Aggregated Data means anonymously aggregated information or data (including statistical information and data sets relating to customer usage profiles, purchasing behaviours and patterns) derived or generated in connection with the provision of the Services;
Agreement means these General Terms, applicable Product Terms and the Statement of Work;
Business Day means a day that is not a Saturday, Sunday, national public holiday or national bank holiday in the place within Australia where the Services are being provided;
Claim means any claim, demand, action, proceeding or legal process (including by way of set off, cross-claim or counterclaim);
Client is the party to whom MessageNet is supplying the Services;
Client Materials means:
- (a) all text, data, images, documents, reports, logos, trademarks, copy, electronic files, proofs, designs, product descriptions and other materials, whether electronic or in hard copy form, submitted to MessageNet by or on behalf of the Client for the purposes of providing the Services, and
- (b) any information or data that is imported by or on behalf of the Client in connection with the provision of the Services or the Client’s use of technology services hosted by or on behalf of MessageNet;
Confidential Information of a party (or a Related Body Corporate of a party), regardless of its form and whether the other party becomes aware of it before or after the date of this Agreement, means:
- (a) information that is by its nature confidential to that party;
- (b) information treated or designated as confidential by that party;
- (c) information the other party knows, or ought to know, is confidential to that party;
and includes but is not limited to: (i) legal, financial and business information; (ii) business plans, models, processes, trade secrets, reports and market projections; (iii) names of existing and potential customers and partners; (iv) customer information and data; (v) proposed business deals and contract arrangements; (vi) accounting and management information systems; and (vii) all technologies owned or being developed by a party or in which a party has an interest;
but does not include information:
- (a) lawfully in the public domain or which enters the public domain other than as a result of a breach of this Agreement;
- (b) already known to the other party free of any obligation to keep it confidential; or
- (c) proven beyond a reasonable doubt to have been independently developed by the other party without use, directly or indirectly of Confidential Information.
End User means a person who receives a Message you send using your Account, and a person who sends you a Message via your Account;
Fees means the service fees payable by the Client as may be specified in the SOW;
Force Majeure means any event or circumstances beyond a party’s control, including: acts of God, strikes, lockouts, third party service provider failures, telecommunications or equipment failures, network faults, power or water outages, unscheduled maintenance and repair or legislative changes;
GDPR means the General Data Protection Regulation (Regulation (EU) 2016/6790);
General Terms means these general terms which are applicable to all of the Services being supplied;
Insolvency Protection Stay has the meaning given to that term in clause 11.6;
Intellectual Property includes copyright, and all rights conferred under statute, common law or equity in relation to inventions (including patents), trademarks, designs, circuit layouts, domain names, rights in databases, confidential information, trade secrets, know-how, and all other proprietary rights, whether registered or unregistered, and all equivalent rights and forms of protection anywhere in the world, together with all right, interest or licence in or to any of the foregoing;
Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in the jurisdiction in which the Services are being supplied or which is otherwise applicable to the provision of the Services;
Master Services Agreement (MSA) means a formal agreement executed by an authorized representative of each party setting out the terms and conditions upon which the Services will be supplied, if any;
Message means an SMS, MMS or OTT Message;
MessageNet means MessageNet Pty Ltd ABN 97 082 712 589;
MessageNet Affiliate means a Related Body Corporate of MessageNet;
MMS means a message including text and/or multimedia content carried by the multimedia messaging service, whether it originates or terminates on a mobile phone or another kind of computer;
Model Clauses means the standard contractual clauses for transfers from data controllers in the EEA to data processors outside the EEA set out in the Commission Decision 2010/87/EU, dated 5th February 2010, entered into between the Client and MessageNet, as set out in Part C of this Agreement;
OTT Message means an instant message that uses the internet for transmission;
Personal Information has the meaning as defined in the Privacy Laws from time to time;
Privacy Laws means:
- (a) the Privacy Act 1988 (Cth) and the Australian Privacy Principles contained in that Act, as amended from time to time;
- (b) legislation in force in any jurisdiction and affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of data (to the extent that such legislation applies to MessageNet or the Client); and
- (c) any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under such instruments, as amended from time to time;
Product Terms means any unique service terms applicable to the Services being supplied, as provided by MessageNet to Client, including the Digital Marketing Product Terms;
Related Body Corporate has the meaning given to it in section 50 of the Corporations Act 2001 (Cth);
Services means the services and any deliverables set out in the SOW and any further services agreed in writing between the parties;
SMS means a text message carried by the short message service that was originally developed for use on the GSM mobile telephone network, whether it originates or terminates on a mobile phone or another kind of computer;
Statement of Work (SOW) means a document setting out service requirements and the commercial terms including fees and pricing, set out in a quotation, proposal, client brief, order or a statement of work, as the case may be;
Term means the term specified in the SOW, including any renewals.
