messaging from disclosing the existence of this Agreement to third parties for the purposes of marketing to customers and potential customers.
Consumer Law Rights).
18.1 Except in relation to the Customer’s obligation to pay the Fees, neither party shall be in default by reason of any failure in performance of this Agreement in accordance with its terms, if such failure arises out of causes beyond the control and without the fault or negligence of such party.
18.2 Such causes may include, but are not restricted to, acts of God or of a public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, power or telecommunications failures and freight embargoes but in every case the failure to perform must be beyond the control and without fault or negligence by the party failing to perform.
18.3 The party seeking to rely on this clause 18, must promptly notify the other party upon becoming aware of such an event and must take all reasonable steps to minimise the adverse effects of the force majeure event by which it is affected and which is the subject of a notification under this clause 18.3.
Carrieror a
Carriage Service Provider.
21.1 The parties are independent contractors. This Agreement does not constitute any party the agent of another or imply that the parties intend constituting a partnership joint venture or other form of association in which any party may be liable for the acts or omissions of another. No party has authority to pledge the credit of another.
21.2 The parties acknowledge and agree that, unless any of their personnel are expressly authorised in writing by the other party, the other party’s personnel do not have any authority to enter into or make any binding contract, arrangement or understanding between them or any other person whether in relation to the supply or sale of, nature, function, performance or availability of Services or any other matter whatsoever.
28.2 In this Agreement, unless the context otherwise requires:
a) words like including and for example are not words of limitation;
b) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
c) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
d) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
e) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
f) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
g) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally; and
h) a reference to $ or dollars refers to the currency of Australia from time to time.
28.3 In the event of any conflict or inconsistency among the following document, the order of precedence will be:
a) DPA;
b) the terms set forth in the body of this Agreement;
c) Acceptable Use Policy; and
d) any other terms incorporated by reference herein or any other schedule, exhibits or documents attached or referred to in this Agreement.