Conditions of Use & Privacy

PART 1

We may alter these terms and conditions at any time.  Your acceptance of the varied Conditions will be indicated by Your continued use of the Web App.

  1. General

 You may access and use this Web App on the Conditions set out below and on the Web App for the purpose of using SMS Cards and joining our Referral Program.

    1. The information provided on the Web App is not a personal professional advice and you not regard it as a substitute for that advice.  It is your responsibility to seek relevant professional advice including legal, accounting and financial prior to and while using the Web App, the SMS Card and/or joining our Referrer Program.
  1. Interpretation
    1. In these Conditions, unless the context required otherwise, the following terms shall have the following meanings:-
      1. “Conditions” means the terms and conditions contained in this document;
      2. “Material” means the information in whatever form put onto the web site by You;
      3. “Private Use” has the meaning given to that term in clause 5.1
      4. “Referrer” means a person who has subscribed to be an Referrer of SMS Cards and agreed to participate in the Referral Program.
      5. “SMS Card” means the electronic SMS Card which can be created by you using the Web App once you become a Subscriber;
      6. “Subscriber” means a person who has created a log in on the Web App and created an SMS Card;
      7. “Subscription Fees” means the monthly fees payable by you for the continued use of the SMS Card;
      8. “Us”, “We”, “Our” means SMS Cards Pty Ltd A.C.N. 616 451 720 and Our officers, employees, contractors and agents;
      9. “You”, “Your” or any grammatical derivation of this means the creator of the Subscriber name and password provided to create a login account on Our Web App;
      10. “Web App” means the software, the website smscards.world, the SMS Card and any other website owned and managed by Us, but not including any third party websites;
    2. These Conditions are governed by the law of South Australia and the parties submit to the non-exclusive jurisdiction of the courts of that state.
    1. In the interpretation of these Conditions:
      1. References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
      2. Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to SMS Card or agreements also mean those SMS Card or agreements as changed, novated or replaced, and words denoting one gender include all genders;

Grammatical forms of defined words or phrases have corresponding meanings;

      1. Parties must perform their obligations on the dates and times fixed by reference to South Australia;
      2. Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
      3. If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
      4. References to a party are intended to bind their executors, administrators and permitted transferees;
      5. Obligations under these Conditions affecting more than one party bind them jointly and each of them severally.
  1. Availability of service
    1. We do not guarantee that this Web App will be accessible by You at all times as We rely on communications links and networks over which We have no control.  However, We will use Our best endeavours to have the Web App network running continuously.
    2. We do not warrant that Your access to the Web App and your SMS Card will be uninterrupted, timely, secure or error free.
    3. Access to the Web App may be suspended either with or without notice should We need to maintain or repair the Web App or there is a system failure.
    4. We have the right to change or discontinue the Web App, the SMS Card and any price, service or feature found on it at any time.
  1. Accuracy of Information
    1. You cannot use the SMS Card unless You are a Subscriber. 
    2. As a Subscriber You warrant that any information You put onto the Web App is:-
      1. Complete and accurate
      2. Up to date
      3. not misleading
      4. that You are authorised to put the information on the Web App
      5. not defamatory
      6. not prohibited by law
    3. As a Subscriber, You must chose a secure password and not disclose it to anybody. You will indemnify Us for any claim, expense, loss or damage that We suffer as a result of unauthorised access to the Web App using Your login details.
  2. Privacy and Data Protection requirements
    1. The Web App is for Your Private Use only.  This means that You must not without our written consent use the Web App, your login details or the SMS Card for any commercial purpose including on-selling, licensing or otherwise dealing with them.
    2. You must not use the Web App:-
      1. For any unlawful purpose
      2. To undertake any activity that would breach the privacy of any person including the Privacy Act 1988 (Cth) even if that Act does not apply to You
      3. To undertake any activity that be considered to constitute spamming or would breach the Spam Act 2003 (Cth)
      4. To impersonate any person or entity
      5. To solicit any money, personal information, passwords,
      6. To cause offence or harm any person or to harass or bully any person,
      7. To defame a person,
      8. To conduct surveys, contests, pyramid schemes or chain letters on the Web App,
      9. To introduce any form of malicious software into Web App, or
      10.  To collect information about using the Web App without their consent.

