1. Defined terms & interpretation
1.1. Defined terms
In this agreement:
Acceptable Currency means a currency that Messagex has accepted as consideration for the purchase of Messagex Credit.
Acceptable Use Policy means Messagex’s acceptable use policy as published on the Website from time to time.
Account means an online account used to access the Services.
Account Balance means, for a given Account, the balance of Messagex Credit for that Account.
Additional Services means all Services other than Messaging Services provided by Messagex to the Customer under this agreement.
Business Day means a day in the State of Victoria, Australia that is not a Saturday, a Sunday or a gazetted public holiday in that State.
Business Hours means the period between 9.00am and 5.00pm on a Business Day.
Sub Account has the meaning given to that term in clause 5.1.
Sub Account Nominee means, in relation to a Sub Account, the person nominated by the relevant Customer to be the principal point of contact on the Sub Account.
Claim means a claim, demand or proceeding arising out of a cause of action, including breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action.
Commencement Date means the date that Messagex notifies the Customer of Messagex’s acceptance of the Customer Request submitted by the Customer through the Website (whether such notification is by email, by onscreen confirmation of acceptance or otherwise).
Complaints Handling Policy means Messagex’s dispute resolution and complaints handling policy as published on the Website from time to time.
Confidential Information of a Disclosing Party means:
the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of this agreement;
information that is by its nature confidential;
information that is designated by the Disclosing Party as confidential; and
information the Receiving Party knows, or ought to know, is confidential;
all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (a); and
all copies of the information, notes and other records referred to in paragraphs (a) and (b), but excludes information that:
the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or
is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted disclosees).
Customer Data means data and information relating to the Customer and its operations, facilities, personnel, assets, products, sales and transactions (including information relating to the Customer’s Message Recipients).
Customer Request means the online application form completed by the Customer on the Website and submitted to Messagex when establishing an Account.
Customer’s Primary Account means the Account established under this agreement which is determined by Messagex from time to time to be the Customer’s primary account.
Damages means all liabilities, losses, damages, costs and expenses (including all legal costs determined on a solicitor and own client basis) whether incurred or awarded against a party, disbursements, costs of investigation, litigation, settlement and judgment, and interest, fines and penalties, regardless of the Claim under which they arise.
Direct Debit Request Form means the direct debit request form available on the Website from time to time.
Direct Debit Transaction has the meaning given to that term in clause 8.1.
Disclosing Party means a party who discloses or makes available Confidential Information to a Receiving Party.
Estimator Tool means the functionality provided on the Website where a Customer may estimate the anticipated Fee for particular Services.
External Factors has the meaning given in clause 2.4(b).
Fee means all fee, charge and other amount payable by the Customer to Messagex under this agreement.
Force Majeure means:
act of God, lightning, storm, flood, fire, earthquake, explosion cyclone, tidal wave, landslide or adverse weather conditions;
act of public enemy, war (declared or undeclared), act of terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion or epidemic;
the effect of any applicable laws, orders, rules or regulations of any government or other competent authority;
embargo, power or water shortage or lack of transportation;
any External Factors; or
any other event beyond the reasonable control of a party.
Governmental Agency means any governmental, semi-governmental or judicial entity or authority.
Harmful Code means any virus, worm, trojan horse, trapdoor, software switch, time bomb, slicing routine, corruptive code, logic bomb, disabling code, disabling routine or expiration dates as these words are generally understood within the technology industry and any equivalent or similar corruptive mechanism.
Intellectual Property Rights means all intellectual property rights, including:
patents, copyright, rights in circuit layouts, designs, registered designs, trade and service marks, trade names and any right to have confidential information kept confidential;
any application or right to apply for registration of any of the rights referred to in paragraph (a); and
all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist anywhere in the world (including Australia).
the common law and equity;
any statute, regulation, by-law, ordinance or subordinate legislation (including the Privacy Laws); or
any licence, permit, authorisation, accreditation, code of practice, code of conduct, order, direction or other requirement which is enforceable against the Customer or Messagex (as the case may be) or which is issued under an instrument referred to in paragraph (b),
and includes any amendment, change, update or replacement to any of them that may be implemented or take effect during the term of this agreement.
Message means any electronic message (including, SMS and MMS messages), (including the data, information, text, media, images, features, advertisements, promotions, links, pointers and other content comprised in those messages) transmitted or received (via the Customer’s Primary Account or a related Sub Account) through the Messagex Systems.
Message Cost means the cost to the Customer of submitting a Message for sending to the Messagex Systems, as determined from time to time in accordance with clause 6.1.
Messaging Services means the messaging and related services provided to the Customer by Messagex via the Website and the provision to the Customer of access to the Web Tools (including the facility for the Customer to submit Messages for sending through the Messagex Systems).
