1. Web portal
2. OZSMS application programming interfaces (API); and
3. any other tools specifically made available to the Customer by OZSMS 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

OZSMS will:

1. provide the Services to the Customer in accordance with this agreement; and
2. 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

1. Services means initially, the Messaging Services and any such other Additional Services as agreed between OZSMS and the Customer (where such agreement shall be evidenced by the Customer purchasing such Services using the Web Tools) from time to time.
2. For the avoidance of doubt:

1. 1. When you use the OZSMS 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 OZSMS once it has been transmitted from the OZSMS 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 OZSMS does not accept responsibility for any failure of, or delay in, the delivery of a Message to a Message Recipient provided that OZSMS 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, OZSMS 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. 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 OZSMS operating and security requirements and procedures relating to:

1. 1. • access to the Web Tools; and
      • the use of the Services,

(Including in respect of passwords and other security information) as displayed on the Website or otherwise notified to the Customer from time to time;

1. 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 OZSMS, a Supplier or any other client of OZSMS; or
      • any part of the OZSMS Systems or any Supplier’s systems, hardware, software or networks of a Supplier; and

1. 1. not introduce any Harmful Code into the OZSMS Systems or the systems, hardware, software or networks of any Supplier.

1. 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 OZSMS, in which case OZSMS may take such action as it considers appropriate (which may included changing the Customer’s passwords and other security information).

2.4. Continuity of Services & Suspension

1. Not with standing anything else in this agreement, OZSMS does not undertake, warrant or guarantee that the Services (including access to the Web Tools or other OZSMS Systems) will be uninterrupted, continuous or error free.
2. 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 OZSMS, including the systems hardware and software of any services provided by Suppliers (External Factors). Subject only to clause 17.4, OZSMS 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, OZSMS will use reasonable commercial endeavours to restore the Services to an operational state with the minimum practicable delay.
3. The Customer acknowledges that, from time to time:

1. • OZSMS will conduct routine and other maintenance on the Website and the OZSMS Systems; and
   • the Suppliers will conduct routine and other maintenance on their respective systems, hardware, software and networks, and the Customer agrees that, during the conduct of such maintenance, the Customer may not be able to access or use the Services.

1. The Customer acknowledges and agrees that OZSMS 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. • OZSMS wishes to repair, improve, and/or upgrade the underlying technology of the OZSMS Systems.
   • OZSMS access to any system, software, hardware, or network of any Supplier is suspended for any reason.
   • OZSMS is required to do so by any Governmental Agency or Supplier; or
   • for any other justifiable reason, including but not limited to, circumstances where the Customer (or the Customer’s Sub Account Nominees) in OZSMS opinion are in breach of this agreement, creating problems, possible legal liabilities, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons.

3. Customer’s obligations

3.1. Customer’s Primary Account

The Customer:

1. warrants that all information provided in the Customer Request and any other information provided to OZSMS in the course of using the OZSMS Systems is complete and accurate;
2. must keep the Customer’s Primary Account information current and accurate; and
3. 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:

1. 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
   • otherwise required in order to receive the benefit of the Services;

1. comply with all applicable Laws and industry codes and practices; and
2. comply with OZSMS directions, policies and procedures relating to the use of the OZSMS 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:

1. for sending any communication or Message which:

1. • is defamatory, abusive or of a vulgar, obscene or menacing nature;
   • is false, inaccurate, misleading or unlawful;
   • is invasive of a person’s privacy;
   • is hateful or racially, ethnically, or otherwise objectionable; or
   • OZSMS determines to be otherwise offensive or inappropriate;

1. for the persistent sending of Messages without a reasonable cause or for the purpose of causing annoyance, inconvenience or distress to any person;
2. in a way that contravenes:

1. • any applicable Law (including the Privacy Laws) or industry code or practice; or
   • any other rules or guidelines posted on the Website or otherwise notified to the Customer by OZSMS from time to time;

1. in any way that may have a detrimental effect on the goodwill or good standing of OZSMS or any Supplier;
2. in a way that may expose OZSMS or any Supplier to the risk of any legal or administrative action including prosecution under any Laws;
3. to transmit any communication or Messages that may harm a minor in any way;
4. to send unsolicited electronic commercial messages where the recipient has not consented to receive such messages;
5. to interfere with or disrupt OZSMS business, or the services, hardware, software or networks of any Supplier;
6. in a way that would infringe any person’s Intellectual Property Rights or other rights; or
7. 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).
8. Customer register for Business Name / Alpha tags for sending messages are subjected to
   • Approval of business name from OZSMS legal / account department.
   • Using a business name which customer is not owner of will be treated as legal violation and customer all consequences raised by actual owner of business name will be faced by customer.
   • Since July 2022, the Scam Code (Industry Code C661: 2022 Reducing Scam Calls and Scam SMs.) requires all Alpha Tags to be registered with your messaging provider. The aim is to prevent fraudulent usage of business names and improve the overall integrity of SMS communication.
   • Any business name / alpha tags assigned to sub accounts will be the responsibility of customer primary account.
   • Each alpha tag must be relevant to your business and/or use case, and must be registered with OZSMS before you can send. OZSMS requires evidence before approval of requested business / alpha tag
   • They can only be used for one way message use cases
   • They can only be sent once the feature is enabled on your account (contact your account manager)
   • Not all countries support alpha tags
   • Their maximum length is 11 characters, (consider abbreviating)
   • iPhones don’t support special characters, (hyphens or underscores will be stripped out)

