Messaging Services and Messaging Gateway Material Terms of Use and Acceptable Use Policy

This Messaging Services and Messaging Gateway Material Terms of Use and Acceptable Use Policy (Acceptable Use Policy or AUP) describes the terms of use of the Services. The terms set out in this AUP supplement and are incorporated into your agreement with us (together, the Agreement). The terms set out in this AUP apply to any party (including the reseller as a user of the Service/s and the reseller’s customers or customers’ end customers (as relevant)) (you, your Customer/s) accessing or using the Service/s.

We may update this AUP from time to time by publishing the latest version online or by notice to you.

All capitalised terms not defined in this AUP have the meaning set out in the Agreement.

Nature of the Service/s

The Service/s are intended for use for sending:
- predominantly text-based or numeric-based, business and enterprise communications; and
- multimedia business and enterprise communications.
The Service/s are not intended as substitutes for two-way, public mobile telephone services. The Service/s do not support emergency calling or sending of emergency SMS Message.

Account Creation and Access to the Service/s

Creation of any account or adding capability for an account to access a specific Service is subject to the Customer providing, in a timely manner, any Customer Information requested in order to validate the Customer’s identity in order to provide the Service/s to the Customer.
In consideration of the Customer’s payment of any fees when due, and subject to the terms of the Agreement, access to the Service/s will be provided via an account accessible with unique user credentials for each of the Customer’s authorised account users, in each case solely for the Customer’s authorised account user’s own use.

Accounts are for use by unique Authorised account users only

Customer and each of the Customer’s authorised Customer account users must keep their login credentials strictly confidential.
Unique login credentials must not be shared between authorised account users.
Authorised account users must not share their login credentials with any unauthorised person.
Customer agrees to notify us immediately after becoming aware of any suspected unauthorised access to or use of its account.
Customer must take all reasonable steps to ensure that all such access to and use of the Service/s complies with the relevant Agreement.

Delivery of SMS Messages or MMS Messages to the intended recipient is not guaranteed

Delivery of SMS Messages or MMS Messages to the nominated message recipient is not guaranteed.
Delivery may be blocked or suspended by underlying service providers or by regulatory authorities without notice to us or to the Customer for reasons beyond our control.

Lawful Use

Customer must only use our Services for lawful purposes.
Customer must not use our Services to engage in or encourage, promote, facilitate or instruct others to engage in any activity that is illegal or otherwise breaches any applicable law or may cause us to do so. This includes:
- using the Services:
in violation of any data, privacy, spam or scam prevention, consumer protection or export controls laws;
unlawfully or in a manner that is suspected to be in breach of any applicable law;
in contravention of a relevant industry or government code;
in a manner where the Service may cause death, personal injury, damage and/or loss to property; or
in a manner where there is a threat or risk to the security of the Service or integrity of the network, including problems with the network; and
- sending any content that contains or transmits any virus, worms, malware, spyware, adware or such other malicious file or program.

Service Integrity and Security

Customer must not, whether intentionally or unintentionally, compromise the integrity of the Service/s or the Security of the Service/s or otherwise take action that damages or is likely to damage our business, brand or reputation. This includes:
- reverse engineering, copying, dissembling or decompiling the Services;
- interfering with or adversely impacting any aspect of the Services or any third-party networks that are linked to the Services, including attempts to disrupt, disable or overload the Service/s;
- scanning or testing the vulnerability of any systems or networks that hosts our Services;
- tampering with, hacking, circumventing any security or authentication measures, or attempting to gain unauthorised access to the Services, systems, networks or Data; and
- spoofing or denial of service attack on the Service/s.

Restricted Industries

To ensure compliance with laws applicable to our Service/s, we reserve the right to discontinue any user’s use of the Service/s if the Services are used in relation to any of these industries. Some industries include:

Adult services, including escort and dating services
Alcoholic beverages
Casinos
Cryptocurrency
Gambling products or services
Financial services
Multilevel marketing
Politics / political propaganda
Tobacco

Prohibited Countries

We reserve the right to exclude specified countries or territories for the purpose of either message origination or message termination, or both, from the agreed scope of Services at any time by notice in writing to the Customer.