Message Recipient means, in relation to a Message, the Customer’s intended recipient of that Message.
Personal Information means any information or opinion about a natural person (whether true or not), including ‘personal information’ as that term is defined in the Privacy Act, which either party collects or has access to, stores or discloses, or otherwise handles, in the course of performing, or receiving the benefit of, the Services.
Personnel means, in relation to a party, officers, employees, agents and contractors, including representatives of that party and its Related Corporations.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws means:
the Privacy Act, the Health Records Act 2001 (Vic), the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth);
all codes, guidelines, service standards and procedures issued by a Governmental Agency; and
all other laws, rules and regulation in any relevant jurisdiction (including Australia),
to the extent they relate to the privacy, protection, use or disclosure of Personal Information or data.
Receiving Party means a party to this agreement who obtains Confidential Information of the other party to this agreement.
Related Corporation has the same meaning as “related body corporate” in the Corporations Act 2001 (Cth).
Services has the meaning given to that term in clause 2.2.
Messagex Credit means an amount, represented in units of an Acceptable Currency, that may be used as consideration for Services provided in the future.
Messagex Pre-Existing IPR means any Intellectual Property Rights owned and created by Messagex prior to the Commencement Date (together with any improvements, modifications and enhancements made to those rights during the term of this agreement).
Messagex Systems means all hardware, software, materials and resources used by (or on behalf of) Messagex to provide the Services (and includes the Web Tools).
Supplier means a mobile network operator or an aggregator whose services or infrastructure directly or indirectly receive a Message submitted by the Customer via the Messagex Systems for sending to the relevant Message Recipient.
Website means the Messagex website located at www.Messagex.com (or any successor website as notified to the Customer from time to time).
Web Tools means:
the messagex portal (or any related platform);
Messagex’s application programming interfaces; and
any other tools specifically made available to the Customer by Messagex to enable the Customer to receive the benefit of the Services.
In this agreement, unless the contrary intention appears:
headings are for ease of reference only and do not affect the meaning of this agreement;
the singular includes the plural and vice versa and words importing a gender include other genders;
other grammatical forms of defined words or expressions have corresponding meanings;
a reference to a clause, paragraph, schedule or attachment is a reference to a clause or paragraph of or schedule or attachment to this agreement and a reference to this agreement includes any schedules and attachments;
a reference to a document or agreement, including this agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;
a reference to a party includes its executors, administrators, successors and permitted assigns;
the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
words and expressions importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies; and
k. a reference to any statute or other legislation is to a statute or other legislation as amended or replaced from time to time.
2.1. Performance of the Services
provide the Services to the Customer in accordance with this agreement; and
permit the Customer to access and use the Web Tools for the purposes of receiving the benefit of the Services,
on and from the Commencement Date until such time as the agreement is terminated in accordance with its terms.
Services means initially, the Messaging Services and any such other Additional Services as agreed between Messagex and the Customer (where such agreement shall be evidenced by the Customer purchasing such Services using the Web Tools) from time to time.
For the avoidance of doubt:
When you use the Messagex Systems to transmit a Message, the Message may flow through the systems of several Suppliers (together, the Supplier Chain) before actually being delivered to the Message Recipient’s handset or otherwise.
If the Supplier Chain includes one or more Suppliers, your Message is considered to be delivered by Messagex once it has been transmitted from the Messagex Systems to the first Supplier in the Supplier Chain in a form and a manner that allows that Supplier to deliver the Message to the next Supplier in the Supplier Chain or to the Message Recipient (as the case may be).
Actual delivery of a Message to the Message Recipient is dependent on the effective functioning of the Suppliers’ infrastructure, network coverage and the Message Recipient’s mobile handset.
Having regard to clause (i), (ii) and (iii), if the Supplier Chain includes one or more Suppliers, the Services do not include the actual delivery of a Message to the intended Message Recipient and Messagex does not accept responsibility for any failure of, or delay in, the delivery of a Message to a Message Recipient provided that Messagex has delivered the relevant Message to the first Supplier in the Supplier Chain in a form and a manner that allows that Supplier to deliver the Message to the next Supplier in the Supplier Chain or to the Message Recipient (as the case may be).
If the Supplier Chain does not include any Suppliers, Messagex’s responsibility for any failure of, or delay in, the delivery of a Message to a Message Recipient is limited in accordance with this agreement.
2.3. Access to the Web Tools
The Customer must:
at the Customer’s cost, provide appropriate access devices, software, operating conditions, cabling, telephone lines, modems and internet connections required for it to access the Web Tools and otherwise receive the benefit of the Services;
ensure that no unauthorised use is made of the Web Tools, whether through the Customer’s Primary Account or any Sub Account;
comply with all of Messagex’s operating and security requirements and procedures relating to:
access to the Web Tools; and
the use of the Services,
(including in respect of passwords and other security information) as displayed on the Website or otherwise notified to the Customer from time to time;
other than as expressly permitted under this agreement, not obtain (nor attempt to obtain) any access to, or interfere with:
any programs or data of Messagexl, a Supplier or any other client of Messagex; or
any part of the Messagex Systems or any Supplier’s systems, hardware, software or networks of a Supplier; and
not introduce any Harmful Code into the Messagex Systems or the systems, hardware, software or networks of any Supplier.
