Terms & Conditions

Legal Documents

1.1. Defined terms

In this agreement:

Acceptable Currency means a currency that SMSGlobal has accepted as consideration for the purchase of SMSGlobal Credit.

Acceptable Use Policy means SMSGlobal’s Acceptable Use Policy (AUP) as published on the Website from time to time.

Account means an online account used to access the Services.

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.

Account Balance means, for a given Account, the balance of SMSGlobal Credit for that Account.

Additional Services means all Services other than Messaging Services provided by SMSGlobal to the Customer under this agreement.

Application-To-Person (A2P) Messaging means high traffic SMS sent primarily by a business, organization, or entity through an application to communicate with end-users, usually in one-way communication.

Business Day means any day except a Saturday, Sunday or any other day on which commercial banks in the State of California, USA are authorized or required by law to close.

Business Hours means the period between 9.00am and 5.00pm on a Business Day.

Campaign Registry (TCR) facilitates the registration of 10DLC A2P messaging campaigns in North America, requiring users to adhere to CTIA Messaging Principles.

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 SMSGlobal notifies the Customer of SMSGlobal'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).

Communication Surcharges refer to Fees associated with SMSGlobal Services provided to the Customer, including any applicable telecommunication provider fees or surcharges (e.g. pass-through carrier charges).

Complaints Handling Policy means SMSGlobal’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;
1. information that is by its nature confidential;
2. information that is designated by the Disclosing Party as confidential; and
3. 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 (1); and
all copies of the information, notes and other records referred to in paragraphs 1 and 2, 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).

CTIA Messaging Principles means:

1. the CTIA Messaging Principles and Best Practices, dated as of July, 2019, as amended, supplemented and/or superseded from time to time by the CTIA The Wireless Association; or

2. any other similar documents or guidelines promulgated from time to time by the CTIA The Wireless Association.

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 SMSGlobal when establishing an Account.

Customer’s Primary Account means the Account established under this agreement which is determined by SMSGlobal 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 SMSGlobal 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 the USA).

Laws means:

1. the common law and equity;

2. any statute, regulation, by-law, ordinance or subordinate legislation (including any data protection laws, privacy laws, any laws that requires you to obtain consent from an End User or provide notice to an End User in connection with such End User’s use of each Customer Application)

3. any state, federal, and international laws, regulations, and rules related to the recording or monitoring of telephone calls, SMS messages, or other communications, the U.S. Foreign Corrupt Practices Act, rules established by the Federal Communications Commission, any federal or state anti-spam statute or regulation, including the CAN SPAM Act of 2003, or any federal or state statute or regulation prohibiting the dissemination of unsolicited communications, including the Telephone Consumer Protection Act of 1991 (TCPA); or

4. any license, permit, authorization, accreditation, code of practice, code of conduct, order, direction or other requirements which is enforceable against the Customer or SMSGlobal (as the case may be) or which is issued under an instrument referred to in paragraph 2, 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 SMSGlobal Systems.

Message Cost means the cost to the Customer of submitting a Message for sending to the SMSGlobal 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 SMSGlobal 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 SMSGlobal Systems). Message Recipient means, in relation to a Message, the Customer’s intended recipient of that Message.

Message Recipient means, in relation to a Message, the Customer’s intended recipient of that Message.

MMS means Multimedia Messaging Service.

Opt-In means the end-user provides consent to receiving messages from the Customer.

Opt-Out means the end-user revokes consent to receiving messages from the Customer.

Person-To-Person (P2P) Messaging means an individual person who subscribes to specific wireless messaging services or messaging applications in two-way communication.

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 of 1974, 5 U.S.C. § 552a.

Privacy Laws means:

1. the Privacy Act, Telemarketing Sales Rule and the Do Not Call Implementation Act of 2003, and the Spam Act 2003 (Cth);

2. all codes, guidelines, service standards and procedures issued by a Governmental Agency; and

3. all other laws, rules and regulation in any relevant jurisdiction (including the USA), to the extent they relate to the privacy, protection, use or disclosure of Personal Information or data.

Privacy Policy means SMSGlobal’s privacy policy as published on the Website from time to time.

Program means an SMS-based one-way or two-way conversation that an end-user Opts In to receive.

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 Securities Act of (1933) and the Securities and Exchange Act (1934).

Services has the meaning given to that term in clause 2.2.

Short Code means a 5 or 6 digit number that represents the originating or terminating end of an SMS conversation, exclusively used as A2P within the USA.

1. Dedicated Short Code means a private Short Code allocated exclusively to one account, whether it be used by a business, organization or entity.

SMSGlobal Credit means an amount, represented in units of an Acceptable Currency, that may be used as consideration for Services provided in the future.

SMSGlobal Pre-Existing IPR means any Intellectual Property Rights owned and created by SMSGlobal prior to the Commencement Date (together with any improvements, modifications and enhancements made to those rights during the term of this agreement).

