Standard Terms

1. As a customer of BestSMS these standard terms form the basis of BestSMS's contract with you. Our contract with you also includes your application or order form, which you complete and provide to us. We may accept and rely on a facsimile copy of the application or order form as if it was an original. Our Contract with you also includes our currently applicable price list. The price list may change from time to time, but we will notify you of any changes when they happen. Copies of the price list are available from us, upon request.

2. We may amend these standard terms at any time. If we deem an amendment as material to you, we will communicate the amendment to you and we will endeavour to provide at least 30 days notice of any material amendments via written communication. We may interpret your ongoing use of our services after that date as constituting your acceptance of the amendments.

3. In this contract we use the terms "BestSMS", "we", "our", and "us" to refer to BestSMS and "you" and "your" to refer to the person, business or entity who is agreeing to these terms as our customer. Headings in this contract do not affect their interpretation.

4. These terms are to be interpreted in accordance with the laws of Australia. Any dispute regarding the provision of our services under these terms is to be determined by the Australian courts.

 

Our Commitment of service to you

5. Once you can connect to our network we aim to provide you with consistently reliable and good quality service. We do not guarantee that the service we provide will be perfect. When your connection is disrupted we will do our best to reinstate our service to you as soon as we can.

6. From time to time we will advise you about ways in which you can access our network.

7. BestSMS back ups are available at any time. You should contact us if you need any assistance in using any of our services. Service inquires can be directed to our Support Team between 9:00am and 5pm Monday to Friday:

Email: [email protected]

8. The service we supply to you will be supplied to you in whatever way we think is appropriate. We can choose the carriers used to provide our services and we can change the carriers at our discretion.

9. Note that we may record calls you make to us to verify information and for staff training purposes.

 

Your general responsibilities

10. You agree that you will:

a) pay for all goods and services we provide to you, regardless of whether it is you who uses them. Our charges quoted will normally be exclusive of GST and GST will be added to them;

b) pay each bill by the due date for payment set out in it. If you do not, we may charge you interest at a rate we specify and which is equivalent to our bank overdraft interest rate plus 2% per annum on the overdue amount from the due date until payment of the relevant amount. You are also liable for any Debt Collection fees;

c) advise us immediately if you have a genuine dispute in relation to amounts we have charged you and pay the undisputed charges. If you do so you must give us full details of the reason you are disputing the charges and you must give us evidence of the grounds for your dispute. We will look into the issue and you will comply with our good faith decision on the issue;

d) ensure that all of the information you give us is correct and complete;

e) that we can act on any verbal instructions you give us in relation to the services;

f) keep confidential any password or PIN number which is used by you to access our services;

g) ensure products and/or services are not used for resale to a third party unless the appropriate Reseller Agreement has been completed;

h) comply with any legal requirements concerning or using our services;

i) comply with any requirements of any other carrier in relation to the use of its network;

j) make sure everyone you are responsible for also meets these responsibilities;

k) do everything necessary to enable us to use and take over responsibility for your telephone and facsimile numbers, e-mail addresses and any other relevant mediums to the extent necessary or desirable to enable us to provide our service to you;

l) provide reasonable access for our employees and contractors and representatives authorised by us or any other carrier to carry out any work required for the commencement, operation and continuance of our service to you, and the maintenance of our network or the network of any other carrier. We will normally carry out this work by appointment and during normal working hours. If we ask to perform the work at any other time you are not obliged to provide us with the access we require;

m) if required by us, pay us a bond or provide us with other comfort of your ability to pay our charges. If you pay us a bond it will not accrue interest and we will repay it to you when our contract ends, provided you have paid us everything you owe us at that time;

n) grant permission to use your company's name and logo in our marketing materials in relation to this service, identifying your company as a customer.

 

Suspension or disconnection

11. If you do not meet any of your responsibilities under this contract we may suspend or disconnect you from our network. We may also discontinue any other service we provide to you. In that situation we may also terminate our contract with you.

12. We may also suspend or disconnect you from our network if a carrier suspends or interrupts its service to us and that suspension or interruption affects our ability to provide our services to you.

13. We may also suspend or restrict a service in an emergency or whenever we, another carrier, or any other appropriate person considers that step necessary or reasonable to protect persons, systems or other property.