If the Customer becomes aware of or suspects that a breach of any of the obligations set out in paragraph (a) has occurred, the Customer must promptly notify Messagex, in which case Messagex may take such action as it considers appropriate (which may included changing the Customer’s passwords and other security information).
2.4. Continuity of Services & Suspension
Notwithstanding anything else in this agreement, Messagex does not undertake, warrant or guarantee that the Services (including access to the Web Tools or other Messagex Systems) will be uninterrupted, continuous or error free.
The Customer acknowledges and agrees that the Customer’s use of the Services is dependent on, and affected by, a number of environmental and other factors outside of the reasonable control of Messagex, including the systems hardware and software of any services provided by Suppliers (External Factors). Subject only to clause 17.4, Messagex will have no liability whatsoever relating to any failure of, or interruption in the performance of, the Services resulting from any External Factors. In the event of failure of the Services, Messagex will use reasonable commercial endeavours to restore the Services to an operational state with the minimum practicable delay.
The Customer acknowledges that, from time to time:
Messagex will conduct routine and other maintenance on the Website and the Messagex Systems; and
the Suppliers will conduct routine and other maintenance on their respective systems, hardware, software and networks,
and the Customer agrees that, during the conduct of such maintenance, the Customer may not be able to access or use the Services.
The Customer acknowledges and agrees that Messagex may, in its sole discretion and to the maximum extent allowed by Law, suspend the Services (including the Customer’s access to the Web Tools) in any of the following circumstances:
Messagex wishes to repair, improve, and/or upgrade the underlying technology of the Messagex Systems;
Messagex’s access to any system, software, hardware or network of any Supplier is suspended for any reason;
Messagex is required to do so by any Governmental Agency or Supplier; or
for any other justifiable reason, including but not limited to, circumstances where the Customer (or the Customer’s Sub Account Nominees) in Messagex’s opinion are in breach of this agreement, creating problems, possible legal liabilities, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons.
3. Customer’s obligations
3.1. Customer’s Primary Account
warrants that all information provided in the Customer Request and any other information provided to Messagex in the course of using the Messagex Systems is complete and accurate;
must keep the Customer’s Primary Account information current and accurate; and
must keep all of the Customer’s Primary Account information (including the Customer’s password and account name) confidential and secure.
3.2. Licences and compliance
The Customer must:
obtain and maintain throughout the term of this agreement all relevant licences, approvals, permits and certificates:
required in respect of delivery of the Messages; and
otherwise required in order to receive the benefit of the Services;
comply with all applicable Laws and industry codes and practices; and
comply with Messagex’s directions, policies and procedures relating to the use of the Messagex Systems and the delivery of the Services.
3.3. Use of Services
The Customer must not use the Services, nor permit the Services to be used:
for sending any communication or Message which:
is defamatory, abusive or of a vulgar, obscene or menacing nature;
is false, inaccurate, misleading or unlawful;
is invasive of a person’s privacy;
is hateful or racially, ethnically, or otherwise objectionable; or
Messagex determines to be otherwise offensive or inappropriate;
for the persistent sending of Messages without a reasonable cause or for the purpose of causing annoyance, inconvenience or distress to any person;
in a way that contravenes:
any applicable Law (including the Privacy Laws) or industry code or practice; or
any other rules or guidelines posted on the Website or otherwise notified to the Customer by Messagex from time to time;
in any way that may have a detrimental effect on the goodwill or good standing of Messagex or any Supplier;
in a way that may expose Messagex or any Supplier to the risk of any legal or administrative action including prosecution under any Laws;
to transmit any communication or Messages that may harm a minor in any way;
to send unsolicited electronic commercial messages where the recipient has not consented to receive such messages;
to interfere with or disrupt Messagex’s business, or the services, hardware, software or networks of any Supplier;
in a way that would infringe any person’s Intellectual Property Rights or other rights; or
in any other way that contravenes the requirements of any Supplier as notified to the Customer from time to time (which notification may be given in accordance with clause 21 or by posting a notice on the Website to that effect).
3.4. Acceptable Use Policy
Without limiting clause 3.3, the Customer shall comply at all time with Messagex’s Acceptable Use Policy.
Where Messagex makes an amendment to the Acceptable Use Policy, it shall have immediate effect following the amendment first being published on the Website.
