The following are the terms and conditions for use of the SMS Pal Service ("SMS Pal Service" or "the Service") by the User or the USER (hereinafter referred to as "the USER"). Please read them carefully.
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IMPORTANT: BY USING THE SMS PAL MESSENGER AND/OR ACCESSING ANY PART OF THE SMS PAL SERVICE THE USER IS AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS 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 TERMINATE THE REGISTRATION PROCESS, THEREFORE SURRENDERING ANY AND ALL AUTHORITY TO USE THE SERVICE. IF THE CLIENT IS DEEMED TO HAVE ORDERED THE SERVICE, SMS PAL'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 SMS PAL, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. THE SERVICE
The Service consists of a browser interface, message application, SMS gateway access, e-mail facility, data encryption, data transmission, data access, data storage and, if applicable, synchronization software. The USER is responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all third-party access charges (e.g., ISP, telecommunications) incurred while using the Service. SMS Pal makes no guarantees as to the continuous availability of the Service or any specific feature(s) of the Service. SMS Pal 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. The sender ID, although the USER is able to specify it, is not a guaranteed feature of this product. It is a requirement that the USER only specifies
the sender ID which corresponds to their own mobile phone account. Failure to do so may result in suspension and / or termination of the USERS account. Intentional forgery of sender ID for malicious or otherwise use will result in instant termination of any remaining USER credits.
2. USE OF PROPRIETARY SOFTWARE
Subject to the terms and conditions of this Service Agreement and Australian Law, SMS Pal 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 object code form only, and only in accordance with the applicable end user documentation, if any, and only in conjunction with the SMS Pal 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 SMS Pal products and/or services. As between the parties, the USER acknowledges that SMS Pal and its licensors retain ownership of all propriety applications, software, intellectual property "IP" 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.
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. The USER will also choose a password and a user name to be assigned. The USER is entirely responsible for maintaining confidentiality with regard to its password and account information. Furthermore, the USER is entirely responsible for any and all activities that occur under its account. SMS Pal will not be held liable to any third party claims and or actions taken with respect to services offered. The USER agrees to notify SMS Pal immediately of any unauthorized use of its account or any other breach of security.
4. MEMBER PRIVACY
It is SMS Pal's policy to respect the privacy of the USER. SMS Pal will not monitor, edit, or disclose any personal information about the USER or the USER's SMS Pal account, including its contents, without the USER's prior permission unless SMS Pal 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 SMS Pal;
(3) enforce this Service Agreement or protect SMS Pal's business or reputation, including without limitation upon termination, cancellation or suspension of this Agreement by SMS Pal;
(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. MESSAGE AND OTHER LIMITATIONS
SMS Pal assumes no responsibility for the deletion or failure to store information. SMS Pal has set no fixed upper limit on the number of messages the USER may send through the Service; however, SMS Pal 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. SMS Pal may, in the future, with prior notification, limit the amount of storage space available to each Member.
Message credits purchased from SMS Pal will have a finite limit of 12 months.
6. MEMBER CONDUCT
The USER agrees to abide by all applicable local, national and international laws and regulations and are 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:
A. Use the Service in connection with chain letters, junk mail, junk SMS messages, spamming or any duplicative or unsolicited messages (commercial or otherwise);
B. Harvest or otherwise collect information about others, including email addresses, without their consent;
C. Create a false identity or forged email or mobile phone address or header, or otherwise attempt to mislead others as to the identity of the sender or the origin of the message;
D. Transmit through the Service unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature;
E. Transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity;
F. Libel, defame or slander any person, or infringe upon any person's privacy rights;
G. Transmit any material that contains viruses, Trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;
H. Interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks;
I. Attempt to gain unauthorised access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means;
J. Interfere with another USER's use and enjoyment of the Service or another entity's use and enjoyment of similar services; or
K. Engage in any other activity that SMS Pal believes could subject it to criminal liability or civil penalty or judgment.
7. YOUR RIGHT TO CANCEL
A. 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 carry out such termination in accordance with the policies and procedures established by SMS Pal, which will be posted in the Billing Information section or similar location within the SMS Pal web site. Any questions concerning the appropriate method by which to cancel this Agreement, should be addressed to info@ SMS Pal.com.au
8. MODIFICATION OF TERMS; TERMINATION, CANCELLATION, AND SUSPENSION
A. Modification of Terms. SMS Pal frequently updates, modifies, and otherwise continually seeks to improve the SMS Pal services and products. Such changes often dictate that we simultaneously modify our Terms and Conditions of Use. As such, SMS Pal shall have the right to modify the terms of this Agreement and to change or discontinue any aspect or feature of the SMS Pal service, in either case, as it deems reasonably necessary. Such changes shall be effective immediately upon posting of such addition, change, or deletion. 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. The current version of this Agreement may be obtained at messenger.SMS Pal.com.au under TERMS AND CONDITIONS.
