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Our Customer Terms 1300textus

1 Licence

1.1 Licence

(a) We grant you an exclusive, non-assignable (subject to clause 7.1) licence during the Term to use the 1300 TEXT US Phoneword on the terms of this agreement.

(b) You are responsible for ensuring that your use and marketing of the Licensed 1300 TEXT US Phoneword will not infringe the rights (including Intellectual Property Rights) of any person or legal entity.

(c) You acknowledge that third parties may own or use names, trade marks, brands or telephone numbers that are similar to or competitive with the 1300 TEXT US Phoneword.

1.2 Telecommunication Services

(a) Due to the nature of SMS / TEXT Messaging standards as operated by mobile carriers, your message delivery can not be guaranteed and therefore this service should not be used directly for life threatening applications.

(b) Acceptance of SMS / TEXT Messages is from Telstra and Optus mobile subscribers only. When other Mobile providers within Australia provide their subscribers with the ability to send SMS / TEXT Messages to 1300 TEXT US SMARTER 1300 will advise you.

(c) All information, advice or software is provided on an as is basis. SMARTER 1300 is not responsible for any losses resulting in its provision for use.

(d) SMARTER 1300 will endeavour to make the internet access available 24 hours a day 7 days a week. As the internet is constrained by several factors, SMARTER 1300 does not warrant that the service will be uninterrupted or error free.

2 Phoneword

2.1 Manner and form of use

(a) You must only use the 1300 TEXT US Phoneword image:

(i) as it is supplied only and not as a trade mark; and

(ii) in the form set out unless you obtain our prior written consent.

2.2 Preservation of our rights

You agree that:

(a) you have no rights to any trade mark which is, or incorporates, the 1300 TEXT US Phoneword and must not apply to register any such trade mark without written consent from us;

(b) we may license the 1300 TEXT US Phoneword, including as a trade mark which is, or incorporates, the 1300 TEXT US Phoneword, to other licensees or sublicensees after the Term;

(c) you must not challenge, in any manner, our rights or those of future licensees or sub-licensees to or in relation to:

(i) the 1300 TEXT US Phoneword

(d) you must not apply for or register a domain name, company name, business name or other trading name for, or which incorporates, the 1300 TEXT US Phoneword or is similar to or derived from the 1300 TEXT US Phoneword without our written consent;

(e) you must notify us of but must not take any action against any third party using any trade mark, company name, business name, domain name or other registration or application for, or which incorporates, the 1300 TEXT US Phoneword;

(f) you must not procure or assist a third party to do anything you have agreed not to do in this agreement; and

(g) your use of the 1300 TEXT US Phoneword is at your risk.

3 Fees and Payment

3.1 Initial payment

The initial payment becomes due and payable upon the date of this agreement becoming effective. Until payment is made, you have no right to use the 1300 TEXT US PhoneWord and we may terminate this agreement and license the 1300 TEXT US PhoneWord to another party.

3.2 Costs

You shall be liable for and shall promptly pay us:

(a) any legal costs incurred by us on a solicitor/client basis;

(b) any court, bailiff costs and service fees incurred by us; and

(c) any commission or fees paid to a debt collector or mercantile agent, in respect of any action, court or tribunal proceedings taken by or on behalf of us for the recovery of monies due by you to us pursuant to this agreement.

3.3 Fees & Costs

SMARTER 1300 reserves the right to change the Fees for the 1300 TEXT US service at its discretion.

3.4 GST

If we are liable to pay GST (as defined in GST Law) on a supply made in connection with this agreement then you agree to pay us an additional amount equal to the consideration payable for the supply multiplied by the prevailing GST rate. We will provide you with a Tax Invoice (as defined in GST Law).

4 Warranties and Indemnities

4.1 Our warranties

(a) We warrant that we are the Holder of the 1300 TEXT US Phonewords and are able to license the 1300 TEXT US Phonewords to you on the terms of this Agreement. We give no other representation, warranty or condition, express or implied, statutory or otherwise and, subject to clause 4.1(b), all such representations, warranties and conditions are excluded.