3.5. Responsibility for Messages
is solely responsible for all Messages (whether submitted or submitted on the Customer’s own behalf or on behalf of a third party);
must inform Messagex as soon as possible if the Customer suspects or becomes aware of any unauthorised use of the Customer’s Primary Account or any related Sub Account; and
acknowledges and agrees that Messagex has no editorial control over the Messages and is under no obligation to review, moderate, amend or modify the Messages as part of the Services.
The Customer acknowledges and agrees that, notwithstanding paragraph (a)(iii), Messagex and the Suppliers may, in their absolute discretion, monitor the Messages transmitted using the Messagex Systems.
The Customer must bear all costs arising out of any complaints made in connection with the Messages (including complaints made by any Governmental Agency).
3.6. Volumes and forecasting
The Customer must:
on request by Messagex from time to time, provide Messagex with volume forecasts for the use of the Services and such other information that Messagex may reasonably request concerning the Customer’s use of the Services; and
provide Messagex with revised volume forecasts for its use of the Services if the Customer anticipates, from time to time, that there is likely to be a significant increase or decrease in its use of the Services.
4.Variation to this agreement
Messagex reserves the right to modify this agreement at any time.
By using the Services, the Customer agrees that Messagex may provide it with notice of a change to this agreement by publishing the amended agreement on the Website. Such notice will be effective and binding on the Customer from the date that the amended agreement is first published on the Website.
The Customer must regularly check the Website to ensure that it is complying with the most current version of this agreement.
Messagex will use its best endeavours to update the version reference at the head of this agreement following any amendments to its terms in accordance with this clause 4.
5. Sub Accounts
5.1. Sub Accounts
Upon being requested to do so by the Customer in the manner designated by the Messagex Systems, Messagex may, in its absolute discretion, create one or more Accounts (each a Sub Account) that are linked to the Customer’s Primary Account.
The existence of a Sub Account does not of itself create a separate agreement for Services between Messagex and the Sub Account Nominee and this agreement shall apply to all Services provided in respect of the Customer’s Primary Account and any related Sub Account.
5.2.Responsibility for Sub Accounts
Unless Messagex expressly agrees in writing otherwise, the Customer is responsible in all respects for a Sub Account (including the indemnity in favour of Messagex in clause 18 in respect of all Fees and other costs and expenses attributable to that Sub Account) as if it were the Customer’s Primary Account under this agreement.
5.3. Suspending Sub Accounts
Messagex may, in its absolute discretion, suspend any Sub Account created by the Customer without notice.
5.4. Stand Alone Sub Accounts
Messagex reserves the right to require that a Sub Account Nominee enter into a separate agreement for Services. In such case, a separate online Customer Request must be submitted by the Sub Account Nominee with Messagex. Any Account resulting from the separate online Customer Request (a Stand Alone Sub Account) will not be regarded as a Sub Account of the Customer for the purpose of this agreement.
5.5. Customer’s guarantee & indemnity in respect of each Stand Alone Sub Account
Unless Messagex expressly agrees in writing that this clause 5.5 does not apply, the Customer:
unconditionally guarantees to Messagex the punctual observance and performance by each of its Stand Alone Sub Account holders of their respective obligations to Messagex arising under their respective agreement in relation to the Services; and
indemnifies Messagex and its Personnel (those indemnified), and will hold those indemnified harmless, against all Damages suffered or incurred by any or all of those indemnified arising, directly or indirectly, out of or in connection with:
a breach by a Stand Alone Sub Account holder of its agreement with Messagex for the Services;
any negligent or fraudulent act, error or omission by a Stand Alone Sub Account holders, its personnel, agents or Message Recipients;
loss of or damage to any property or injury to or death of any person caused by any act or omission by a Stand Alone Sub Account holder, a Stand Alone Sub Account holder’s personnel, agents, or Message Recipients; or
any Claim by a third party (including any Supplier or Message Recipient) against Messagex relating to the Services or the subject matter of the Messagex’s agreement with a Stand Alone Sub Account holder.
6. Message Costs and Message Costs Estimator
6.1. Applicable Message Costs
The Message Costs charged by Messagex to the Customer will be those prices indicated to the Customer at the time of making the relevant purchase of Messaging Services using the Messagex Systems.
The Customer acknowledges that Messagex may offer different pricing for Messages Services to different Customers based on membership or other categories from time to time.
6.2. Additional Services
Any Additional Services purchased by the Customer will be charged at the price shown to the Customer at the time of making the purchase using the Messagex Systems.
6.3. Use of the Estimator Tool
The Customer acknowledges and agrees that:
the Estimator Tool is provided for illustrative purposes only;
an amount calculated from time to time using the Estimator Tool does not constitute a quote or an offer capable of acceptance by the Customer; and
the pricing of Messages will ultimately be determined in the manner set out in clauses 6.1 and 6.2.
