Terms and Conditions

Please read the following terms and conditions carefully, they relate to use of the SMSport Service ("SMSport Service" or "the Service") by SMSport clients and Partners or Users (hereinafter referred to as "the User", "The Client" or The "Partner").

1. SMSport Service - "The Service"

SMSport Services are payable in advance as per the pricing published on the smsport.com.au web site or otherwise provided by formal written agreement.

SMSport will not apply message credits to User accounts until full payment has been received.

SMSport makes no guarantees whatsoever as to the continuous availability of the Service or any specific feature(s) of the Service at any time. SMSport reserves the right to change or terminate the Service and/ or alter the terms and conditions of this Agreement at any time without notice and with immediate effect. All fees paid to SMSport when such termination occurs will be addressed in the manner outlined later in this document.

All User Messages leaving the SMSport SMS Gateway shall be deemed to have been delivered when SMSport has delivered/sent the messages to the immediate destination that SMSport's software is programmed to do, including SMTP servers, Mobile telephone networks, or any other intermediary server or API that is deemed to be the point of dispatch of the message. SMSport does not guarantee delivery on behalf of any intermediary server or API or Mobile telephone networks or mail servers.

SMSport lays no claims to its network coverage. Although SMSport strives to provide extensive coverage aggregation services, mobile networks may choose from time to time to not be part of SMSport or its service providers' networks. This may result in messages not being delivered.

2. USE OF PROPRIETARY SOFTWARE

Subject to the terms and conditions of this Service Agreement and Australian Law, SMSport grants the User an individual, personal, non-sub licensable, non-exclusive and non-transferable license ("the License") to use its proprietary software and/or application service, in use form only, and only in accordance with the applicable end user documentation, if any, and only in conjunction with the SMSport Service Agreement. The User will not, directly or indirectly, reverse engineer, de-compile, disassemble or otherwise attempt to establish the source code or underlying ideas or algorithms of the software; modify, translate, or create derivative works based on the software/ application; or copy (except for archival purposes), rent, lease, distribute, assign, or otherwise transfer rights to the software/application; use the software/application for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels with regard to SMSport products and/or services. As between the parties, the User acknowledges that SMSport, and its licensors retain ownership of all propriety applications, software, intellectual property "IP" (Intellectual Property) and any portions or copies thereof, and all rights therein. Upon termination of this Service Agreement for any reason, this License will terminate and the User shall destroy and cease to use all software and applications. THE SOFTWARE IS PROVIDED AND APPLICATIONS ARE OFFERED, "AS IS" AND SUBJECT TO THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY FOUND IN THIS SERVICE AGREEMENT AND SUBJECT TO TESTING BY THE CLIENT OR User PRIOR TO ENTERING INTO THIS AGREEMENT.

3. MEMBER ACCOUNT, PASSWORD, AND SECURITY

To open an account for usage of the Service, the User must complete the registration process by providing us with current, complete and accurate information as prompted by the Membership/registration Form. Inaccurate details will result in suspension. The User will also choose a username and password to access their account. The User is entirely responsible for maintaining confidentiality with regard to its username, password and account information. Furthermore, the User is entirely responsible for any and all activities that occur under its account. SMSport will not be held liable to any third party claims and or actions taken with respect to services offered.

4. MEMBER PRIVACY

It is SMSport's policy to respect the privacy of the User. SMSport will not monitor, edit, or disclose any personal information about the User or the User's SMSport account, including its contents, without the User's prior permission unless SMSport has a good faith belief that such action is necessary to: (1) conform to legal requirements or comply with legal process; (2) protect and defend the rights or property of SMSport; (3) enforce this Service Agreement or protect SMSport 's business or reputation, including without limitation upon termination, cancellation or suspension of this Agreement by SMSport; (4) respond to request for identification in connection with claim of copyright or trademark infringement by the User or a claim by a third party that the User is using the Service in connection with an infringing, illegal or improper activity; or (5) act to protect the interests of the User or others. SMSport 's service transmits the Sender's name (From field) and/or email address with each message that the end-user sends. For more information, see SMSport's Privacy Policy.

The User agrees that SMSport may access its account, including its contents, as stated above or to respond to service or technical issues.

THE USER HEREBY GRANTS SMSport THE RIGHT TO SEND THE USER COMMUNICATION VIA E-MAIL OF ANY UPDATES, UPGRADES, NOTICES, OR OTHER INFORMATION THAT SMSport DEEMS IMPORTANT FOR THE USER TO KNOW, RELATING TO THE SERVICE.

5. MESSAGE AND OTHER LIMITATIONS

SMSport assumes no responsibility for the deletion or failure to store information. SMSport has set no fixed upper limit on the number of messages the User may send through the Service apart from how many message credits are left in the User's account; however, SMSport reserves the right, at its sole discretion, to determine whether or not the User's conduct is consistent with the letter and spirit of the Service Agreement and may terminate the Service if the User's conduct is found to be inconsistent with the Agreement. Please see POINT 17 below for more information on procedure at termination of the service. SMSport may, in the future, with prior notification, limit the amount of storage space available to each Member.