3.4. Acceptable Use Policy

1. Without limiting clause 3.3, the Customer shall comply at all time with OZSMS Acceptable Use Policy.
2. Where OZSMS 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

1. 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);
   • must inform OZSMS as soon as possible if the Customer suspects or becomes aware of any unauthorised use of the Customer’s Primary Account or any related Sub Account; and
   • acknowledges and agrees that OZSMS 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.

1. The Customer acknowledges and agrees that, notwithstanding paragraph (a)(iii), OZSMS and the Suppliers may, in their absolute discretion, monitor the Messages transmitted using the OZSMS Systems.
2. 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:

1. on request by OZSMS from time to time, provide OZSMS with volume forecasts for the use of the Services and such other information that OZSMS may reasonably request concerning the Customer’s use of the Services; and
2. provide OZSMS with revised volume forecasts for its use of the Services if the Customer anticipates, from time to time, that there is likely to be a significant increase or decrease in its use of the Services.

4.Variation to this agreement

5. OZSMS reserves the right to modify this agreement at any time.
6. By using the Services, the Customer agrees that OZSMS 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.
7. The Customer must regularly check the Website to ensure that it is complying with the most current version of this agreement.
8. OZSMS will use its best endeavours to update the version reference at the head of this agreement following any amendments to its terms in accordance with this clause

5. Sub Accounts

5.1. Sub Accounts

1. Upon being requested to do so by the Customer in the manner designated by the OZSMS Systems, OZSMS may, in its absolute discretion, create one or more Accounts (each a Sub Account) that are linked to the Customer’s Primary Account.
2. Customer holding primary account will be responsible for all activities of sub account.
3. All clauses of this agreement will be applicable to the sub account linked to primary account.
4. The existence of a Sub Account does not of itself create a separate agreement for Services between OZSMS 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 OZSMS expressly agrees in writing otherwise, the Customer is responsible in all respects for a Sub Account (including the indemnity in favor of OZSMS 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

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

6. Message Costs and Message Costs Estimator

6.1. Applicable Message Costs

1. The Message Costs charged by OZSMS to the Customer will be at the applicable rates available at https://www.ozsms.net/pricing/
2. The Customer acknowledges that OZSMS may offer different pricing for Messages Services to different Customers based on membership or other categories from time to time.

6.2. Additional Services

Any Additional Services purchased by the Customer will be charged at the price shown to the Customer at the time of making the purchase using the OZSMS Systems.

7. Pre-payment and charging

7.1. Basis for charging

The Customer agrees that:

1. amounts paid by a Customer to OZSMS constitutes a purchase by the Customer of OZSMS Credit. The OZSMS 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;
2. 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);
3. 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
4. such amounts will be debited from the Customer’s Account Balance as soon as practicably possible following the purchase through the OZSMS Systems.

7.2. Account Balance must be in credit

At the time of purchasing Services using the OZSMS Systems, the Customer’s Account Balance must contain sufficient OZSMS Credit to cover the entire cost of that transaction. OZSMS will not allow a Customer’s Account Balance to go into debit.
Customer’s account / credit card will kept on deducting for the amount of services bought by OZSMS each month till the service / package is canceled by customer. The deduction date will be the date on which OZSMS service and package has been subscribed.

7.3. Nature of the OZSMS Credit

The Customer acknowledges and agrees that:

1. notwithstanding that the Customer’s OZSMS Credit is represented in the OZSMS 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 OZSMS except as is prescribed by Law or expressly prescribed by this agreement;
2. no trust or other fiduciary relationship exists between OZSMS and the Customer or any Sub Account Nominee;
3. OZSMS Credits are:

1. 1. not transferable from Customer to another Customer; and
   2. are transferable between a Customer and its Sub Account Nominee with the express consent of OZSMS.

7.4. Expiry of OZSMS Credit

OZSMS is prepaid service having per month packages. Once the package is renewed each month same day when services / package is subscribed all left over messages / credits in the account will be cancelled and new quota of package will be available for use.