Customer Obligations

Customer Responsibilities

Customer must:

be solely responsible for all use of the Services under any Customer Account;
be solely responsible for all acts, omissions, activities and use by itself (whether or not authorised by the Agreement);
be solely responsible for any violations of the Agreement by anyone using the Services with the Customer’s permission or using the Customer’s account on an unauthorised basis;
use commercially reasonable efforts to prevent unauthorized access to or use of the Services and promptly provide notifications of any unauthorized access or use; and
if requested to, provide all reasonable assistance to us to enable us to comply with our regulatory obligations, including under the Telecommunications Act 1997 (Cth) and any codes or standards in force under the Telecommunications Act 1997 (Cth); and obtain all regulatory approvals required in relation to the Services and to comply with all conditions attached to a regulatory approval, including termination of the provision of the Services.

Liability for use
The Customer is solely responsible for:

the destination, content, volume and timing of SMS Messages or MMS Messages that are sent using the Service by itself and its customers; and
the accuracy and quality of any Customer Information provided to us.
- Customer’s use of the Service/s in a manner inconsistent with the Agreement may give rise to direct claims against the Customer by law enforcement or regulatory authorities and or by third parties.

Use of Message Services

The Customer must not use the Services or permit the Services to be used to transmit Inappropriate Content.

“Inappropriate Content” means any Customer Information, Data or otherwise content that:

is unsolicited, including without limitation, “junk mail,” “bulk e-mail”, spam or other unsolicited advertising material and/or breaches any applicable Privacy Legislation or laws;
causes the introduction of “inappropriate applications”, “inappropriate URLs”, “viruses,” “worms,” “trojan horses,” “e-mail bombs,” “cancelbots” or other similar destructive computer programming routines into the Messaging Gateway, network or subscriber’s handsets or device;
that violates any law or legal, regulatory, governmental or Network Operator conditions or codes of practice, including content sent using a number without right of use or an AS ID without a valid use case;
is illegal, obscene, offensive, pornographic, threatening, defamatory, discriminatory, libellous, harassing, harmful, abusive, misleading, deceptive, inaccurate, is hateful or encourages hatred or violence against individuals or groups, is harmful to minors or otherwise objectionable, including content that constitutes misinformation or child sexual abuse material; or
infringes the intellectual property rights (including but not limited to copyright) of any person or entity or otherwise knowingly breaches the rights of any person or entity.

Compliance with Scam Code

The Customer must provide all reasonable assistance and information to us to enable us to comply with ‘Industry Code C661:2022: Reducing Scam and Scam SMs’ published by Communications Alliance Ltd (“Scam Code”).
If the Customer requires to use an AS ID with the provision of the Services, the Customer must have a valid use case for the AS ID requested, including the provision of relevant evidence to us (in a form determined by us from time to time).
If the Customer requests its own number be used for the provision of the Services (i.e. the SMS Messages or MMS Messages sent using the Services will originate via the number), the Customer must have rights of use of the number, and if requested, the Customer must provide us with evidence of that right of use (in a form determined by us from time to time).

Customer Data and Privacy

Customer must comply with the Privacy Legislation if the Customer collects, uses, stores, discloses, transfers or otherwise handles any Personal Information in connection with its use of the Services under the Agreement.
Customer understands that we have no obligation to monitor any SMS Message or MMS Message or the content of any SMS Message or MMS Message when transmitting the Customer’s SMS Messages or MMS Messages from the Messaging Gateway to the mobile network. However, the Customer agrees that we may either review, use or disclose the content or substance of such SMS Messages or MMS Messages transmitted as reasonably necessary to:
- comply with applicable laws and legal process;
- enforce the terms and conditions of the Agreement;
- diagnose or maintain the quality of the Service;
- respond to claims that the content of the SMS or MMS Message violates the rights of third parties; or
- protect the rights, property or personal safety of our users, or the public.
Customer must not use the Service for transmission of confidential or commercially sensitive information.
Customer must promptly notify us if the Customer suspects that a Data Incident has occurred, and work together with us to determine if the Data Breach constitutes an Eligible Data Breach.
Customer is solely responsible for notifying the affected individuals and the Australian Information Commissioner in accordance with the requirements of the Notifiable Data Breach scheme as set out in the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth) for any Data Incident notified to us that constitutes an Eligible Data Breach.