(b) Nothing in this agreement is intended to exclude, restrict or modify rights which either party may have under the Trade Practices Act 1974 (Cth) (TPA) or any other legislation which may not be excluded, restricted or modified by agreement.

4.2 Your warranties

You warrant that:

(a) you will comply with all laws, industry codes and regulations relating to the use of the 1300 TEXT US Phoneword; and

(b) your use of the 1300 TEXT US Phoneword will not infringe any rights (including Intellectual Property Rights) of any person or mislead or deceive, or be likely to mislead or deceive, other people or constitute passing off.

4.3 Our indemnity

Subject to clause 5, we indemnify you against any Loss (except Indirect Loss) suffered or incurred by you as a result of or in connection with a breach of our warranty in clause 4.1.

4.4 Your indemnity

(a) If a third party alleges or claims that your use of the 1300 TEXT US Phoneword, or any applications or registrations for the 1300 TEXT US Phoneword, infringes the rights (including Intellectual Property Rights) of that person or is misleading or deceptive, or is likely to mislead or deceive or constitutes passing off, it is your responsibility to obtain legal advice and resolve the matter with the third party.

(b)You indemnify us against any Loss suffered or incurred by us as a result of or in connection with:

(i) a breach of your warranty in clause 4.2; or

(ii) your use of the 1300 TEXT US Phoneword, or any applications or registrations for the 1300 TEXT US Phoneword, including Loss arising out of an allegation or claim by a third party that your use of the 1300 TEXT US Phoneword, or such registrations or applications, infringes the rights (including Intellectual Property Rights) of that person or is misleading or deceptive, or is likely to mislead or deceive or constitutes passing off.

5 Limitation of Liability

(a) In any single year of the Term (from 1 July to 30 June), our total aggregate liability to you for any Loss suffered by you during that year under this agreement or otherwise, is limited to the amount of the total Fees actually paid to us by you in that year.

(b) If any law implies any condition or warranty into this Agreement, and that law avoids or prohibits provisions excluding or modifying the operation of such condition or warranty, then to the extent permitted by law, our liability for any breach of such a condition or warranty is limited to, at our option:

(i) if the breach relates to goods, the repair or replacement of such goods or the supply of equivalent goods or the payment of the cost of repairing or replacing such goods or supplying equivalent goods; or

(ii) if the breach relates to services, the supply of the services again or the payment of the cost of having the services supplied again.

6 Term and Termination

6.1 Start and Term

The license granted under clause 1.1 commences on the Start Date and continues for the Initial Term or as renewed under clause 6.2 (.Renewal.).

6.2 Renewal

This agreement is renewed for an additional Term, when we receive payment for an additional Term.

6.3 Expiry

This Agreement will expire when there is no credit balance in your account, or on the 12 month anniversary of the current Term, whichever is the sooner.

6.4 Termination by us

We may terminate this agreement at any time by notice in writing to you if:

(a) you commit a breach of this agreement and do not rectify the breach within 14 days of being notified in writing of the breach by you;

(b) you become Insolvent; or

(c) a Regulatory Event occurs.

6.5 Termination by you

You may terminate this agreement by notice in writing to us if we commit a breach of this agreement and do not cure the breach within 30 days of being notified in writing of the breach by you.

6.6 Consequences of Termination

(a) If this agreement is terminated before the end of the then current Term for any reason other than under clause 6.4(c) or clause 6.5, we may charge you a cancellation fee which is equal to any outstanding Fees due for the remainder of the then current Term.