SMSGlobal Systems means all hardware, software, materials and resources used by (or on behalf of) SMSGlobal to provide the Services (and includes the Web Tools).

Spam, Junk-Messages or Unsolicited Messages (UM) means the sending of the same, or substantially similar, unsolicited SMS messages, to more than one recipient.

Standard Long Code means a standard local phone number that can send and receive SMS, usually containing ten digits.

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 SMSGlobal Systems for sending to the relevant Message Recipient.

Telephone Consumer Protection Act (TCPA) means the governing telecommunications act protecting consumers from the like of Spam, Junk-Messages or Unsolicited Messages (UM), etc.

Ten-Digit Long Code (10DLC) means commercial Long Code used for A2P messaging. All A2P 10DLC messaging campaigns must be registered with TCR and adhere to CTIA Messaging Principles as of June 1, 2021.

Toll-Free Long Code means a toll-free phone number that supports both voice and text communication, typically used for A2P messaging.

Website means the SMSGlobal website located at www.smsglobal.com (or any successor website as notified to the Customer from time to time).

Web Tools means:

the MXT portal (or any related platform);
SMSGlobal’s application programming interfaces; and
any other tools specifically made available to the Customer by SMSGlobal to enable the Customer to receive the benefit of the Services.

1.2. Interpretation

In this agreement, unless the contrary intention appears:

1. headings are for ease of reference only and do not affect the meaning of this agreement;
2. the singular includes the plural and vice versa and words importing a gender include other genders;
3. other grammatical forms of defined words or expressions have corresponding meanings;
4. 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;
5. 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;
6. a reference to a party includes its executors, administrators, successors and permitted assigns;
7. the meaning of general words is not limited by specific examples introduced by 'including', 'for example', or similar expressions;
8. 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;
9. any agreement, representation, warranty or indemnity in favor 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;
10. words and expressions importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies; and
11. 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

SMSGlobal will:

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.

2.2. Services

Services means initially, the Messaging Services and any such other Additional Services as agreed between SMSGlobal 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:
1. When you use the SMSGlobal 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.
2. If the Supplier Chain includes one or more Suppliers, your Message is considered to be delivered by SMSGlobal once it has been transmitted from the SMSGlobal 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).
3. 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.
4. Having regard to clause (2.2.2.1), (2.2.2.2) and (2.2.2.3), 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 SMSGlobal does not accept responsibility for any failure of, or delay in, the delivery of a Message to a Message Recipient provided that SMSGlobal 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).
5. If the Supplier Chain does not include any Suppliers, SMSGlobal’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:
1. 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;
2. ensure that no unauthorized use is made of the Web Tools, whether through the Customer’s Primary Account or any Sub Account;
3. comply with all of SMSGlobal's operating and security requirements and procedures relating to:
1. 1. access to the Web Tools; and
  2. 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;

1. other than as expressly permitted under this agreement, not obtain (nor attempt to obtain) any access to, or interfere with:
1. 1. any programs or data of SMSGlobal, a Supplier or any other client of SMSGlobal; or
  2. any part of the SMSGlobal Systems or any Supplier's systems, hardware, software or networks of a Supplier; and
1. not introduce any Harmful Code into the SMSGlobal 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 SMSGlobal, in which case SMSGlobal may take such action as it considers appropriate (which may include changing the Customer's passwords and other security information).

2.4. Continuity of Services & Suspension

Notwithstanding anything else in this agreement, SMSGlobal does not undertake, warrant or guarantee that the Services (including access to the Web Tools or other SMSGlobal 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 SMSGlobal, including the systems hardware and software of any services provided by Suppliers (External Factors). Subject only to clause 17.4, SMSGlobal 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, SMSGlobal will use reasonable commercial endeavors to restore the Services to an operational state with the minimum practicable delay.
The Customer acknowledges that, from time to time:
1. SMSGlobal will conduct routine and other maintenance on the Website and the SMSGlobal Systems; and
2. 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 SMSGlobal 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:
1. SMSGlobal wishes to repair, improve, and/or upgrade the underlying technology of the SMSGlobal Systems;
2. SMSGlobal's access to any system, software, hardware or network of any Supplier is suspended for any reason;
3. SMSGlobal is required to do so by any Governmental Agency or Supplier; or
4. for any other justifiable reason, including but not limited to, circumstances where the Customer (or the Customer’s Sub Account Nominees) in SMSGlobal’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.