2. Terms of Service
2.1 Upon acceptance by MessageNet of an order or the execution by both parties of a SOW, an individual contract for the supply of Services will be formed incorporate these General Terms and any applicable Product Terms.
2.2 If there is any conflict of meaning between information contained in the documents which form part of the Agreement, the order of precedence will be as follows:
- (a) the Statement of Work;
- (b) the Product Terms;
- (c) the General Terms.
2.3 MessageNet may make commercially reasonable changes to the General Terms and the Product Terms (together the “Terms of Service”) from time to time. The Client will remain governed by the Terms of Service in effect on the Agreement commencement date until the end of the then-current term. If the Agreement is renewed, it will be renewed under MessageNet’s then current Terms of Service.
3. Fees and Pricing
3.1 In the event of an increase in the costs of providing the Services, including without limitation the imposition of a new direct or indirect tax or impost, legislative change (including changes that directly impact minimum employee entitlements and employer obligations), exchange rate fluctuations or supplier cost increase, MessageNet reserves the right to review and request a variation to the Fees to take into account the impact of such changes.
3.2 In addition to clause 3.1, MessageNet may review and adjust its Fees and charges (including its freight rates) for any Services, once each year on or after each anniversary of the date from which those Services are first provided with reference to the Consumer Price Index (All Groups Weighted Average of eight capital cities) as published by the Australian Bureau of Statistics. Any Fee increase will be limited to the percentage increase during the immediately preceding year or 2%, whichever is the greater.
3.3 The Fees cover work set out in a SOW. Any change to a SOW pursuant to clause 14 (Change Request) may lead to an adjustment in the Fees.
3.4 The parties will negotiate in good faith any variation to the Fees and in the event that they are unable to agree on the amount of a variation pursuant to clause 3.1, then either party may terminate the relevant SOW(s) by providing the other party with 90 days written notice.
4. Payment terms
4.1 Payment terms are granted subject to the Client’s successful application for commercial credit. The Client acknowledges and agrees that in granting credit MessageNet reserves the right to:
- (a) withdraw or suspend credit at any time in its sole discretion;
- (b) charge interest at the rate of 1.5% per calendar month on all overdue amounts;
- (c) recover any expenses incurred in recovering outstanding monies; and
- (d) collect, disclose and exchange Personal Information for the purposes of assessing the credit worthiness of the Client or any Client guarantor.
Where payment terms have not been approved or have been withdrawn or suspended, then the provision of Services will be subject to payment upfront.
4.2 In consideration for the provision of the Services, subject to clauses 4.1 and 4.3, the Client must pay the Fees for the full amount invoiced without set off or deduction within 30 days of the date of invoice unless the relevant Product Terms provide otherwise.
4.3 If the Client wishes to dispute an invoice, it must notify MessageNet promptly upon becoming aware of the circumstances giving rise to the dispute. Payment of an invoice or failure by the Client to dispute an invoice prior to the due date for payment will not prejudice the Client’s right to raise a valid invoice dispute. The Client may dispute an invoice for up to 12 months form the date of invoice. The Client must pay any undisputed portion of the invoice in accordance with clause 4.2.
4.4 If an undisputed invoice is not paid when due MessageNet may, in its sole discretion, suspend supply of the Services.
4.5 The Client acknowledges and agrees that invoices must be paid to MessageNet unless a different MessageNet Affiliate is stipulated in the SOW.
4.6 Where an invoice is paid by credit card, the payment will incur a credit card payment surcharge.
4.7 All pricing is exclusive of goods and services tax (“GST”). MessageNet reserves the right to recover from the Client all GST payable in respect of the supply of Services to the Client.
4.8 Any credits granted to the Client are valid for a period of 6 months from the date of grant and must be used within that timeframe. Any monies held on account for the Client will be held for a period of 6 months, after which time those amounts will be converted to a credit held in favour of the Client.
5.1 Each of the parties warrants to the other that:
- (a) it has full power and authority to enter into and perform the Agreement;
- (b) it shall comply and shall ensure that its employees and agents comply, with any Law; and
- (c) it has or will acquire all Intellectual Property rights needed to perform its obligations under the Agreement.