The sender ID that may be sent as part of mobile text messages is not a guaranteed feature and may not be sent without any notification.

Although SMSport prides itself on speedy delivery of messages, messages may be delivered late due to queuing or network traffic. This will still result in the message being seen as "delivered" by the User when viewing their SMS Reports within their account administration area.

6. MEMBER CONDUCT

Any unauthorized commercial use of the Service, is expressly prohibited. The User agrees to abide by all applicable local, national and international laws and regulations and is solely responsible for all acts or omissions that occur under its account or password, including the content of any transmissions through the Service. By way of example, and not as a limitation, the User agrees not to:

7. FEES, PAYMENT AND YOUR RIGHT TO CANCEL

Fees. In consideration for the use of SMSport's services, the User shall pay to SMSport a transaction or subscription fee (as appropriate) for messages delivered or partially delivered using any available delivery method, at the applicable rate then in effect. SMSport may from time to time offer limited time "Free Trial" or similar promotions during which no transaction fees or reduced transaction fees shall apply. Such promotions are intended for Users to test the capabilities of the Service and/or for casual, personal use only. During such promotions, all provisions of this Agreement shall remain in full force and effect.

All fees are payable in advance. Failure to purchase credits upfront will result in suspension of the services. Upfront payment refers to payment that is made within a reasonable time so as to allow SMSport to add the SMS credits to the client's account in the case of cheque and direct bank deposit payments..

Payment. Transaction fees are due and payable at the time of or before SMSport delivers a message to the User's recipients via every method of delivery based upon the billing package selected by SMSport. Payment shall be deemed to have been made as soon as the fee is available in SMSport's bank account.

Credit Card Payment. If the User has elected to pay for the Service by credit card, and SMSport does not receive payment from the credit card issuer, the User agrees to pay all amounts due, immediately upon demand by SMSport. All amounts are pre-paid and the User agrees to payment and the Terms and Conditions of such payment when such payment is made. SMSport reserves the right to come to other payment arrangements on a case-by-case basis. (Agreements with the credit card issuer governs use of the User's credit card, and the User must refer to that agreement to ascertain its rights and liabilities as a cardholder.) All credit card payments are calculated in Australian Dollars and may be subject to currency conversion fluctuations. The final purchase amount is the amount reflected on the Credit Card holder's statement.

Termination or Cancellation by the User. The User is free to terminate or cancel this Agreement at any time, and for any reason; provided, however, for such termination or cancellation to be effective the User must advise SMSport in writing immediately of their wish to carry out such termination. On termination of the agreement for any reason at any time any and all past due fees payable to SMSport must be paid within 7 days and all remaining valid account credits will be forfeited by the User. Any questions concerning the appropriate method by which to cancel this Agreement, should be addressed to accounts@SMSport.com.au

Should there be a cost increase AFTER the client has purchased message units from SMSport, SMSport will give the client 14 days' notice of such an increase which will be applicable to such credits that are still in the client's message unit account. Within this notification period the client may decide to continue with the service and the said increase, or to suspend the service upon which SMSport will refund the client to the value of any message unit credits that may be left over in the client's account.

The client acknowledges that SMSport is dependant on various telecommunications networks and institutions for the delivery of its messages and that SMSport may adjust its prices and offering , should the prices be adjusted due to reasons which are not in SMSport's control. SMSport undertakes to notify the client of such adjustments in writing, prior to implementing such adjustments. Should there be a cost increase AFTER the client has purchased message units from SMSport, SMSport will give the client 14 days' notice of such an increase which will be applicable to such credits that are still in the client's message unit account. Within this notification period the client may decide to continue with the service and the said increase, or to suspend the service upon which SMSport will refund the client to the value of any message unit credits that may be left over in the client's account. Should the client's account not have any credits left, the said account will automatically expire. The account will be re-activated upon payment for new message units. Any message units purchased must be used up within 120 days from the date on which it had been purchased. SMSport may extend this period on a case-by-case basis at its sole discretion.

Refunds for message credits: The client can not request request a refunds of any monies paid to SMSport.

8. MODIFICATION OF TERMS; TERMINATION, CANCELLATION, AND SUSPENSION

Modification of Terms. SMSport frequently updates, modifies, and otherwise continually seeks to improve the SMSport services and products. Such changes often dictate that we simultaneously modify our Terms and Conditions of Use. As such, SMSport shall have the right to modify the terms of this Agreement and to change or discontinue any aspect or feature of the SMSport service, in either case, as it deems reasonably necessary. Such changes shall be effective immediately upon posting of such addition, change, or deletion within the Terms section of the smsport.com.au web site. Any use by the User of the Service after any such change has been posted shall constitute the acceptance of any such changes. If the User does not agree with any such changes, the Service may be cancelled in accordance with the procedures for cancellation set forth in this Agreement. The User acknowledges its responsibility to review this Agreement from time to time and to be aware of any such changes.