3.1. Customer’s Primary Account

The Customer:

warrants that all information provided in the Customer Request and any other information provided to SMSGlobal in the course of using the SMSGlobal 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. Licenses and compliance

The Customer must:

obtain and maintain throughout the term of this agreement all relevant licenses, approvals, permits and certificates:
1. required in respect of delivery of the Messages; and
2. otherwise required in order to receive the benefit of the Services;
comply with all applicable Laws and industry codes and practices; and
comply with SMSGlobal’s directions, policies and procedures relating to the use of the SMSGlobal 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:
1. is defamatory, abusive or of a vulgar, obscene or menacing nature;
2. is false, inaccurate, misleading or unlawful;
3. is invasive of a person’s privacy;
4. is hateful or racially, ethnically, or otherwise objectionable; or
5. SMSGlobal 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:
1. 1. any applicable Law (including the Privacy Laws) or industry code or practice; or
  2. any other rules or guidelines posted on the Website or otherwise notified to the Customer by SMSGlobal from time to time;
in any way that may have a detrimental effect on the goodwill or good standing of SMSGlobal or any Supplier;
in a way that may expose SMSGlobal 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 SMSGlobal’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).
1. SMSGlobal Shortcode 91948 SMSGlobal Promotional Alerts Text COUPON to 91948 to Opt In to receive promotional alerts from SMSGlobal. A confirmation message will be sent.
  Message frequency varies. Message & Data Rates May Apply. A confirmation message will then be sent with Opt Out instructions
  Shortcode Terms: For help, text "HELP" to 91948. To cancel, text "STOP" to 91948 at any time. For customer support, call 1-800-676-5500
  Summary Terms and Conditions: I confirm that I hold the account corresponding to the mobile phone number I have entered, or that I have the account holder’s permission to use this service. By sending a text message with the keyword COUPON, you acknowledge that you agree to terms of service and are subscribed until you send STOP to SMSGlobal Promotional Alerts subscription service provided by SMSGlobal with these carriers : Alltel, AT&T, Boost, Centennial Cellular, Cincinnati Bell, MetroPCS, Sprint, T-Mobile, Unicel, U.S. Cellular, Virgin Mobile USA, and Verizon Wireless but is not compatible with all handsets. Carriers are not liable for delayed or undelivered messages.
2. SMSGlobal Shortcode 68338 SMSGlobal Promotional Alerts Text COUPON to 68338 to Opt In to receive promotional alerts from SMSGlobal. A confirmation message will be sent.
  Message frequency varies. Message & Data Rates May Apply. A confirmation message will then be sent with Opt Out instructions
  Shortcode Terms: For help, text "HELP" to 68338 . To cancel, text "STOP" to 68338 at any time. For customer support, call 1-800-676-5500
  Summary Terms and Conditions: I confirm that I hold the account corresponding to the mobile phone number I have entered, or that I have the account holder’s permission to use this service. By sending a text message with the keyword COUPON, you acknowledge that you agree to terms of service and are subscribed until you send STOP to SMSGlobal Promotional Alerts subscription service provided by SMSGlobal with these carriers : Alltel, AT&T, Boost, Centennial Cellular, Cincinnati Bell, MetroPCS, Sprint, T-Mobile, Unicel, U.S. Cellular, Virgin Mobile USA, and Verizon Wireless but is not compatible with all handsets. Carriers are not liable for delayed or undelivered messages.
3. SMSGlobal Shortcode 91948 Pin Codes Text ALERTS to 91948 to Opt In to receive News & Updates Alerts from SMSGlobal
  1 Message Per request. Message & Data Rates May Apply. A confirmation message will then be sent with Opt Out instructions
  Shortcode Terms: For help, text "HELP" to 91948. To cancel, text "STOP" to 91948 at any time. For customer support, call 1-800-676-5500
  Summary Terms and Conditions: I confirm that I hold the account corresponding to the mobile phone number I have entered, or that I have the account holder’s permission to use this service. By sending a text message with the keyword ALERTS, you acknowledge that you agree to terms of service and are subscribed until you send STOP to SMSGlobal News & Updates Alerts subscription service provided by SMSGlobal with these carriers : Alltel, AT&T, Boost, Centennial Cellular, Cincinnati Bell, MetroPCS, Sprint, T-Mobile, Unicel, U.S. Cellular, Virgin Mobile USA, and Verizon Wireless but is not compatible with all handsets. Carriers are not liable for delayed or undelivered messages.
4. SMSGlobal Shortcode 68338 Pin Codes Text ALERTS to 68338 to Opt In to receive News & Updates Alerts from SMSGlobal
  1 Message Per request. Message & Data Rates May Apply. A confirmation message will then be sent with Opt Out instructions
  Shortcode Terms: For help, text "HELP" to 68338 . To cancel, text "STOP" to 68338 at any time. For customer support, call 1-800-676-5500
  Summary Terms and Conditions: I confirm that I hold the account corresponding to the mobile phone number I have entered, or that I have the account holder’s permission to use this service. By sending a text message with the keyword ALERTS, you acknowledge that you agree to terms of service and are subscribed until you send STOP to SMSGlobal News & Updates Alerts subscription service provided by SMSGlobal with these carriers : Alltel, AT&T, Boost, Centennial Cellular, Cincinnati Bell, MetroPCS, Sprint, T-Mobile, Unicel, U.S. Cellular, Virgin Mobile USA, and Verizon Wireless but is not compatible with all handsets. Carriers are not liable for delayed or undelivered messages.