5.2 The Client warrants that:
- (a) it will not do, and it will not direct or request MessageNet to do, anything which may breach any Law or applicable industry code;
- (b) it will make any decisions and provide any approvals, data, documentation and information reasonably required by MessageNet, promptly;
- (c) it will carry out any tasks assigned to it and its agents or contractors in a timely manner and in such a way as to not delay MessageNet in the provision of the Services;
- (d) the Client Materials:
- (i) do not contain any matter which is obscene, defamatory or illegal;
- (ii) are not false, misleading or deceptive or likely to mislead or deceive;
- (iii) are up to date, technically accurate, complete and correctly formatted for any distribution or sue by MessageNet in the provision of the Services;
- (iv) are free from viruses and do not contain malware, spyware or any other code which could alter or disrupt any program, product, service or device;
- (e) the use of the Client Materials by MessageNet for the purposes of providing the Services and all matters incidental thereto will not breach any Law or infringe the Intellectual Property rights or other rights of any person or entity; and
- (f) it will pay to MessageNet any additional costs incurred by MessageNet in converting or processing Client Materials which are not in compliance with this clause 5.2.
5.3 MessageNet warrants that it will:
- (a) use commercially reasonable endeavours to ensure that the Services:
- (i) are free from material defects in design, materials and workmanship;
- (ii) are provided substantially in accordance with any specification set out in a SOW; and
- (iii) are carried out in accordance with the lawful instructions and directions of the Client;
- (b) only store and use Client Materials:
- (i) to the extent necessary to provide the Services to the Client (and any back-ups for those Services)
- (ii) to the extent necessary to perform its obligations or enforce its rights under this Agreement; and
- (iii) where required or authorised by Law;
- (c) implement reasonable and appropriate information security practices regarding the protection of Client Materials as required by Law, including administrative, technical and physical security processes.
5.4 To the extent that the law permits and except as expressly provided in the relevant Product Terms, MessageNet makes no other representations or warranties of any kind, express or implied, with respect to the Services.
5.5 The Client acknowledges and agrees that:
- (a) MessageNet makes no guarantee regarding the results, outcomes or profitability of any Services or any campaigns conducted or provided by MessageNet for or on behalf of the Client; and
- (b) the Client remains liable and responsible for any loss or damage suffered or incurred by MessageNet (including the provision of compensation to any third party carriers) in connection with MessageNet’s use of the Client Materials in accordance with the Agreement.
6.1 If a party is provided with, or has access to, Personal Information in connection with the Services, it must comply with the Privacy Laws and any other applicable law in respect of that Personal Information. Neither party must do anything (or omit to do anything) that causes the other party to fail to comply with its obligations under Privacy Laws. Nothing in this Agreement must be treated as preventing any party from taking the steps it reasonably considers necessary to comply with Privacy Laws.
6.2 If Personal Information is provided to MessageNet by or on behalf of the Client, then the Client:
- (a) must do all things necessary, including but not limited to: (i) obtaining all appropriate consents from individuals; (ii) providing notifications to individuals; and (iii) maintaining accurate, up to date and complete records; to ensure that MessageNet may lawfully use, process and disclose the Personal Information (and any changes made to any of them) in connection with the provision of the Services;
- (b) acknowledges and agrees that except as may be required by this Agreement, MessageNet is not required to take steps to ensure that any Personal Information has been collected in accordance with the Privacy Laws;
- (c) must do all things reasonably requested by MessageNet to assist MessageNet to comply with the Privacy Laws in the course of its provision of the Services under this Agreement including: (i) assisting MessageNet in the updating of an individual’s records in circumstances where an individual elects to “opt out” and not receive direct marketing materials and services; (ii) providing MessageNet with access to information held by the Client in respect of an individual when the individual makes a request for such access; and (iii) providing MessageNet with the policies and procedures the Client has put into effect pursuant to the Privacy Laws if requested to do so by MessageNet.
6.4 If MessageNet processes any Personal Information in the name of or on behalf of the Client:
- (a) the Client acknowledges and agrees that the Personal Information may be disclosed or stored outside Australia in order to provide the Services. The Client consents for MessageNet to receive, share and disclose Personal Information arising from use of the Services with telecommunication or other providers used in conjunction with the Services, or as may be required by Law;
- (b) MessageNet shall process the Personal Information in accordance with this Agreement and any lawful instructions reasonably given by the Client from time to time; and
- (c) each party shall take appropriate security and organizational measures against unauthorised or unlawful processing of the Personal Information or its accidental loss, destruction or damage.
6.5 Where MessageNet has reasonable grounds to believe that there has been unauthorised loss, alteration, or disclosure of, or access to, any Personal Information of the Client that is in MessageNet’s custody or control in connection with the provision of the Services (“Privacy Incident”) MessageNet shall notify the Client promptly and without unreasonable delay. Each party shall take all appropriate action necessary to identify, remedy or mitigate the effects of the Privacy Incident and shall provide each other with such information as the other may reasonably require to ensure that any obligations under the Privacy Laws (including, if applicable, mandatory notification requirements) are met.