(b) Upon termination or expiry of this agreement, you must immediately, at your cost:

(i) cease all use of and reference to the 1300 TEXT US Phoneword (including as, or as part of, a trade mark, company name, business name, domain name or other trading name) including in any documents, labels, artwork, advertising or other material;

(ii) without limiting our other rights or remedies, if you have, in breach of this agreement, used the 1300 TEXT US Phoneword and/or applied to register, registered or otherwise hold any trade mark application or registration, domain name, company name, business name or other trading name for, or which incorporates, the 1300 TEXT US Phoneword, cease use of the 1300 TEXT US Phoneword and/or assign or transfer to us or cancel, at our option, such registrations or applications;

(iii) not market or promote the 1300 TEXT US Phoneword, or yourself in connection with the 1300 TEXT US Phoneword and take reasonable steps to inform your customers and other interested persons that you can no longer be contacted using the 1300 TEXT US Phoneword; and

(iv) execute all documents and do all things to give effect to the assignment, transfer or cancellation referred to in subclause (ii).

(c) Clauses 2, 3, 4.2, 4.4, 5, 6.6, 7.2(d) and 7.3 survive termination or expiration of this agreement.

7 General

7.1 Assignment

(a) Subject to clause 7.1(b), you may not assign, mortgage, charge or otherwise encumber your rights or obligations under this agreement to any other person without our prior written consent, which may be granted or withheld in our absolute discretion.

(b) Assignement of a 1300 TEXT US Phoneword by the Licensee to a third party can only be completed with the express written consent of Smarter 1300

(i) The third party assignee will be required to pay a transfer fee to Smarter1300 equivalent to three months Plan fee for that particular 1300 TEXT US Phoneword.

7.2 Sub-Licence

(a) Subject to clauses 7.2(b) and 7.2(c), you may sub-license your rights under this agreement to any other person.

(b) You must ensure that any sub-licence granted by you under clause 7.2(a) is consistent with the terms of this agreement, does not permit any further sublicensing by the sub-licensee, and terminates automatically on termination or expiry of this agreement.

(c) You must ensure that each sub-licensee complies with the terms of the sublicense agreement.

(d) You indemnify us against any Loss suffered or incurred by us as a result of or in connection with:

(i) the sub-licensee.s use of the 1300 TEXT US Phoneword (including as, or as part of, a name); or

(ii) any registrations or applications for the 1300 TEXT US Phoneword (including as, or as part of, a name), including Loss arising out of an allegation or claim by a third party that the sub-licensee.s use of the 1300 TEXT US Phoneword, or such registrations or applications, infringes the rights (including Intellectual Property Rights) of that person or is misleading or deceptive, or is likely to mislead or deceive or constitutes passing off.

7.3 Indemnities

The indemnities in this agreement are continuing obligations, independent from the other obligations of the parties under this agreement and continue after this agreement ends. It is not necessary for either party to incur expense or make payment before enforcing a right of indemnity under this agreement.

7.4 Confidentiality

We and You agree not to disclose information provided by the other under this agreement that is not publicly available (including the contents of this agreement) except:

(a) to any person in connection with an exercise of rights or a dealing with rights or obligations under this agreement;

(b) to your officers, employees, legal and other advisers and auditors;

(c) with consent of the other; or

(d) as allowed by any law or stock exchange.

7.5 Right to make changes

Any changes to this agreement must be agreed to in writing.

7.6 Governing law

(a) This agreement is governed by the law of Victoria, Australia.

(b) Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and appeal therefrom.

8 Definitions and interpretation

8.1 Definitions

These meanings apply unless the contrary intention appears:

Fee means the monthly Plan Fees, Establishment Fees and SMS / TEXT Message Costs

GST Law has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other Act or regulation relating to the imposition or administration of GST.

Indirect Loss means any Loss suffered or incurred by a party as a result of a breach of this agreement by the other party that may not fairly and reasonably be considered as arising naturally (ie according to the usual course of things) from the breach, even if such Loss:

(a) may reasonably be supposed to have been in the contemplation of the parties at the time of entry into this agreement as the probable result of that breach; or

(b) was in the actual contemplation of the parties at the time of entry into this agreement as the probable result of that breach.