3.4. Acceptable Use Policy

Without limiting clause 3.3, the Customer shall comply at all times with SMSGlobal’s Acceptable Use Policy.
Where SMSGlobal 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

The Customer:
1. is solely responsible for all Messages (whether submitted or submitted on the Customer’s own behalf or on behalf of a third party);
2. must inform SMSGlobal as soon as possible if the Customer suspects or becomes aware of any unauthorized use of the Customer’s Primary Account or any related Sub Account; and
3. acknowledges and agrees that SMSGlobal 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), SMSGlobal and the Suppliers may, in their absolute discretion, monitor the Messages transmitted using the SMSGlobal 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 SMSGlobal from time to time, provide SMSGlobal with volume forecasts for the use of the Services and such other information that SMSGlobal may reasonably request concerning the Customer's use of the Services; and
provide SMSGlobal 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.

SMSGlobal reserves the right to modify this agreement at any time.
By using the Services, the Customer agrees that SMSGlobal 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.
SMSGlobal will use its best endeavors to update the version reference at the head of this agreement following any amendments to its terms in accordance with this clause 4.

5.1. Sub Accounts

Upon being requested to do so by the Customer in the manner designated by the SMSGlobal Systems, SMSGlobal 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 SMSGlobal 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 SMSGlobal expressly agrees in writing otherwise, the Customer is responsible in all respects for a Sub Account (including the indemnity in favor of SMSGlobal 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

SMSGlobal may, in its absolute discretion, suspend any Sub Account created by the Customer without notice.

5.4. Stand Alone Sub Accounts

SMSGlobal 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 SMSGlobal. 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 SMSGlobal expressly agrees in writing that this clause 5.5 does not apply, the Customer:

unconditionally guarantees to SMSGlobal the punctual observance and performance by each of its Stand Alone Sub Account holders of their respective obligations to SMSGlobal arising under their respective agreement in relation to the Services; and
indemnifies SMSGlobal 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:
1. a breach by a Stand Alone Sub Account holder of its agreement with SMSGlobal for the Services;
2. any negligent or fraudulent act, error or omission by a Stand Alone Sub Account holders, its personnel, agents or Message Recipients;
3. 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
4. any Claim by a third party (including any Supplier or Message Recipient) against SMSGlobal relating to the Services or the subject matter of the SMSGlobal’s agreement with a Stand Alone Sub Account holder.

6.1. Applicable Message Costs

The Message Costs charged by SMSGlobal to the Customer will be those prices indicated to the Customer at the time of making the relevant purchase of Messaging Services using the SMSGlobal Systems.
The Customer agrees to pay all applicable taxes and Communication Surcharges associated with SMSGlobal Services. Please see section 9.2. regarding eligibility for exemptions on any taxes and Communication Surcharges.
The Customer acknowledges that SMSGlobal may offer different pricing for Messages Services to different Customers based on membership or other categories from time to time.
Message frequency varies. Message and data rates may apply and can change depending on message destination.

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 SMSGlobal 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.

7.1. Basis for charging

The Customer agrees that:

amounts paid by a Customer to SMSGlobal constitutes a purchase by the Customer of SMSGlobal Credit. The SMSGlobal 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 SMSGlobal Systems.

7.2. Account Balance must be in credit

At the time of purchasing Services using the SMSGlobal Systems, the Customer’s Account Balance must contain sufficient SMSGlobal Credit to cover the entire cost of that transaction. SMSGlobal will not allow a Customer’s Account Balance to go into debit.

7.3. Nature of the SMSGlobal Credit

The Customer acknowledges and agrees that:

notwithstanding that the Customer’s SMSGlobal Credit is represented in the SMSGlobal 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 SMSGlobal except as is prescribed by Law or expressly prescribed by this agreement;
no trust or other fiduciary relationship exists between SMSGlobal and the Customer or any Sub Account Nominee;
SMSGlobal Credits are:
1. not transferable from Customer to another Customer; and
are transferable between a Customer and its Sub Account Nominee with the express consent of SMSGlobal.

7.4. Expiry of SMSGlobal Credit

SMSGlobal reserves the right to cancel SMSGlobal Credit which have not been used within one year effective from 1st Nov 2019 for all credits applied after this date by the Customer in accordance with clause 7.1(1).

7.5. Subscription plan

This clause only applies to Customers who have signed up with any of SMSGlobal's subscription plans. Subscription plans include Grow, Build, and Scale, and are subject to change at any time.

SMSGlobal subscription plans are currently only available in the USA.

Upon signing up with an SMSGlobal subscription plan, the Customer acknowledges and agrees that:

a monthly subscription plan has a minimum commitment of 3 months. An invoice will be sent in arrears at the end of the billing cycle, including any Additional Usage.
a yearly subscription plan has a minimum commitment of 12 months. The Customer can elect to pay a yearly subscription in two methods:
1. monthly instalments, in which an invoice will be sent in arrears at the end of the billing cycle, including any Additional Usage, throughout the 12 months; or
2. pay the full yearly subscription in one transaction, plus any additional usage invoiced in arrears at the end of that month’s billing cycle; and
all unused credits are terminated once the monthly billing cycle has ended, meaning:
1. there are no refunds for unused credits; and
2. there is no rollover of unused credits within a given month to the next.