 

    1. You must not allow other people to use the Web App through Your login.
    2. You consent to Us contacting You through the Web App.
    3. Information that You enter into the SMS Card may include personal information about You or third parties.  We will not use that information other than as set out in this document without first de-personalising it.
    4. We will use your personal information such as your name, phone number, address, and email address to enable us to send information or process additional information at other times, including but not limited to, when you provide feedback, change your content or email preferences, respond to a survey, or communicate with Us for support/queries.
    5. We will use your personal information if required to do so by law.  If we sell the business, disclosure of your personal information may be necessary in the negotiation stage.  In that case, we will ensure that there is a non-disclosure agreement in place to protect your information.
    6. We do not and will not sell or deal in personal or customer information. We will never disclose your personal details to a third party except the necessary information required by providers of products or services you have purchased; or to protect the rights, property or safety of the Web App or Software, our customers or third parties or if required by law.
    7. We may however use in a general sense without any reference to your name, your information to create marketing statistics, identify Subscriber demands and to assist it in meeting customer needs generally. In addition, we may use the information that you provide to improve the Web App and our services but not for any other use.
    8. You consent to our Using your SMS card for the purposes of marketing and demonstration purposes.
  1. Subscription Fees
    1. Subscription Fees are payable monthly in advance.  The current monthly Subscription Fee and a payment gateway can be found on the Web App.  This is the only way that you can pay your Subscription Fee.
    2. Upon payment of Your monthly Subscription Fee, You will be able to access and use your SMS Card.
    3. You will not be allowed to use the SMS Card if Your Subscription is not current.
    4. You authorise us to charge the credit or debit card that you supplied for your Subscription on a monthly basis.  If we are unable to charge that credit or debit card, you must provide us with the details of another credit or debit card, or pay the amount by some other manner that We agree to.
    5. In addition to the Subscription Fee, we will pass on all the charges associated with the recovery of the debt including any debt collection or legal costs on an indemnity basis.
    6. You can cancel your subscription at anytime through the Web App.  We will not refund any unused portion of your Subscription.
    7. On cancellation of your SMS card for any reason, your data and information will be deleted from our servers.
    8. Software Requirements

       We do not warrant that the Web App and the SMS Card can be used with every internet enabled device.  You may need to update your device to ensure continued access to your SMS Card and the Web App.
  2. Intellectual Property
    1. SMS Cards Warrants that it has the right to use the Web App and the SMS Card in the manner contemplated by this agreement.  .
    1. We may have used some open source or third party library software on the Web App.  To the extent that the terms of the open source software license or third party library software license expressly overrides these terms, those terms will apply.

 

  1. Browser Data
    1. You acknowledge that we use and retain browser data to track your use of the Web App and your SMS Card.
  1. Personal Information & Confidential Information
    1. We and you, including employees and contractors, agree not to disclose your Personal to third parties; to use all reasonable endeavours to protect your personal information from any unauthorised disclosure; and only to use your personal information for the purpose for which it was disclosed by you and not for any other purpose.
    2. These obligations do not apply to personal Information or to any personal information or confidential information that:-
      1. Is authorised to be disclosed;
      2. is in the public domain and/or is no longer confidential, except as a result of breach of these Terms and Conditions;
      3. is received from a third party, except where there has been a breach of confidence; or
      4. must be disclosed by law or by a regulatory authority including under subpoena.
    3. The obligations under this clause will survive termination of your Subscription.
  2. Third Party Websites
    1. The Web App may contain links to third party websites.  These third party websites do not form part of the Web App and You acknowledge that We have no control over or responsibility for those websites.
    2. When You leave the Web App through a link to a third party website You do so entirely at Your own risk.  We disclaim all responsibility for the accuracy or reliability of the website or the services or information that may be contained on that third party website.  We will not be liable to You for any direct or indirect loss or damage that You may suffer as a result of accessing or relying on such third party websites.
    3. Display advertising on the Web App whether or not such advertising contains a link to a third party website does not mean that We endorse or recommend the service or product being advertised.
  3. Cancellation by Us
    1. If We believe that you are acting contrary to the spirit of the Web App, or are using the Web App or the SMS Card other than for your Private Use or if you are using it for commercial gain or in a manner which could damage our business or reputation, we reserve the right to cancel Your Subscription.
    2. If We cancel your Subscription we will be under no obligation to refund any money paid by you to Us.
  4. Liability
    1. To the extent permitted by law, We exclude all express or implied representations, conditions, warranties and terms relating to the Web App and the SMS Card except to the extent set out in these Conditions.
    2. We will not be liable to You or anyone else for any claim, expense, loss or damage You may suffer or incur at all as a consequence of using the Web App, the SMS Card, or any third party Web App including for any that claim, expense, loss or damage is direct, indirect, consequential or incidental.
    3. To the extent We are not able to exclude Our liability, Our total liability to You for any loss or damage You may suffer or incur will be limited to the re-supply of SMS Card for a period of six months or at Our option to Us refunding the amount You have paid Us for the services in the previous 6 month period.