14. If you are suspended or disconnected from our network for failing to meet any of your responsibilities under this contract you may have to pay a recommencement fee before you can use our network again.

15. Usually the normal charge, as outlined in our price list, will continue to apply during your suspension or disconnection from our network.

Compensation and liability

16. If you are a Australia residential customer, you may have rights under the Consumer Guarantees Act 1993 in addition to the rights set out above. If, however, you receive goods or services from us for the purposes of a business, then you agree that the Consumer Guarantees Act 1993 will not apply to this contract or any of our business dealings.

17. If our service fails to operate for any reason and you use a service provided by another carrier, we will not be responsible for that carrier's service charges.

18. We also exclude all other liability we may have to you for acts or omissions by us, our directors, employees, agents, representatives and contractors. This includes both direct and indirect losses, including loss of profits, loss of revenue and loss of any opportunity. These exclusions of liability also apply under the Contract and Commercial Law Act 2017 for the benefit of any other carrier who allows us to use its network to provide our service to you.

19. To the extent permitted by law, none of the persons referred to in the preceding paragraph are liable to you or has to pay you for anything else caused by or resulting from anything any of them does or does not do, or delays in doing, whether or not it is contemplated or authorised by these standard terms.

20. This exclusion of liability applies whether or not our contract with you has ended and regardless of the type of damage you suffer or howsoever it was caused. If you are a Australian residential customer, these exclusions do not affect any rights you may have under the Consumer Guarantees Act 1993.

21. You hereby indemnify and shall keep indemnified, BestSMS against all loss, damage, liability and expense of whatsoever nature incurred or suffered by BestSMS as a result of any claim made or proceedings instituted against BestSMS by a third party and arising out of the use of our services by the Customer.

 

Limitation of Liability

22. To the extent permitted by law if, despite the provisions contained in the previous section, we or any other carrier is liable to you for any breach of these standard terms, or for breach of any other obligation that might be owed to you, our liability shall be limited, at our discretion, to any one or more of the following:

If the breach relates to the provision of service:

- supplying of the relevant service again; or

- payment of the cost of having the relevant services supplied again; and

If the breach relates to goods;

- replacement of the relevant goods or supply of equivalent goods;

- repair of the relevant goods;

- payment of the cost of replacing the relevant goods or of acquiring equivalent goods; or

- payment of the cost of having the relevant goods repaired.

23. If you are a Australian residential customer this limitation does not affect any rights you may have under the Consumer Guarantees Act 1993.

 

Personal Information

24. You understand and agree to abide by our Privacy Policy.

25. You may decide to withhold any information we request from you or erase any information we hold on you. Should this result in our inability to perform our obligations under this contract and inability to provide our service to you, you agree to indemnify us of any ensuing liability.

26. We may use the information we hold about you and may exchange information about you with our contractors, agents and representatives, with other carriers, and with credit reporting and debt collection agencies for the purposes of our business. We will not pass Personal Information on to irrelevant and/or undeserving parties.

27. Information held by us is available to be corrected, exported or erased under our Privacy Policy.

 

Telephone Numbers

28. We will allocate telephone and other identification numbers for you to use depending on the kinds of services you want. Wherever possible, you will be able to choose from a range of available numbers.

29. If we need to change your number we will give you as much notice of the change as we can.

 

Other Terms

30. Other terms may apply to some of the services provided by us to you. We will tell you about the terms that apply in those circumstances.

 

Invoices and notices

31. We will deliver our invoices and any other notices to the most recent address that you have given us. We may assume that any such invoice or notice has been delivered five days after we have posted it or twenty four hours after it has been sent by facsimile or e-mail. Please ensure that you inform us when you change your address.

32. Messaging products will be invoiced monthly. Fixed charges are payable in advance. Usage based charges (SMS transactions) are payable in arrears.

33. Product purchases will be invoiced at the time of supply.

 

Product returns and refunds

34. With regard to product purchases refunds will be given at the discretion of the Company Management.

35. Accounts that have no charges for a period of 12 months or greater will be considered inactive and closed. Any unused credit will expire and is non-refundable.

 

Assignment and delegation

36. We may assign or transfer our rights and responsibilities under this contract to someone else. We will give you written notice in advance if we intend to do this.