Additional Usage regarding subscription plans refers to all SMSGlobal products and services provided that exceed the monthly threshold as agreed upon in the subscription plan and will be charged according to clause 6.1

8.1. Authorization to direct debit

The Customer may authorize SMSGlobal 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 SMSGlobal.

8.2. Confirmation of Direct Debit Request Form details prior to initial drawing

SMSGlobal 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 authorization

The Customer may vary its authorization to SMSGlobal to perform Direct Debit Transactions under clause 8.1 by submitting a new, completed Direct Debit Request Form to SMSGlobal.
When the Customer submits a Direct Debit Request Form to SMSGlobal, all previous Direct Debit Request Forms cease to have any effect.

8.4. Cancelling a direct debit authorization

The Customer may cancel its authorization to SMSGlobal to perform Direct Debit Transactions under clause 8.1 by providing SMSGlobal written notice.
A notice under paragraph 8.4.1 will not remove SMSGlobal’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.
The Customer may at any time contact the financial institution at which its nominated account is held to stop or cancel its direct debit authorization under clause 8.1.

8.5. Customer obligations

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;
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;
ensure that sufficient cleared funds are available for Direct Debit Transactions;
ensure it is aware of any fees chargeable by its financial institution for failed Direct Debit Transactions as it is responsible for these fees;
reimburse any fees incurred by SMSGlobal for failed Direct Debit Transactions due to insufficient clear funds being available in the nominated account;
arrange payment by another means of any outstanding amounts owed to SMSGlobal where a Direct Debit Transaction fails; and
inform SMSGlobal 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.

8.6. Privacy

SMSGlobal 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.

8.7. Complaints

The Customer may raise issues arising under this clause 8 by providing SMSGlobal notice of its Complaint in accordance with the Complaints Handling Policy.

Unless otherwise provided on the pricing page on the Site, all charges and fees for the Services are exclusive of any country, province, federal, state or local taxes, including without limitation, use, sales, value-added, privilege, or other taxes, levies, imports, duties, fees, surcharges, governmental assessments and withholdings (“Taxes”).

The Customer will be solely liable for and will pay upon demand all Taxes associated with Customer’s access to and use of the Services and shall not deduct any such amounts, or any other withholdings, set-offs or deductions, from amounts Customer owes SMSGlobal, but will not be responsible for taxes based on SMSGlobal’s net income.
The Customer may present SMSGlobal with an exemption certificate eliminating Customer’s and SMSGlobal’s liability to pay certain Taxes. Once SMSGlobal has received and approved the exemption certificate, the Customer shall be exempt from those Taxes on a going-forward basis.
If a taxing jurisdiction determines that the Customer is not exempt from Taxes and assesses those taxes, the Customer shall pay those Taxes to SMSGlobal, plus any applicable interest or penalties. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE SMSGLOBAL REASONABLY COULD ACT.

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 the USA or overseas in connection with this agreement or the Services.
SMSGlobal is solely liable for all taxes on income and revenue, and any capital gains accrued or paid, in respect of the Services.

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 SMSGlobal under or in connection with this agreement:

the Customer must make the withholding or deduction; and
the amount of the payment to SMSGlobal must be increased by such additional amount as is necessary to ensure that the amount received and retained by SMSGlobal (after taking into account all deductions and withholdings on account of tax) is equal to the amount that SMSGlobal would have received had the payment in question not been subject to any deductions or withholdings.

12.1. SMSGlobal Intellectual Property Rights

SMSGlobal owns (or is the licensee of) all Intellectual Property Rights in:

the Web Tools and the SMSGlobal Systems;
all SMSGlobal 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

SMSGlobal acknowledges and agrees that, as between the parties, the Customer retains all Intellectual Property Rights in the Customer Data.
The Customer grants to SMSGlobal a non-exclusive, non-transferable, royalty-free license to use and reproduce the Customer Data solely for the purpose of enabling SMSGlobal to discharge its obligations under this agreement.

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:
1. for disclosures permitted under this clause 13; and
2. 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 SMSGlobal, to Suppliers as required by the terms of any agreements between SMSGlobal and those Suppliers; and
to persons who:
1. have a need to know for the purposes of this agreement (and only to the extent that each has a need to know); and
2. before disclosure:
  1. 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
  2. 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:
1. notify the Disclosing Party; and
2. 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.