 

  1. Miscellaneous
    1. You indemnify Us against any claim, expense, loss or damage whatever incurred by Us directly or indirectly, as a result of a breach by You, or other person or corporation using or relying on the Web App and your SMS Card if Your login has been used.
    2. You cannot assign Your rights and obligations under these Conditions.
    3. You warrant that You have relied entirely Your own enquiries in Subscribing to the Web App and no oral or written communication by Us.
    4. Any provision of these Conditions which is unlawful and unenforceable will be severed and the remainder of the provisions will remain in force.
    5. Any notice or other communication to You or Us must be in writing and delivered by email to the email address last notified and that email it will be treated as received when it enters the recipient’s information system.

PART 2

REFERRERS  -  This section is for Referrers only.

This part of the Agreement contains the complete terms and conditions that apply if you participate in the Referral Program.

  1. Definitions
    1. Unless a term is redefined or if the context does not so allow, the definitions set out above in Part 1 above apply in this Part 2.
    2. As used in this Agreement, “we”, “us”, “SMS Cards” means SMS Cards Pty Ltd and “you”, “your” or “Referrer” means the Referrer.
    3. “month” means the period of one calendar month commencing on the first day of the month.
    4. “Referrer” means a person who has agreed to participate in the Referral Program.
    5. “Referral Program” means the program managed by or on behalf of us by which a Referrer can earn a Referral Fee or commission on sale on the terms set out in this Agreement.
    6.  “Qualifying Subscription” mean a SMS Card Subscription purchased by a Subscriber from a link in your SMS Card.
    7. The terms “Referral Fee” used in this Agreement mean moneys earned by, payable to, or previously paid to the Referrer by us from Qualifying Subscription under the terms of this Agreement and the Referral Program.

 

  1. Term
    1. This Agreement will begin upon our acceptance of your application to join the Referral Program and payment of the Service Fee.
    2. The term of this Agreement shall be for a period of one (1) year from the date of acceptance.
    3. The term shall automatically renew for successive one (1) year terms unless either Party gives thirty (30) days notice to the other that it intends not to renew the Agreement at the end of the then current term.
  2. Service Fees
    1. Referrer will pay an annual Service Fee to participate in the Referral Program.  The amount of the current service fee is set out in the Web App.
    2. Upon payment of your annual Service Fee, you will be entitled to participate in the Referral Program.
    3. The Service Fee will change on 1 July in each year of the term.  We will not change your Service Fee until you renew your Agreement.

 

  1. Forbidden Actions
    1. This Agreement will be terminated without notice if, in its sole discretion, SMS Cards determines that the Referrer has breached any or all of the following explicitly prohibited actions.
      THE REFERRER WILL FORFEIT ANY ACCUMULATED EARNINGS IF THE AGREEMENT IS TERMINATED UNDER THIS PROVISION.
      1. Referrer shall not, either directly or indirectly, act, encourage or require users to click on links to SMS Cards and/or generate SMS Cards through any means that could be reasonably interpreted as coercive, incentivized, misleading, malicious, or otherwise fraudulent.
      2. Referrer shall not use SMS Cards to receive Referral Fees from the Purchase of their own SMS Cards.
  1. Referral Fees
    1. SMS Cards will pay you a Referral Fee for each Qualifying Subscription. The Rate of the Referral Fee is set out on the Web App.
    2. You are eligible to earn a Referral Fee at the rate set out in the table if and only if a Subscriber who makes a Qualifying Subscription maintains their SMS Card Subscription for two or more months.
    3. No Referral Fee is payable where there are less than five Qualifying Subscriptions in a month.  You acknowledge that not all subscriptions are Qualifying Subscriptions. The limit of what is a Qualifying Subscription is set out in the Web App.