8. Direct Debit Request Service Agreement

8.1. Authorization / direct debit

While subscribing to OZSMS services, The Customer authorize OZSMS  for funds to be debited from a nominated account with a financial institution (Direct Debit Transaction) on monthly bases till the service is cancelled by customer.

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

OZSMS debited the amount as a prepayment for the services. Filling direct debit form online / form (online, via email or a physical copy) is the confirmation from on the Customer’s completed Direct Debit Request prior to the Customer’s first Direct Debit Transaction.

8.3. Changes to direct debit

In case of card / bank account replacement changes, updated card / replacement of bank account will be done on customer’s web portal or by sending OZSMS updated information by any means having recorded evidence.

8.4. Cancelling a direct debit

1. OZSMS will stopped debiting amount automatically once the service is cancelled. However, charges deducted for a package as a prepayment will not be refunded.
2. Customer can send request to OZSMS to cancel the debit card via email or any other mean’s having recorded evidence.

8.5. Customer obligations

1. 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;
2. 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;
3. ensure that sufficient cleared funds are available for Direct Debit Transactions;
4. ensure it is aware of any fees chargeable by its financial institution for failed Direct Debit Transactions as it is responsible for these fees;
5. reimburse any fees incurred by OZSMS for failed Direct Debit Transactions due to insufficient clear funds being available in the nominated account;
6. arrange payment by another means of any outstanding amounts owed to OZSMS where a Direct Debit Transaction fails; and
7. inform OZSMS 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

OZSMS must ensure all information provided to it by the Customer in a Direct Debit Request online 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 OZSMS notice of its Complaint in accordance with the Complaints Handling Policy.

9.GST

9.1. Defined terms

In this clause 9, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.

9.2. GST inclusive amounts

For the purposes of this agreement, where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under this agreement, the amount or consideration will not be increased on account of any GST payable on that supply.

9.3. Consideration GST exclusive

Any consideration to be paid or provided for a supply made under or in connection with this agreement, unless specifically described in this agreement as GST inclusive, does not include an amount on account of GST.

9.4. Gross up of consideration

Despite any other provision in this agreement, if a party (Supplier) makes a supply under or in connection with this agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this agreement as GST inclusive):

1. the consideration payable or to be provided for that supply under this agreement but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and
2. the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.

9.5. Reimbursement (net down)

If a payment to a party under this agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.

10. Fees exclusive of Taxes

1. Except as otherwise specified in this agreement and subject to paragraph (b), the Fees and any other fees and charges payable by the Customer under this agreement are exclusive of all taxes, duties and charges imposed or levied in Australia or overseas in connection with this agreement or the Services.
2. OZSMS is solely liable for all taxes on income and revenue, and any capital gains accrued or paid, in respect of the Services.

11. Stamp duty and other Taxes

11.1. Stamp duty

Any stamp duty, duties or other taxes of a similar nature (including fines, penalties and interest) in connection with this agreement or any transaction contemplated by this agreement must be paid by the Customer.

11.2. Withholding tax

If a Law, or regulation pursuant to a Law, requires the Customer to deduct or withhold an amount on account of any tax from any payment to OZSMS under or in connection with this agreement:

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

12. Intellectual Property Rights

12.1. OZSMS Intellectual Property Rights

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

1. the Web Tools and the OZSMS Systems;
2. all OZSMS Pre-Existing IPR; and
3. 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

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

13. Confidential information

13.1. Use and disclosure

A Receiving Party:

1. may use Confidential Information of the Disclosing Party only for the purposes of this agreement; and
2. 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:

1. in the case of OZSMS, to Suppliers as required by the terms of any agreements between OZSMS and those Suppliers; and
2. 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:

1. 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
2. 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:

1. 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
2. notify the third person that the information is confidential to the Disclosing Party.

14. Privacy

Each party:

1. 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);
2. 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;
3. 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;
4. 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
5. take appropriate technical and organisational measures to prevent (to the extent reasonably practicable):
   1. unauthorised or unlawful use or disclosure of; and
   2. accidental loss or destruction of, or damage to,

Personal Information.

15. Data protection

15.1. Use of Customer Data

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

1. use Customer Data held by OZSMS, or to which OZSMS has access, other than for the purposes of fulfilling its obligations under this agreement; or
2. purport to sell, let for hire, assign rights in or otherwise dispose of any Customer Data, other than as required to enable OZSMS to:
   1. disclose Customer Data to Suppliers in accordance with the terms of OZSMS agreements with such Suppliers; and
   2. comply with applicable Laws or the rules of any applicable stock exchange.