Each 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:
1. the Privacy Laws and all guidelines issued by applicable privacy offices (and any similar regulatory bodies); and
2. the Privacy Policy;
must notify the other party immediately:
1. of any complaint from any person alleging a breach of the Privacy Laws;
2. 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
3. if it becomes aware that any disclosure of Personal Information may be required by Law;
cooperate with the other party in:
1. resolving any complaint alleging a breach of the Privacy Laws or any privacy statement regarding any Personal Information; and
2. providing access to any record of Personal Information following a request from an individual; and
take appropriate technical and organizational measures to prevent (to the extent reasonably practicable):
1. unauthorized or unlawful use or disclosure of; and
2. accidental loss or destruction of, or damage to,

Personal Information.

15.1. Use of Customer Data

SMSGlobal must not (and must ensure that its Personnel do not):

use Customer Data held by SMSGlobal, or to which SMSGlobal 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 SMSGlobal to:
1. disclose Customer Data to Suppliers in accordance with the terms of SMSGlobal's agreements with such Suppliers; and
2. comply with applicable Laws or the rules of any applicable stock exchange.

15.2. Safeguarding Customer Data

SMSGlobal will:

establish and maintain reasonable safeguards against the destruction, loss or alteration of Customer Data in the possession, custody or control of SMSGlobal; and
use its reasonable endeavors to protect the Customer Data from destruction, loss, alteration or security breaches while the Customer Data is stored in the SMSGlobal Systems.

The Customer warrants to SMSGlobal 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, licenses, authorizations and accreditations required for it to perform its obligations under this agreement; and
the performance of its obligations under this agreement will:
1. comply with all such rights, permits, licenses, authorizations and accreditations; and
2. not contravene any applicable Laws.

17.1. Exclusion of warranties

SMSGlobal 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, SMSGlobal's liability to the Customer for breach of any Non-excludable Condition is limited, at SMSGlobal's option, to:
1. in the case of goods, repair or replacement of the goods or payment of the cost of the repair or replacement; and
2. 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, SMSGlobal 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 17.4.2, but despite any other provision of this agreement, SMSGlobal'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 SMSGlobal 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:
1. contravene that statute; or
2. cause any part of this clause to be void.

The Customer indemnifies SMSGlobal 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 SMSGlobal 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 SMSGlobal notice in writing to that express effect.

19.2. Termination by SMSGlobal for convenience

SMSGlobal may terminate this agreement at any time for convenience by giving the Customer notice in writing to that express effect.

19.3. Termination by SMSGlobal for cause

SMSGlobal may terminate this agreement immediately by notice to the Customer if:

the Customer commits any breach of this agreement that is:
1. capable of remedy and the Customer fails to remedy the breach within 30 days after receiving written notice requiring it to do so; or
2. 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:
1. the Customer must:
1. 1. promptly return all materials, information and documentation provided to the Customer or the Sub Account Holders by SMSGlobal in connection with the Agreement;
  2. refrain from accessing or using any SMSGlobal 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 SMSGlobal Systems; and
1. SMSGlobal may:
1. 1. cancel the Customer’s Primary Account and all its Sub Accounts;
  2. terminate all means or modes of access and use of the SMSGlobal Systems by the Customer and its Personnel; and
  3. be regarded as discharged from any further obligations under this agreement.
Despite anything else in this agreement, the Customer acknowledges and agrees that SMSGlobal may keep a reasonable number of copies of:
1. the Customer's Confidential Information disclosed to SMSGlobal under this agreement; and
2. the Customer Data,

for record keeping and quality control purposes, to allow SMSGlobal to comply with all applicable Laws, and to otherwise fulfill the terms of SMSGlobal's agreements with Suppliers.

If SMSGlobal terminates this agreement in accordance with clause 19.2, all of the Customer’s and the Customer’s Sub Accounts’ SMSGlobal Credit shall be refunded.
If the Customer terminates this agreement in accordance with clause 19.1, all of SMSGlobal 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.

A party must not start legal proceedings (except proceedings seeking interlocutory relief) until that party has fully complied with the Complaints Handling Policy.

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 authorized by the sender; and
hand-delivered or sent by prepaid post or facsimile or email to:
1. in relation to the Customer, the Customer‘s address for Notices the specified in the Customer Request; and
2. in relation to SMSGlobal to the address specified to be SMSGlobal’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 the USA); 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

SMSGlobal may contact you from time to time to inform you of any company or product news, promotions and offers.

21.4. Notifications & Reminders

All MXT users will automatically be opted in to receive notifications for low credit balance and upcoming SMS credit expiry.

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.

22.2. Assignment

The Customer may only assign the Customer’s rights under this agreement with the prior written consent of SMSGlobal.
SMSGlobal 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 SMSGlobal 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.

22.6. Survival

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.

22.7. Severability

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.

22.8. Waiver

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.

22.9. Relationship

Except where this agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.

22.10. Test credits

Any remaining test credit will expire after users top-up their MXT account.

This agreement is governed by the laws of California, USA and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of California, USA.