Termination, Cancellation and/or Suspension by SMSport; Disclosure of Information. This Agreement and the license granted here under may be terminated, cancelled and/or suspended by SMSport at any time if, in SMSport's sole discretion, the User breaches these Terms of Service. Such termination, cancellation and/or suspension by SMSport shall be effective immediately upon notification by SMSport to the User in any reasonable manner, including but not limited to, notification by e-mail. Upon, during, and/or after any such breach, SMSport may elect to suspend, terminate and/or cancel this Agreement and/or recover any and all damages from the User arising from or relating to the event(s) giving rise to the suspension, termination or cancellation. SMSport reserves the right to suspend the client's service at any stage for any reason it may deem necessary to continue to provide any of its services in a way that may be hindered by the Client's status as being a SMSport Client, financial status of the client or the content of the messages originating from the client.

In the event that SMSport receives complaints from recipients or third parties with respect to the use of the Service, SMSport additionally reserves the right, in its sole discretion, to disclose any and all information to the recipient, applicable authorities or any other party with regard to its clients and application Users.

Termination or Cancellation by the User. The User free to terminate or cancel this Agreement at any time, in accordance with Section 7(E).

Obligations Upon Termination and/or Cancellation. Upon any termination, cancellation and/or suspension of this Service Agreement, the User is responsible for any obligations then accrued including, but not limited to, payment of any costs or charges that may arise in connection with such termination, cancellation and/or suspension, and payment of all outstanding transaction fees for use prior to said termination, cancellation and/or suspension occurs. Payment and other obligations under this Service Agreement are not suspended, stayed, or otherwise affected by a suspension of access to / or use of SMSport (in whole or in part) where said suspension arises from the User's failure to comply with, or violation of, the terms of this Service Agreement or of any law or legal obligation. Upon termination and/or cancellation, for any reason, the User agrees to immediately cease using SMSport and remove all SMSport software and applications on any computer, database, server (local or remote) in your possession or under its control. SMSport shall have no obligation to the User after any termination or cancellation of this Service Agreement, excepting point F below.

Financial obligations of SMSport upon Termination and/or Cancellation. Should the termination of services result in a situation where the client still has credits (or messages that are pre-paid) at any stage, the client shall not receive back any monetary value of such credits in any part.

9. NO WARRANTIES OR LIABILITIES

GENERALLY. THE User EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICE AND THE INTERNET GENERALLY IS AT ITS OWN RISK AND THAT SMSport IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESS OR IMPLIED. SMSport WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAKE ACCESS TO SMSport AVAILABLE TO THE User THROUGH THE REQUIRED ACCESS PROTOCOLS, BUT MAKES NO WARRANTY OR GUARANTEE THAT THE User WILL BE ABLE TO ACCESS SMSport AT ANY PARTICULAR TIME OR ANY PARTICULAR LOCATION.

ADDITIONAL LIMITATIONS. Without limiting the generality of the terms set forth in Section 9(A), SMSport and its affiliates, agents, content providers, service providers, and licensors:

(i) HEREBY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES AS TO THE ACCURACY, COMPLETENESS, NONINFRINGEMENT, MERCHANTABLIITY OR FITNESS FOR PARTICULAR PURPOSE OF SMSport GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN, AS WELL AS ALL EXPRESS AND IMPLIED WARRANTIES THAT THE OPERATION OF SMSport GENERALLY AND ANY CONTENT OR SERVICES CONTAINED THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE;

(ii) SHALL IN NO EVENT BE LIABLE TO THE User OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE CAUSED IN WHOLE OR IN PART BY FAILURES, DELAYS OR INTERRUPTIONS OF THE SERVICE GENERALLY, AND ANY ASPECT ANCILLARY THERETO; (THE User AGREES TO INDEMNIFY SMSport PURSUANT TO SECTION 11 HEREOF FOR ANY AND ALL THIRD PARTY CLAIMS ARISING FROM SUCH FAILURES, DELAYS OR INTERRUPTIONS IN CONNECTION WITH REGARD TO USE OF THE SERVICE);

WITHOUT IN ANY WAY LIMITING THE FOREGOING, SMSport SHALL IN NO EVENT HAVE (IN THE AGGREGATE) ANY LIABILITY WHATSOEVER IN CONNECTION WITH THIS AGREEMENT IN EXCESS OF AN AMOUNT EQUAL TO TWO TIMES THE LOWEST MONTHLY TRANSACTION FEE APPLICABLE TO SUCH ACCOUNT AND /OR CLAIM IN EFFECT FOR THE MONTHLY PERIOD IMMEDIATELY PRECEDING THE DATE OF THE FIRST CLAIM MADE BY THE User AND/OR THE User ALLEGING LIABILITY.