7. Pre-payment and charging
7.1. Basis for charging
The Customer agrees that:
amounts paid by a Customer to Messagex constitutes a purchase by the Customer of Messagex Credit. The Messagex Credit that is purchased will be credited to the Customer’s Primary Account (or, at the direction of the Customer, a related Sub Account) at the time of purchase;
each time the Customer purchases Messaging Services, the Customer’s Account Balance will be debited by an amount equal to the Fee attributable to those Services (determined in accordance with clause 6.1);
each time the Customer purchases any Additional Services (other than the Messaging Services) the Customer’s Account Balance will be debited by an amount equal to the Fee attributable to those Services (determined in accordance with clause 6.2); and
such amounts will be debited from the Customer’s Account Balance as soon as practicably possible following the purchase through the Messagex Systems.
7.2. Account Balance must be in credit
At the time of purchasing Services using the Messagex Systems, the Customer’s Account Balance must contain sufficient Messagex Credit to cover the entire cost of that transaction. Messagex will not allow a Customer’s Account Balance to go into debit.
7.3. Nature of the Messagex Credit
The Customer acknowledges and agrees that:
notwithstanding that the Customer’s Messagex Credit is represented in the Messagex Systems as an amount of an Acceptable Currency, the Customer may only use such balance as consideration for Services purchased and has no legal or equitable right to recover (whether by way of refund or otherwise) such sum from Messagex except as is prescribed by Law or expressly prescribed by this agreement;
no trust or other fiduciary relationship exists between Messagex and the Customer or any Sub Account Nominee;
Messagex Credits are:
not transferable from Customer to another Customer; and
ii. are transferable between a Customer and its Sub Account Nominee with the express consent of Messagex.
7.4. Expiry of Messagex Credit
Messagex reserves the right to cancel Messagex Credit which have not been used within two years of being purchased by the Customer in accordance with clause 7.1(a).
8. Direct Debit Request Service Agreement
8.1. Authorisation to direct debit
The Customer may authorise Messagex to arrange for funds to be debited from a nominated account with a financial institution (Direct Debit Transaction) by submitting a completed Direct Debit Request Form to Messagex.
8.2. Confirmation of Direct Debit Request Form details prior to initial drawing
Messagex must confirm the details on the Customer’s completed Direct Debit Request Form by notice written notice to the Customer prior to the Customer’s first Direct Debit Transaction.
8.3. Changes to direct debit authorisation
(a) The Customer may vary its authorisation to Messagex to perform Direct Debit Transactions under clause 8.1 by submitting a new, completed Direct Debit Request Form to Messagex.
(b) When the Customer submits a Direct Debit Request Form to Messagex, all previous Direct Debit Request Forms cease to have any effect.
8.4. Cancelling a direct debit authorisation
(a) The Customer may cancel its authorisation to Messagex to perform Direct Debit Transactions under clause 8.1 by providing Messagex written notice.
(b) A notice under paragraph (a) will not remove Messagex’s authority to perform a Direct Debit Transaction in respect of a particular (upcoming) payment unless the notice is received at least 5 Business Days before that payment is due to be drawn in accordance with clause 8.1.
(c) The Customer may at any time contact the financial institution at which its nominated account is held to stop or cancel its direct debit authorisation under clause 8.1.
8.5. Customer obligations
The Customer must:
(a) ensure that the account nominated by it in any Direct Debit Request Form is able to accept Direct Debit Transactions by checking its most recent statement or contacting its financial institution as not all accounts provide this facility;
(b) ensure that signatory on any completed Direct Debit Request Form is identical to the account signing instruction held by the financial institution with which the nominated account is held;
(c) ensure that sufficient cleared funds are available for Direct Debit Transactions;
(d) ensure it is aware of any fees chargeable by its financial institution for failed Direct Debit Transactions as it is responsible for these fees;
(e) reimburse any fees incurred by Messagex for failed Direct Debit Transactions due to insufficient clear funds being available in the nominated account;
(f) arrange payment by another means of any outstanding amounts owed to Messagex where a Direct Debit Transaction fails; and
(g) inform Messagex if the nominated account on the Customer’s Direct Debit Request Form is transferred or closed at least 5 Business Days before the next Direct Debit Event is triggered.
Messagex must ensure all information provided to it by the Customer in a Direct Debit Request Form or otherwise under this clause 8 is kept confidential, except where disclosure is required to facilitate Direct Debit Transactions or to investigate incorrect payments.
The Customer may raise issues arising under this clause 8 by providing Messagex notice of its Complaint in accordance with the Complaints Handling Policy.
9.1. Defined terms
In this clause 9, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.
9.2. GST inclusive amounts
For the purposes of this agreement, where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under this agreement, the amount or consideration will not be increased on account of any GST payable on that supply.