24.1. Laws and Regulations

The Customer’s Messages must comply with any applicable Telephone Consumer Protection Act (TCPA), CTIA Messaging Principles and all applicable laws. The Customer will be solely responsible for the evaluation and qualification of the Customer’s actual and prospective Subscribers’ and/or end-users' use cases to ensure such use cases follow CTIA Messaging Principles.
When the Customer applies for Short Code, Standard Long Code, Toll-Free Long Code, and/or Ten-Digit Long Code services, they must provide accurate information.
End-users of A2P messaging must Opt-In to receiving such messages, and also be provided the opportunity to be able to unsubscribe or Opt-Out from the service.
SMSGlobal has a zero-tolerance policy on Spam, Junk-Messages or UM, and such messages are explicitly prohibited.
Any SMS message that does not comply with the TCPA, CTIA Messaging Principles and/or applicable laws constitutes a violation of these Terms and Conditions. SMSGlobal forgoes legal responsibility of the offending content and/or SMS use to the Customer who has issued said offending content and/or messages.

24.2. Availability

SMSGlobal provides Short Code, Standard Long Code, Toll-Free Long Code and Ten-Digit Long Code (10DLC) services within the USA and Canada.

24.3. Short Code

The following applies only if the Customer uses Short Code services. SMSGlobal offers Dedicated Short Code services to use in contract with the Customer, so long as:

The Customer provides accurate information to apply for a Dedicated Short Code and adhere to the application process, understanding that the application of a Dedicated Short Code takes 4-8 weeks minimum;
The Customer indicates how the Dedicated Short Code will be used as is required in the application. The Dedicated Short Code use case (for example, the Program) cannot change without first obtaining an amendment to the Customer application or re-applying to the carrier for approval of the short code under the new use; and
The Customer's use of SMS Programs will comply with applicable TCPA, CTIA Messaging Principles and/or any guidelines established from time to time by the Mobile Marketing Association.
Unless otherwise required by applicable Law, SMSGlobal, at our sole discretion, reserve the right to refuse to allow the Customer to use SMSGlobal service, Dedicated Short Code, if the Customer:
1. changes their short code use case (for example, the Program) approved by the telecommunications providers without first working with SMSGlobal to have the new short code use case approved by such telecommunications providers;
2. sends additional messages to any party that replies by texting “STOP” (or the equivalent) to the short code, except for sending a single text message confirming that such party has been successfully opted out of the short code; and
3. does not follow all applicable telecommunications provider rules with respect to the use of short codes, including, without limitation, telecommunications provider rules with respect to ensuring that each End User knowingly and explicitly opts in to receive messages from the short code prior to receiving any such messages.
Any short code application that the Customer submits (or that SMSGlobal submits on their behalf) needs to be approved by telecommunications providers. SMSGlobal does not have to refund any short-code related fees nor is SMSGlobal liable for anything else if the short code application gets rejected.
The Customer agrees that each short code application or request for a short code submitted by them or on their behalf by SMSGlobal (each, a “Short Code Application”) is subject to approval from the applicable telecommunications provider. SMSGlobal has no control over the telecommunications provider approval process for short codes and will bear no liability if a Short Code Application is rejected by a telecommunications provider.
Furthermore, if a telecommunications provider rejects a Short Code Application, then SMSGlobal have no obligation to refund any short code-related fees paid by the Customer to SMSGlobal prior to the telecommunications provider’s rejection of the Short Code Application.

24.4. Standard Long Code and Ten Digit Long Code (10DLC)

The following applies only if the Customer uses Standard Long Code and Ten Digit Long Code (10DLC) services. SMSGlobal offers Standard Long Code and Ten Digit Long Code (10DLC) services to use in contract with the Customer, so long as:

The Customer provides accurate information to apply for a Standard Long Code and Ten Digit Long Code (10DLC) and adhere to the application process;
The Customer indicates how the Standard Long Code and Ten Digit Long Code (10DLC) will be used as is required in the application. The Standard Long Code and Ten Digit Long Code (10DLC) use case (for example, the Program) should not change without first obtaining an amendment to the Customer application or re-applying to the carrier for approval of the number under the new use if necessary; and
The Customer's use of SMS Programs will comply with applicable TCPA, CTIA Messaging Principles and/or any guidelines established from time to time by the Mobile Marketing Association.
Unless otherwise required by applicable Law, SMSGlobal, at our sole discretion, reserve the right to refuse to allow the Customer to use SMSGlobal service, Standard Long Code and Ten Digit Long Code (10DLC), if the Customer:
1. sends additional messages to any party that replies by texting "STOP" (or the equivalent) to the short code, except for sending a single text message confirming that such party has been successfully opted out of the short code; and
2. does not follow all applicable telecommunications provider rules with respect to the use of Standard Long Code and Ten Digit Long Code (10DLC), including, without limitation, telecommunications provider rules with respect to ensuring that each End User knowingly and explicitly opts in to receive messages from the number prior to receiving any such messages.
Any Standard Long Code and Ten Digit Long Code (10DLC) application that the Customer submits (or that SMSGlobal submits on their behalf) needs to be approved before use and is subject to change.
All Ten Digit Long Code (10DLC) users must register brands and campaigns with TCR as of June 1, 2021.
1. Users must adhere to the telecommunications provider’s throughput and/or volume restrictions as per the specific SMS campaign and use case.
2. The 10DLC application process, registration requirements and associated fees are subject to change.