 

    1. You acknowledge that we will store the identification of Qualifying Purchasers against your subscription in the Referral Program and that this information will be used to calculate the Referral Fee.  To maintain the privacy of the subscriber, this information will not be made available to you.
  1. Reporting
    1. We will provide reports of Qualifying Subscriptions for which a Referral Fee will be paid to you on the Web App. 
    2. Payments will be in accordance with reports made available on the Web App.
  2. Payments
    1. Referral Fees will be paid on or about the 15th of each month to the bank account nominated by the Referrer.
    2. The Referrer warrants that the bank account is owned by them.
    3. Referrer shall be responsible for all taxes associated with the receipt of any payments.
    4. We will be responsible for taxes associated with the supply of any goods or services under this agreement.
  3. Representations and Warranties;

Limitation of Liability

    1. EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING
      1. THE AMOUNT OF SALES THAT SMS CARDS MAY GENERATE DURING THE TERM, AND
      2. ANY ECONOMIC OR OTHER BENEFIT THAT YOU MIGHT OBTAIN THROUGH YOUR PARTICIPATION IN TH REFERRAL PAROGRAM.
    2. SMS CARDS WILL NOT BE LIABLE TO THE REFERRER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF THIS AGREEMENT.
    3. SMS CARDS ENTIRE LIABILITY ARISING FROM THIS AGREEMENT WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE AMOUNT OF THE THEN CURRENT ADMINISTRATION FEE PAID BY YOU.
  1.  Customer Ownership
    1. Customers who Subscribe for a SMS Card whether or not through the Referral Program will be customers of SMS Cards.
    2. The Referrer acknowledges that to protect the privacy of SMS Cards’ customers, the names of and other personally identifying information about customers will not be provided to you.
    3. All information about customers and users collected by Us Business shall be owned solely and exclusively by Us.
  2.  Browser Data & Cookies
    1. You acknowledge that We will use browser data and cookies which originate from the link sent by you to people who make Qualifying Purchases from You to track customers for whom Referral Fees may be payable.
  3. Indemnification
    1. You agree to indemnify, defend and hold harmless us and our Referrers, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable legal fees) relating to a breach of your obligations under this Agreement.
  4. Termination Without Cause
    1. Either party may terminate this Agreement without cause on thirty (30) days prior notice.
    2. We reserve the right to change any of the terms and conditions in this Agreement, including the payment terms, by posting a new agreement on the Web App.  Such change to the Agreement will become effective not less than 30 days from the date of posting onto the Web App.  It is your responsibility to check current terms and conditions.
  5. Termination For Cause:
    1. We may terminate this Agreement on seven (7) days notice if in our sole discretion we determine that you have breached the terms and conditions of this Agreement. You will forfeit any accumulated earnings if agreement is terminated for cause.
  6. General Provisions
    1. Each party enters this Agreement as independent contractors, and nothing will be construed to create a partnership, agency, joint venture or employment relationship between you and us.
    2. Each party will comply with all applicable laws, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction in the performance of this agreement. Without limiting the generality of the foregoing, you and we each will pay, collect and remit such taxes as may be imposed with respect to any compensation, royalties or transactions under this Agreement.
    3. Neither party will be considered to be in breach of, or default under, this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond our respective reasonable control. If any force majeure event occurs, the affected party will give prompt written to the other and will use commercially reasonable efforts to minimize the impact of the event.
    4. You may not assign your rights under this Agreement, in whole or in part.
    5. The failure of either you or us to enforce any provision of this Agreement will not constitute a waiver of the right to subsequently enforce the provision. Any remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.
This Agreement represents the entire Agreement between you and us with respect to the subject matter hereof and supersedes any other oral or written agreements regarding such subject matter, and may be amended or modified only by a written instrument signed by a duly authorized agent of each party.
If any provision of this Agreement will be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement will not be affected and will remain in full force and effect.