Proprietary Rights

Customer grants us and our group related entities the right to handle, use, store, transmit and otherwise process Customer Information and Data as necessary to provide the Services in a manner consistent with the Agreement.
Customer must ensure that:
- it has obtained all necessary rights, releases, consents and permissions, and provided the required notices and information in order to provide or have Customer Information provided to us; and
- our use and disclosure of the Customer Information under the Agreement (and its transfer to and/or use, collection, storage or disclosure by us, as contemplated by the Agreement) does not and will not violate any laws (including those relating to export control and electronic communications) or the rights of any third party, including any intellectual property rights, rights of privacy, or rights of publicity.

Carrier Terms and Conditions

The Customer represents that it is not, a “Carrier” or a “Carriage Service Provider”.

Definitions

For the purpose of this AUP, the following terms shall be defined as;

Alphanumeric Sender ID or AS ID means personalised identifier (eg. name of a business or organisation) instead of a number. This is displayed on the recipient’s device for a received SM in lieu of the number.
Carriage Service Provider has the same meaning as given to the corresponding term in the Telecommunications Act 1997 (Cth).
Carrier has the same meaning as given to the corresponding term in the Telecommunications Act 1997 (Cth) and includes but is not limited to Telstra, Optus and Vodafone but also includes an entity that operates a telecommunications network outside Australia.
Customer Information means the information, materials, logos, documents, qualifications and other intellectual property or Data provided by the Customer to us in connection with the Services, including Data.
Data Incident means any actual:
- breach of our obligations relating to protection of Data under the Agreement;
- unauthorised access to, or unauthorised disclosure of, any Data; or
- loss of Data, including where Data is damaged or corrupted so that it becomes unusable; or
- where, as determined by us, the access or disclosure is likely to result in serious harm to one or more individuals and us has not been able to prevent the likely risk of serious harm with remedial action.
Data means Personal Information that is supplied by (or on behalf of) the Customer to us in connection with the Services under the Agreement.
Messaging Gateway means the messaging servers and applications of Fujifilm DMS (and/or its related bodies corporate) as updated by Fujifilm DMS, in its sole discretion, from time to time, that provides the facility for submitting SMS Messages and MMS Messages for sending over interconnected mobile communications networks.
MMS Message means multimedia messaging service (MMS) messages sent via the Messaging Gateway to a mobile phone on a Network Operator’s network, which allow the exchange of multimedia content, including but not limited to text, images, audio, video and other digital media, between mobile devices or other compatible endpoints. MMS Messages may be subject to size limitations, network compatibility, and transmission protocols as defined by the relevant telecommunications laws.
Network Operator means any entity that owns, controls, operates, or manages a telecommunications network, or leases capacity from an owner or operator of a telecommunications network, including but not limited to mobile, fixed-line, broadband, or data transmission infrastructure, for the purpose of providing communication services to end users or third parties.
Personal Information has the meaning given to ‘personal data’, ‘personal information’ or ‘personally identifiable information’ by the Privacy Legislation.
Privacy Legislation means all applicable state, federal, and foreign privacy, information, security and data protection laws, codes and regulation that are appliable to the provision of the Services and as they apply to the parties in the context of their roles and responsibilities under the Agreement, including but not limited to the Privacy Act 1988 (Cth), Australian Privacy Principles, and California Consumer Privacy Act, in any case as may be amended, superseded or replaced from time to time.
Service/s means the messaging services provided by us. This includes, but is not limited to, SMS, MMS, and any related communication platforms, applications and software offered by us. Access to and use of these messaging services are subject to the terms and conditions outlined in this Acceptable Use Policy.
SMS Message means short text messages sent via the Messaging Gateway to a mobile phone on a Network Operator’s network.