B. Termination, Cancellation and/or Suspension by SMS Pal; Disclosure of Information. This Agreement and the license granted hereunder may be terminated, cancelled and/or suspended by SMS Pal at any time if, in SMS Pal 's sole discretion, the USER breaches these Terms of Service. Such termination, cancellation and/or suspension by SMS Pal shall be effective immediately upon notification by SMS Pal to the USER in any reasonable manner, including but not limited to, notification by e-mail. Upon, during, and/or after any such breach, SMS Pal 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.
C. In the event that SMS Pal receives complaints from recipients or third parties with respect to the use of the Service, SMS Pal 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.
D. Termination or Cancellation by the USER. The USER IS free to terminate or cancel this Agreement at any time, in accordance with Section 7(E).
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 SMS Pal (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 SMS Pal and remove all SMS Pal software and applications on any computer, database, server (local or remote) in your possession or under its control. SMS Pal shall have no obligation to the USER after any termination or cancellation of this Service Agreement.
9. NO WARRANTIES OR LIABILITIES
THE USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICE AND THE INTERNET GENERALLY IS AT ITS OWN RISK AND THAT SMS PAL IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESS OR IMPLIED. SMS PAL WILL USE COMMERCIALLY REASONABLE EFFORTS TO MAKE ACCESS TO SMS PAL AVAILABLE TO THE USER THROUGH THE REQUIRED ACCESS PROTOCOLS, BUT MAKES NO WARRANTY OR GUARANTEE THAT THE USER WILL BE ABLE TO ACCESS SMS PAL AT ANY PARTICULAR TIME OR ANY PARTICULAR LOCATION.
B. ADDITIONAL LIMITATIONS.
Without limiting the generality of the terms set forth in Section 9(A), SMS Pal and its affiliates, agents, content providers, service providers, and licensors:
(i) HEREBY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES AS TO THE ACCURACY, COMPLETENESS, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OF SMS PAL GENERALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN, AS WELL AS ALL EXPRESS AND IMPLIED WARRANTIES THAT THE OPERATION OF SMS PAL 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 SMS PAL 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, SMS PAL 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.
C. HIGH RISK ACTIVITIES.
THE SMS PAL 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 SMS PAL 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, SMS PAL 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, SMS PAL'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 SMS Pal 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.
The USER agrees to indemnify, hold harmless, and defend SMS Pal 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 agrees to cooperate as fully as is reasonably required in the defence of any claim. SMS Pal reserves the right, at its own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by the USER.
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 Republic of South Africa. 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 SMS Pal 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 SMS Pal and the USER and no party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
13. PAYMENT FOR SMS PAL Messenger
SMS Pal Messenger is licensed by SMS Pal PTY Ltd to the user under the terms described in his agreement. The nature of the license is described herewith:
The license and the usage of the product, does not include any paid SMS (Mobile Text Message / Short Message Service) or Speedmail (e-mail) message units. The user receives the license upon registration and is issued an advertised amount of Message units, as per the advertised amount (on SMS Pal's Messenger web-site) at the time of the registration, AT NO COST TO THE USER. This is done to enable the user to TEST the software in order to make an informed purchasing decision in the future. This purchase is termed "The Initial Purchase".
Any purchases of message units made after The Initial Purchase will credit the user's account with the advertised number of message units. Such units will be credited to the User's account and will be managed as per SMS Pal's advertised pricing and general Terms and Conditions on SMS Pal's web site.
Should there be any reason for SMS Pal to suspend the Client's services, SMS Pal will notify the client immediately of its intention to suspend said services. Should the suspension result in a situation where the client still has credits (or message units that are pre-paid) at any stage, the client shall receive back the monetary value of such credits in full, save any expenses that may be incurred by SMS Pal to facilitate this remuneration, including but not limited to payment commissions, transfer duties, legal costs, third-party involvement. If the suspension arises due to the Client.s misuse of the service as deemed by breach of the terms and conditions of use, no refund or credit for unused credits may be issued by SMS Pal.
Payment for services, which include but is not limited to message unit purchases, shall be deemed to have been made as soon as the funds are available in SMS Pal's specified bank account.