9.3. Consideration GST exclusive
Any consideration to be paid or provided for a supply made under or in connection with this agreement, unless specifically described in this agreement as GST inclusive, does not include an amount on account of GST.
9.4. Gross up of consideration
Despite any other provision in this agreement, if a party (Supplier) makes a supply under or in connection with this agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this agreement as GST inclusive):
the consideration payable or to be provided for that supply under this agreement but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and
the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
9.5. Reimbursement (net down)
If a payment to a party under this agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.
10. Fees exclusive of Taxes
Except as otherwise specified in this agreement and subject to paragraph (b), the Fees and any other fees and charges payable by the Customer under this agreement are exclusive of all taxes, duties and charges imposed or levied in Australia or overseas in connection with this agreement or the Services.
Messagex is solely liable for all taxes on income and revenue, and any capital gains accrued or paid, in respect of the Services.
11. Stamp duty and other Taxes
11.1. Stamp duty
Any stamp duty, duties or other taxes of a similar nature (including fines, penalties and interest) in connection with this agreement or any transaction contemplated by this agreement must be paid by the Customer.
11.2. Withholding tax
If a Law, or regulation pursuant to a Law, requires the Customer to deduct or withhold an amount on account of any tax from any payment to Messagex under or in connection with this agreement:
the Customer must make the withholding or deduction; and
the amount of the payment to Messagex must be increased by such additional amount as is necessary to ensure that the amount received and retained by Messagex (after taking into account all deductions and withholdings on account of tax) is equal to the amount that Messagex would have received had the payment in question not been subject to any deductions or withholdings.
12. Intellectual Property Rights
12.1. Messagex Intellectual Property Rights
Messagex owns (or is the licensee of) all Intellectual Property Rights in:
the Web Tools and the Messagex Systems;
all Messagex Pre-Existing IPR; and
all documentation, know-how, methodologies, equipment and other materials supplied or made available to the Customer under or in connection with this agreement,
and nothing in this agreement transfers or assigns to the Customer any of those rights.
12.2. Customer Intellectual Property Rights
Messagex acknowledges and agrees that, as between the parties, the Customer retains all Intellectual Property Rights in the Customer Data.
The Customer grants to Messagex a non-exclusive, non-transferable, royalty-free licence to use and reproduce the Customer Data solely for the purpose of enabling Messagex to discharge its obligations under this agreement.
13. Confidential information
13.1. Use and disclosure
A Receiving Party:
may use Confidential Information of the Disclosing Party only for the purposes of this agreement; and
must keep confidential all Confidential Information of the Disclosing Party except:
for disclosures permitted under this clause 13; and
to the extent (if any) the Receiving Party is required to disclose any Confidential Information by Law or in accordance with the rules of an applicable stock exchange.
13.2. Use and disclosure of Confidential Information
A Receiving Party may disclose Confidential Information of the Disclosing Party:
in the case of Messagex, to Suppliers as required by the terms of any agreements between Messagex and those Suppliers; and
have a need to know for the purposes of this agreement (and only to the extent that each has a need to know); and
in the case of the Personnel of the Receiving Party, have been directed by the Receiving Party to keep confidential all Confidential Information of the Disclosing Party; and
in the case of other persons, have agreed in writing with the Receiving Party to comply with substantially the same obligations in respect of Confidential Information of the Disclosing Party as those imposed on the Receiving Party under this agreement,
(each a Direction).
13.3. Receiving Party’s obligations
A Receiving Party must:
ensure that each person to whom it discloses Confidential Information of the Disclosing Party under clause 13.2(b)(ii) complies with its Direction; and
notify the Disclosing Party of, and take all reasonable steps to prevent or stop, any suspected or actual breach of a Direction.
13.4. Disclosure required by Law
If a Receiving Party is required by Law or the rules of an applicable stock exchange to disclose any Confidential Information of a Disclosing Party to a third person (including government) the Receiving Party must:
before doing so:
notify the Disclosing Party; and
give the Disclosing Party a reasonable opportunity to take any steps that the Disclosing Party considers necessary to protect the confidentiality of that information; and
notify the third person that the information is confidential to the Disclosing Party.