Initial Term commences on the date which your payment has been accepted for the 1300 TEXT US Phoneword for which you applied. The initial term and additional terms is defined by you having a credit balance in your account for Pre paid Accounts. Credit balances are valid for a period of twelve months from payment date for Pre Paid Accounts. Pre Paid Accounts can be converted to monthly accounts as required.

For Monthly Accounts the Initial Term is twelve months, and each additional Term is twelve months. For Monthly Accounts Additional Terms will be automatically applied unless the Licensee advises Smarter 1300 in writing at least 30 days before the end of the Term that they wish to cancel their Account.

 

Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, trade marks, know-how, confidential information, patents, inventions and discoveries and all other rights (including moral rights) resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

A person is Insolvent if:

(a) it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act);

(b) it has had a controller (as defined in the Corporations Act) appointed or is in liquidation, in provisional liquidation, under administration or wound up or has had a receiver or receiver and manager appointed to any part of its property;

(c) it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved;

(d) an application or order has been made, resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above;

(e) it is taken (under section 459F(1) of the Corporations Act) to have failed to comply with a statutory demand;

(f) it is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act (or it makes a statement from which another party to this agreement reasonably deduces it is so subject);

(g) it is otherwise unable to pay its debts when they fall due; or

(h) something having a substantially similar effect to (a) to (g) happens in connection with that person under the law of any jurisdiction.

Phoneword means the 1300 TEXT US Phoneword specified in your application.

Regulatory Event means an event which results in us being unable, in our reasonable opinion, to continue to sub-license the Licensed Number to you on the terms of this agreement (such as a change in.

Start Date is the first day of the initial Term or subsequent Terms.

Term means the Initial Term and any additional term under clause 6.2 (.Renewal.), provided that the Term shall continue until and conclude upon termination or expiration of this agreement.

8.2 References to certain general terms

Unless the contrary intention appears, a reference in this agreement to:

(a) (variations or replacement) a document (including this agreement) includes any variation or replacement of it;

(b) (reference to statutes) a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(c) (law) law means common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and

consolidations, amendments, re-enactments or replacements of any of them);

(d) (singular includes plural) the singular includes the plural and vice versa;

(e) (person) the word .person. includes an individual, a firm, a body corporate, a partnership, joint venture, an unincorporated body or association or any government agency;

(f) (executors, administrators, successors) a particular person includes a reference to the person.s executors, administrators, successors, substitutes (including persons taking by novation) and assigns; and

(g) (meaning not limited) the words .include., .including., .for example. or .such as. are not used as, nor are they to be interpreted as, words of limitation, and, when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind.

9 Fair Usage Policy

The Smarter 1300 Fair Usage Policy is to ensure all eligible Smarter 1300 Customers are able to obtain complete benefits from our Products and Services. For this reason we have put the Policy which applies to usage that is excessive or unreasonable usage of our products and services in a manner that is unfair on the following products:

(a) 1300 TEXT US Capped Plans;

Smarter1300 considers Unreasonable Usage as the use of any product or service offered by Smarter 1300 to be fraudulent, or if the service is used for unauthorised, criminal or unlawful activities, or adversely affects other SMARTER 1300 Customers. use of Smarter 1300 Products and Services. Unreasonable usage also refers to seeking out newer ways or devising methods that are not a part of your normal business activity or any of our services being connected or associated with a device which alters its normal use. Smarter 1300 also considers Unreasonable Usage to the use of 1300 TEXT US in broad media campaigns beyond recommended usage by SMARTER 1300.

(b) Breach of Fair Usage Policy

In connection to the Fair Usage Policy for Unreasonable or Excessive Usage of all affected products and services, Smarter 1300 may contact you in relation to your use, and if the Unreasonable or Excessive Use continues, may: suspend or limit the service for a reasonable time frame and / or Smarter 1300 may start charging you at standard rates of a similar service for your usage and may then ask you to reduce your usage. Smarter 1300 may also deny access to our discounted or special capped plan rates, or terminate the Agreement with the concerned person or company.

 

 

 

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