24.5. Toll-Free Numbers

The following applies only if the Customer uses Toll-Free Number services. SMSGlobal offers Toll-Free Number services to use in contract with the Customer, so long as:

The Customer provides accurate information to apply for a Toll-Free Number and adhere to the application process;
The Customer indicates how the Toll-Free Number will be used as is required in the application. The Toll-Free Number use case (for example, the Program) should not change without first obtaining an amendment to the Customer application or re-applying to the carrier for approval of the number under the new use if necessary; and
The Customer's use of SMS Programs will comply with applicable TCPA, CTIA Messaging Principles and/or any guidelines established from time to time by the Mobile Marketing Association.
Unless otherwise required by applicable Law, SMSGlobal, at our sole discretion, reserve the right to refuse to allow the Customer to use SMSGlobal service, Toll-Free Number, if the Customer:
1. sends additional messages to any party that replies by texting "STOP" (or the equivalent) to the short code, except for sending a single text message confirming that such party has been successfully opted out of the short code; and
2. does not follow all applicable telecommunications provider rules with respect to the use of Toll-Free Number, including, without limitation, telecommunications provider rules with respect to ensuring that each End User knowingly and explicitly opts in to receive messages from the number prior to receiving any such messages.
Any Toll-Free Number application that the Customer submits (or that SMSGlobal submits on their behalf) needs to be approved before use.

24.6. Porting

Existing Short Code, Standard Long Code, Toll-Free Long Code, and/or Ten-Digit Long Code services can be ported to a SMSGlobal account for SMS services.

Unless otherwise required by applicable Law, SMSGlobal, at our sole discretion, reserve the right to refuse to allow the Customer to port away any phone number ported into SMSGlobal or purchased through SMSGlobal.

All phone numbers are “locked” by default (for example, port-away requests will be disputed unless the Customer provides clear notice to SMSGlobal of the intent to port the number away from SMSGlobal) solely to prevent phone numbers from being ported away maliciously or mistakenly.
SMSGlobal may, at our sole discretion, allow the Customer to port away phone numbers that are purchased from us and allow the Customer to port away phone numbers that they port to us, provided that the Customer:
1. has a SMSGlobal account in good standing;
2. has either ported in or purchased the phone number more than ninety (90) days prior to the port-away date;
3. provide clear notice to SMSGlobal of intent to port the phone numbers away before execution of the port-away request; and
4. are in compliance with these Terms.
If SMSGlobal informs the Customer of a request to port a phone number away and the Customer has resold or reprovisioned that phone number to a third party, then the Customer agrees to promptly validate the port-away request with such third party. If such third party approves the port-away request, then the Customer agree to:
1. inform SMSGlobal of such third party’s approval for the port-away request, and
2. not take any action to prevent the execution of such port-away request.
If the Customer purchased a short code and ported it and use it with SMSGlobal’s services, they are the owner of the number, however, the Customer:
1. may not change how they use short code without getting approval for the new use from the telco provider who issued the short code;
2. may not send messages to anyone who opts out; and
3. needs to follow all short code rules that telco providers have when using short code.

SMSGlobal reserves the right to offer promotions, sales, discounts, and deals to the Customer from time to time, in accordance with the Terms and Conditions.

25.1. Validity

Promotions, deals, and offers that may be made available to the Customer by SMSGlobal from time to time are subject to change.

Promotions, deals, and offers are only valid and redeemable:

during the time period stated in the Terms and Conditions of the offer (see subclause 25.3. for specific promotion details); and
with pre-paid SMS credit payments through the SMSGlobal MXT platform;
unless stated otherwise.

25.2. Improper Use

SMSGlobal reserves the right to suspend or revoke an account if Terms And Conditions are not adhered to.

25.3. Disclaimer for promotions, deals and offers

All promotions, deals and offers made available by SMSGlobal to the Customer are subject to subclause 25.1 and 25.2.

Black Friday and Cyber Monday Promotion
1. Promo codes BONUS75 and FRIDAY75 are only valid for new customers.
2. Promo codes OPEN50 and FRIDAY50 are only valid for existing customers.
3. Promo codes are only valid on prepaid purchases based on default MXT tiered pricing (Freestyle, Flexi, Professional, Enterprise).
4. Offer expires at 11:59pm AEST on 30 November 2020.
5. Pre-paid SMS credits purchased via this promotion expire in 6 months of the purchase date.
6. This promotion is limited to AUD$75,000 or USD equivalent per transaction.
7. This promotion is limited to Australia and the United States of America. Enterprise Clients in the USA are not eligible.

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