agrees to be bound by the Privacy Laws applicable to it with respect to any act done or practice engaged in by the party for the purposes of this agreement (including, in relation to the Customer, in respect of the collection, use, disclosure and storage of the Personal Information of Message Recipients);
must (and must ensure that its Personnel) comply with:
the Privacy Laws and all guidelines issued by applicable privacy offices (and any similar regulatory bodies); and
must notify the other party immediately:
of any complaint from any person alleging a breach of the Privacy Laws;
if it becomes aware of a breach, or a suspected or possible breach, by it of any of its obligations under this clause 14; or
if it becomes aware that any disclosure of Personal Information may be required by Law;
cooperate with the other party in:
resolving any complaint alleging a breach of the Privacy Laws or any privacy statement regarding any Personal Information; and
providing access to any record of Personal Information following a request from an individual; and
take appropriate technical and organisational measures to prevent (to the extent reasonably practicable):
unauthorised or unlawful use or disclosure of; and
accidental loss or destruction of, or damage to,
15.1. Use of Customer Data
Messagex must not (and must ensure that its Personnel do not):
use Customer Data held by Messagex, or to which Messagex has access, other than for the purposes of fulfilling its obligations under this agreement; or
purport to sell, let for hire, assign rights in or otherwise dispose of any Customer Data, other than as required to enable Messagex to:
disclose Customer Data to Suppliers in accordance with the terms of Messagex’s agreements with such Suppliers; and
comply with applicable Laws or the rules of any applicable stock exchange.
15.2. Safeguarding Customer Data
establish and maintain reasonable safeguards against the destruction, loss or alteration of Customer Data in the possession, custody or control of Messagex; and
use its reasonable endeavours to protect the Customer Data from destruction, loss, alteration or security breaches while the Customer Data is stored in the Messagex Systems.
The Customer warrants to Messagex that:
the Customer has the requisite power and authority to enter into this agreement and to carry out the obligations contemplated by this agreement;
the transmission of the Messages (or any of them) will not infringe the Intellectual Property Rights or other rights of any person;
the Customer holds (and will at all times continue to hold) all rights permits, licences, authorisations and accreditations required for it to perform its obligations under this agreement; and
the performance of its obligations under this agreement will:
comply with all such rights, permits, licences, authorisations and accreditations; and
not contravene any applicable Laws.
17. Exclusion of warranties and limited liability
17.1. Exclusion of warranties
Messagex excludes all express and (to the maximum extent permitted by Law) implied conditions, warranties and liabilities, except for any liability or implied condition or warranty the exclusion or limitation of which would contravene any applicable statute or cause any part of this clause to be void (Non-excludable Condition).
To the maximum extent permitted by law, Messagex’s liability to the Customer for breach of any Non-excludable Condition is limited, at Messagex’s option, to:
in the case of goods, repair or replacement of the goods or payment of the cost of the repair or replacement; and
in the case of services, resupply of the services or payment of the cost of the resupply.
17.2. Exclusion of liability
Subject to clause 17.4(b), but despite any other provision of this agreement, Messagex excludes all liability:
in relation to Messages transmitted by the Customer using the Services (including any liability to third parties arising as a result of the transmission of any Messages); and
for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, the cost of procuring any substitute services, or any indirect, consequential or special loss, damage, cost or expense or other Claims for consequential compensation, incurred by or awarded against the Customer under or in any way connected with this agreement or the provision of the Services.
17.3. Liability cap
Subject to clauses 17.2 and 17.4(b), but despite any other provision of this agreement, Messagex’s total aggregate total liability to a Customer under or in connection with this agreement (whether in contract, tort (including negligence) or any other theory of liability)) shall not exceed in aggregate the amount of Messagex Credit purchased by the Customer in the 12 month period immediately prior to the date of the event giving rise to the relevant claim, subject to a maximum of [$5,000] in all cases.
17.4. Application of exclusions and limitations
The exclusions and limitations of liability in clauses 17.2 and 17.3:
apply whether the relevant Claim is made under statute, in tort (for negligence or otherwise), under an indemnity, in equity or otherwise; and
do not exclude or limit the application of any provision of any statute (including the Competition and Consumer Act 2010 (Cth)) where to do so would:
contravene that statute; or
cause any part of this clause to be void.
The Customer indemnifies Messagex and its Personnel (those indemnified), and will hold those indemnified harmless, against all Damages suffered or incurred by any or all of those indemnified arising, directly or indirectly, out of or in connection with:
a breach of this agreement by the Customer;
the use of the Customer’s Primary Account by the Customer or any third party;
the transmission of any Messages (including any Damages sustained or incurred by those indemnified in connection with complaints or Claims relating to any Messages);
any negligent or fraudulent act, error or omission on the part of the Customer, its Personnel or Message Recipients;
loss of or damage to any property or injury to or death of any person caused by any act or omission of the Customer, its Personnel or Message Recipients; or
any Claim by a third party (including any Supplier or Message Recipient) against Messagex relating to the Services or the subject matter of this agreement.
19.1. Termination by the Customer for convenience
The Customer may terminate this agreement at any time for convenience by giving Messagex notice in writing to that express effect.
19.2. Termination by Messagex for convenience
Messagex may terminate this agreement at any time for convenience by giving the Customer notice in writing to that express effect.