37. We may also subcontract the performance of any of our responsibilities under this contract to anyone else.

38. You may not assign or transfer any of your rights or responsibilities under this contract to anyone else without our prior written consent.

 

Terms separately binding

39. If, for any reason, any provisions of this contract cannot be enforced or relied on by either of us, all other terms of our contract with you remain binding.

 

Term and Termination

40. If you do not pay any of the invoices we send to you or you otherwise fail to meet your responsibilities to us we may end our contract with you. We may also end our contract by giving you one month's written notice. Ending the contract between us in this way shall not release you from any outstanding obligations or responsibilities you owe to us.

41. If you want to end the contract between us;

b) email us at [email protected]; and/or

c) complete the ‘Cancel Account’ form in your BestSMS Web Dashboard (requires Account administrator access).

Our agreement will end and all charges will cease 30 days after you give us notice that you wish to end this contract provided you have paid us in full all outstanding amounts due. If for any reason we delay in exercising our rights that will not mean we have waived or given up our right.

 

Excessive or Fraudulent Usage

42. We reserve the right to suspend services immediately and withdraw funds immediately, however possible, if:

a) use of services is deemed excessive (unless usage is previously notified or negotiated in a timely manner); or

b) use of services appears fraudulent or out of the ordinary.

"Excessive" is defined as "more than normal or necessary to conduct standard business practice" and can apply where the cost of providing a service to you greatly outweighs the benefits, at our discretion. "Ordinary" is defined as "commonplace or standard when compared to an average BestSMS customer". "Fraudulent" is defined as "with the intent to obtain a goal using deception or criminal deception".

43. Excessive or fraudulent use charges may apply immediately at our discretion. These charges are to be decided by us where applicable. We reserve the right to withdraw funds to cover these charges immediately, without consent by you. We agree to notify you immediately where charges apply.

44. Price offerings or structures may be altered immediately at our discretion. We agree to notify you immediately where price offerings are adjusted.

45. You reserve the right to dispute any additional charges or suspension made under clause 41, 42 or 43. We agree to be fair and compromising, reinstating services without reconnection charges and refunding any excessive or fraudulent use charges where we believe we are incorrect in assumption.

 

SPAM Act and Compliance

46. You must comply with relevant Spam Acts, including Australia's "Spam Act 2003".

47. Prior to sending messages you must obtain consent from the message recipient. Details of the consent (including the date consent was obtained and the type of messages the recipient consented to) must be recorded and retained for a period of no less than two (2) years from the date the message was submitted for delivery so that you can supply this to regulatory bodies upon request.

48. Failing to comply with clause 46 and clause 47 may cause clause 21 and clause 10 (g) to apply and BestSMS may suspend or terminate your services with immediate effect.

 

Send On Behalf Of

49. With regard to applicable services provided by BestSMS; some customers are given the right to "send on behalf of". BestSMS takes no responsibility for legal or illegal misuse of this feature, relating particularly, but not limited to, the use or manipulation of the "Sender ID" and/or "Originator", "Caller Line ID", "Display SMS Number" fields, along with any further information our customer and/or sub-customer provides when signing up and during use of our service. With regard to any services whereby you can impersonate the sender, you acknowledge that you have permission of the owner to do so. If you are in breach of this document, we advise that clause 21 and clause 10 (g) apply and that BestSMS may suspend or terminate your services with immediate effect. Clauses 41, 42, 43 and 44 may also come into effect.

 

Force Majeure

50. Neither party (us or you) is liable to the other (liabilities include delays or failures to perform respective obligations, cost, liability, loss, damage or expense) where the delay or failure is caused by an event beyond that party's reasonable control (a "Force Majeure Event"), which includes:

a) forces of nature or acts of God (including fire, earthquake, flood, landslide and weather of exceptional severity) or an epidemic, or national or local emergency (whether in fact or law or undeclared); and

b) public mains electrical supply failures; and

c) industrial disputes (provided that the party relying on the Force Majeure Event has taken reasonable preventative actions); and

d) technology faults (including third party hardware failure, third party software failure, computer viruses and DDoS attacks).

51. In the case of a Force Majeure Event, parties must give timely notice of changes in circumstances (including cessation) via written communication.