16. Warranties

The Customer warrants to OZSMS that:

1. the Customer has the requisite power and authority to enter into this agreement and to carry out the obligations contemplated by this agreement;
2. the transmission of the Messages (or any of them) will not infringe the Intellectual Property Rights or other rights of any person;
3. the Customer holds (and will at all times continue to hold) all rights permits, licences, authorisations and accreditations required for it to perform its obligations under this agreement; and
4. the performance of its obligations under this agreement will:
   1. comply with all such rights, permits, licences, authorisations and accreditations; and
   2. not contravene any applicable Laws.

17. Exclusion of warranties and limited liability

17.1. Exclusion of warranties

1. OZSMS 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).
2. To the maximum extent permitted by law, OZSMS liability to the Customer for breach of any Non-excludable Condition is limited, at OZSMS 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 17.4.2, but despite any other provision of this agreement, OZSMS excludes all liability:

1. 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
2. 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.

18. Indemnity

The Customer indemnifies OZSMS 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 of this agreement by the Customer;
2. the use of the Customer’s Primary Account by the Customer or any third party;
3. the transmission of any Messages (including any Damages sustained or incurred by those indemnified in connection with complaints or Claims relating to any Messages);
4. any negligent or fraudulent act, error or omission on the part of the Customer, its Personnel or Message Recipients;
5. 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
6. any Claim by a third party (including any Supplier or Message Recipient) against OZSMS relating to the Services or the subject matter of this agreement.

19. Termination

19.1. Termination by the Customer for convenience

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

19.2. Termination by OZSMS for convenience

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

19.3. Termination by OZSMS for cause

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

1. 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;
2. the Customer ceases to be able to pay its debts as they become due;
3. 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;
4. any step is taken to enter into any arrangement between the Customer and its creditors;
5. 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;
6. the Customer disposes of the whole or part of its assets, operations or business other than in the ordinary course of business;
7. the Customer ceases to carry on business;
8. the Customer is a partnership, any step is taken to dissolve that partnership; or
9. 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

1. On termination of this agreement for any reason:

1. 1. the Customer must:

1. • • promptly return all materials, information and documentation provided to the Customer or the Sub Account Holders by OZSMS in connection with the Agreement;
     • refrain from accessing or using any OZSMS 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 OZSMS Systems; and

1. 1. OZSMS may:

1. • • cancel the Customer’s Primary Account and all its Sub Accounts;
     • terminate all means or modes of access and use of the OZSMS Systems by the Customer and its Personnel; and
     • be regarded as discharged from any further obligations under this agreement.

1. Despite anything else in this agreement, the Customer acknowledges and agrees that OZSMS may keep a reasonable number of copies of:

1. • the Customer’s Confidential Information disclosed to OZSMS under this agreement; and
   • the Customer Data,

for record keeping and quality control purposes, to allow OZSMS to comply with all applicable Laws, and to otherwise fulfil the terms of OZSMS agreements with Suppliers.

• If OZSMS terminates this agreement in accordance with clause 19.2, all of the Customer’s and the Customer’s Sub Accounts’ OZSMS Credit shall be refunded.
• If the Customer terminates this agreement in accordance with clause 19.1, all of OZSMS Credit credited to the Customer’s Primary Account and any related Sub Account shall be forfeited.

19.5. Accrued rights and remedies

Termination of this agreement will not prejudice any right of action or remedy which may have accrued to either party prior to such termination.

20. Complaint Handling

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

21. Notices and other communications

21.1. Service of notices

Except as otherwise provided under this agreement, a notice, demand, consent, approval or communication under this agreement (Notice) must be:

1. in writing, in English and signed by a person duly authorised by the sender; and
2. 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 OZSMS to the address specified to be OZSMS 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:

1. if hand delivered, on delivery;
2. 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);
3. if sent by prepaid post, on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia); or
4. 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

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

21.4. Notifications & Reminders

Customer main account email address and mobile number will automatically be opted in to receive notifications for low credit balance of SMS available through email / SMS or any other means.

22. Miscellaneous

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

1. The Customer may only assign the Customer’s rights under this agreement with the prior written consent of OZSMS.
2. OZSMS 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 OZSMS 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 paid account or after 15 days of trail account registration.

23.Governing law and jurisdiction

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

24. Promotional Deals and Offers

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

24.1. Validity

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

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

1. during the time period stated in the Terms and Conditions of the offer (see subclause 24.3. for specific promotion details); and
2. with pre-paid SMS credit payments through the OZSMS platform;
   unless stated otherwise.

24.2. Improper Use

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

24.3. Disclaimer for promotions, deals and offers

All promotions, deals and offers made available by OZSMS to the Customer are subject to subclause 24.1 and 24.2.

25. Voice Services on Dedicated virtual numbers

Please refer to voice service terms and conditions if you’re buying incoming and outgoing voice services on the dedicated numbers.