HIGH RISK ACTIVITIES. THE SMSport SERVICE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE AS ONLINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING BUT NOT LIMITED TO USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF SMSport COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). IN ADDITION TO THE OTHER DISCLAIMERS AND LIMITATIONS CONTAINED WITHIN THIS AGREEMENT, SMSport AND ITS AFFILIATES, AGENTS, CONTENT PROVIDERS, SERVICE PROVIDERS AND LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES INCLUDING EMERGENCY NOTIFICATION SERVICES.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY. IN SUCH JURISDICTIONS, SMSport's LIABILITY (AND THE LIABILITY OF ITS AFFILIATES, AGENTS, CONTENT PROVIDERS AND SERVICE PROVIDERS) SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

10. THIRD PARTY BENEFICIARIES

Notwithstanding anything to the contrary contained herein, the provisions for "No Warranties and Liabilities" set forth in Section 9 herein are for the benefit of SMSport and its affiliates, agents, content providers and service providers and each shall have the right to assert and enforce such provisions directly on its own behalf.

11. INDEMNIFICATION

The User agrees to indemnify, hold harmless, and defend SMSport and its affiliates, agents, content providers and service providers, against any and all claims, liabilities, damages, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, attorneys' fees and disbursements) arising from or relating to (i) the use of the Service in any manner which violates the terms of this Service Agreement or otherwise violates any law, rule, or regulation and (ii) any claims made by third parties arising from your use of the Service, including without limitation any and regulation all third party claims arising from or related to any failure, delay or interruption to the Service. The User agree to cooperate as fully as reasonably required in the defence of any claim. SMSport reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by the User.

12. MISCELLANEOUS

The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Service Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Service Agreement will otherwise remain in full force and effect and enforceable. In this Agreement, any reference to the singular includes the plural and vice versa, any reference to natural persons includes legal persons and vice versa and any reference to a gender includes the other genders. This Agreement shall be governed by and construed and interpreted in accordance with the law of the Commonwealth of Australia. No agency, partnership, joint venture, or employment is created as a result of this Service Agreement and the User does not have any authority of any kind to bind SMSport in any respect whatsoever. In any action or proceeding to enforce rights under this Service Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Service Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. These terms and conditions constitute the whole agreement between SMSport and the User and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.

13 SMSport API SPECIFIC TERMS & CONDITIONS

SMSport offers the facility for individuals or businesses to connect to its server in order to facilitate text messaging directly to SMSport's Gateway. These terms do not exclude the aforegoing terms in this agreement.

13.1 SMSport reserves the right to approve clients and API connections at its sole discretion.

13.2 SMSport encourages the use and publicity of anti-spam policies.

13.3 The client will be supplied with a login and password and will need to specify what IP Address range the messages will be posted from. This will ensure that the connection is at all times secure from SMSport's side. Security measures over and above this will be the client's responsibility. Ensuring that the IP address security is implemented will be the responsibility of the User, who needs to e-mail the IP address to SMSport and request that it be implemented and tested.

13.4 Although SMSport will provide API connection specifications and will attempt to keep the specifications accurate and up to date, these specifications may be incomplete and may change from time to time without SMSport informing the client that it has changed. It is the client's sole responsibility to test the specifications thoroughly on a regular basis, as SMSport will not accept responsibility for specifications that may be incorrect or incomplete.

IMPORTANT: BY PLACING SMSport PRODUCTS ON A WEBSITE AND/OR ACCESSING ANY PART OF THE SMSport SERVICE THE User IS AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, AND CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS SERVICE AGREEMENT. SHOULD THE User NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, OR CANNOT COMPLY WITH THESE TERMS AND CONDITIONS, HE/ SHE/ IT SHOULD CLOSE THE BROWSER WINDOW; THEREFORE TERMINATING THE REGISTRATION PROCESS WILL, AND AGREEING TO STOP ALL USE OF THE SERVICE AND SURRENDERING ANY AND ALL AUTHORITY TO USE THE SERVICE.

IF THE User IS DEEMED TO HAVE ORDERED THE SERVICE, SMSport's ACCEPTANCE IS EXPRESSLY CONDITIONED UPON ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS SERVICE AGREEMENT, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY SMSport, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

THE User AGREES THAT ALL TERMS AND CONDITIONS HEREWITH PUBLISHED SHALL BE BINDING AND THAT SHOULD THERE BE A CONTRADICTION BETWEEN PRODUCT-SPECIFIC TERMS AND CONDITIONS, AND GENERAL TERMS AND CONDITIONS, THE PRODUCT-SPECIFIC TERMS AND CONDITIONS SHALL APPLY.