19.3. Termination by Messagex for cause
Messagex may terminate this agreement immediately by notice to the Customer if:
the Customer commits any breach of this agreement that is:
capable of remedy and the Customer fails to remedy the breach within 30 days after receiving written notice requiring it to do so; or
incapable of remedy;
the Customer ceases to be able to pay its debts as they become due;
any step is taken by a mortgagee to take possession or dispose of the whole or part of the Customer’s assets, operations or business;
any step is taken to enter into any arrangement between the Customer and its creditors;
any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person of the whole or part of the Customer’s assets, operations or business;
the Customer disposes of the whole or part of its assets, operations or business other than in the ordinary course of business;
the Customer ceases to carry on business;
the Customer is a partnership, any step is taken to dissolve that partnership; or
the Customer has not accessed its Account (including any Sub Account) for a continuous period of 2 years or more.
19.4. Consequences of termination
On termination of this agreement for any reason:
the Customer must:
promptly return all materials, information and documentation provided to the Customer or the Sub Account Holders by Messagex in connection with the Agreement;
refrain from accessing or using any Messagex Systems (including the Web Tools), and ensure that none of the Customer’s Personnel, the Sub Account Holders or the Sub Account Holders’ Personnel access or use any of the Messagex Systems; and
cancel the Customer’s Primary Account and all its Sub Accounts;
terminate all means or modes of access and use of the Messagex Systems by the Customer and its Personnel; and
be regarded as discharged from any further obligations under this agreement.
Despite anything else in this agreement, the Customer acknowledges and agrees that Messagex may keep a reasonable number of copies of:
the Customer’s Confidential Information disclosed to Messagex under this agreement; and
the Customer Data,
for record keeping and quality control purposes, to allow Messagex to comply with all applicable Laws, and to otherwise fulfil the terms of Messagex’s agreements with Suppliers.
If Messagex terminates this agreement in accordance with clause 19.2, all of the Customer’s and the Customer’s Sub Accounts’ Messagex Credit shall be refunded.
If the Customer terminates this agreement in accordance with clause 19.1, all of Messagex Credit credited to the Customer’s Primary Account and any related Sub Account shall be forfeited.
19.5. Accrued rights and remedies
Termination of this agreement will not prejudice any right of action or remedy which may have accrued to either party prior to such termination.
20. Complaint Handling
A party must not start legal proceedings (except proceedings seeking interlocutory relief) until that party has fully complied with the Complaints Handling Policy.
21.Notices and other communications
21.1. Service of notices
Except as otherwise provided under this agreement, a notice, demand, consent, approval or communication under this agreement (Notice) must be:
in writing, in English and signed by a person duly authorised by the sender; and
hand delivered or sent by prepaid post or facsimile or email to:
in relation to the Customer, the Customer‘s address for Notices the specified in the Customer Request; and
in relation to Messagex to the address specified to be Messagex’s address on the Website from time to time,
as varied from time to time by Notice given by the recipient to the sender.
21.2. Effective on receipt
A Notice given in accordance with clause 21.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
if hand delivered, on delivery;
if sent by email, two hours after the time that the email is sent (unless the sender receives notification during that time that delivery of the email was not successful);
if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia); or
if sent by facsimile, when the sender’s facsimile system generates a message confirming successful transmission of the entire Notice unless, within eight Business Hours after the transmission, the recipient informs the sender that it has not received the entire Notice,
but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
21.3. Marketing & Product Information
Messagex may contact you from time to time to inform you of any company or product news, promotions and offers.
22.1. Approvals and consents
Except where this agreement expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under this agreement.
The Customer may only assign the Customer’s rights under this agreement with the prior written consent of Messagex.
Messagex may assign or novate any of its rights and obligations under this agreement to a Related Corporation of good standing by providing the Customer with notice of such assignment or novation in accordance with clause 21.1. Any other assignment or novation by Messagex of its rights and obligations under this agreement may occur with the prior written consent of the Customer.
22.3. Force Majeure
Neither party is liable for any failure to perform or delay in performing its obligations under this agreement if that failure or delay is due to anything beyond that party’s reasonable control. This clause does not apply to any obligation to pay money. The deadline for any obligation that is affected by the Force Majeure will be extended by a period equivalent to the period for which the Force Majeure has prevented that obligation being performed.
22.4. Entire agreement
This agreement together with the Customer Request constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing, which do not form part of, and may not be relied on by either party in construing, this agreement.
22.5. Further action
Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this agreement and any transaction contemplated by it.
Any indemnity or any obligation of confidence under this agreement is independent and survives termination of this agreement. Any other term by its nature intended to survive termination of this agreement survives termination of this agreement, including clauses 12, 13, 17, 18, 19.5 and this clause 22.6.
Each clause of this agreement and each part of each clause must be read as a separate and severable provision. If any provision is found to be void or unenforceable, that provision may be severed and the remainder of this agreement will continue in force.
A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
Except where this agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.