6.7 If the Services or the performance of the respective obligations of the parties under this Agreement involve the processing of any personal data (as defined in the GDPR) of, or the sending of any Messages to, any individuals in the European Union, then each party agrees to comply with the terms set out in Parts B and C of this Agreement.
7. Intellectual Property
Except as expressly provided:
7.1 Nothing in this Agreement conveys to either party any right, title or interest in the other party’s pre-existing Intellectual Property.
7.2 Intellectual Property in all items, information, materials, and works (including software developments and enhancements, modifications to applications or data insights) developed or produced by MessageNet in connection with the provision of the Services will be the sole and exclusive property of MessageNet.
7.3 Rights in Intellectual Property owned by MessageNet remain at all times the sole and exclusive property of MessageNet and no licence of these rights is granted to the Client except a right to use the same to the extent required for the Client’s enjoyment of the Services.
7.4 Rights in third party Intellectual Property licensed or procured by MessageNet in connection with the provision of the Service remain at all times the sole and exclusive property of that third party and no licence of these rights is granted to the Client except a right to use the same during the Term to the extent required for the Client’s enjoyment of the Services, subject always to any third party end user terms and payment of any applicable third party licence fees.
7.5 All Intellectual Property rights in the Client Materials remain at all times the sole and exclusive property of the Client and no licence of these rights is granted to MessageNet except for a right to use and reproduce the same for the purposes of providing the Services or as may be otherwise specified in the Agreement.
8. Confidential Information
8.1 A party (the “receiving party”) who obtains the Confidential Information of the other party (the “disclosing party”) in connection with the Services or this Agreement, shall, and shall ensure that its officers, employees and agents, keep the Confidential Information of the disclosing party confidential and not use or disclose the Confidential Information to any third party other than:
- (a) in confidence to the receiving party’s professional advisers to obtain professional advice;
- (b) as may be properly required for the purpose of the provision of the Services and the performance of any obligations under the Agreement but subject to any such person being made aware of, and undertaking to comply with, the obligations in relation to the Confidential Information as set out in this Agreement;
- (c) with the consent of the disclosing party; or
- (d) as may be required by any Law, the rules of any stock exchange under which a party is listed or any court of competent jurisdiction.
8.2 Upon termination or expiration of this Agreement, the receiving party must cease using the Confidential Information of the disclosing party and subject to clause 8.3, destroy or return the Confidential Information and if requested by the disclosing party, certify in writing that the Confidential Information and all copies of the Confidential Information in the receiving party’s possession or control has been destroyed or returned.
8.3 The receiving party: (i) will not be required to destroy copies made as party of the receiving party’s normal back up and disaster recovery policies and procedures and which cannot be reasonably deleted (which copies will be destroyed in the normal course pursuant to such policies); and (ii) will be entitled to retain any documents which need to be retained by the receiving party for legal record purposes. The parties acknowledge and agree that any Confidential Information which is retained pursuant to parts (i) and (ii) will be held and kept confidential by the receiving party in accordance with the terms and conditions of this Agreement.
8.4 Each party acknowledges that in the event of any alleged breach of this clause 8, damages may not be an adequate remedy and the disclosing party will be entitled to seek equitable relief in the nature of specific performance and injunctive relief, in addition to damages.
9.1 Each party (the “indemnifying party”) will, at its expense, defend or settle any third-party claim against the other party (the “indemnified party”) caused by the indemnifying party’s failure to comply with the warranty in clause 5.1(c), to the extent such claim results in liability, damages, and costs (including reasonable legal costs) to the indemnified party. The indemnifying party will pay (in relation to such claim) any:
- (a) negotiated settlement amounts (to the extent the indemnifying party is permitted to settle); or
- (b) damages, fines or penalties finally awarded by a court or regulatory authority, to the extent directly attributable to the indemnifying party’s conduct.
9.2 The indemnifying party will have no obligations or liability under clause 9.1 to the extent such claim arises from:
- (a) the indemnified party’s use of any Intellectual Property of the indemnifying party in a modified form not approved by the indemnifying party in writing or in combination with materials not furnished by the indemnifying party;
- (b) the indemnifying party’s use of materials, data or information provided by the indemnifying party in a way that breaches any Laws or this Agreement;
- (c) any act or omission of the indemnified party that impedes or prevents the indemnifying party’s ability to comply with its obligations under this Agreement.
9.3 A party’s indemnity obligations are conditional upon the indemnified party (to the extent permitted by Law):
- (a) giving prompt written notice of the claim;
- (b) permitting the indemnifying party to have full and complete control over the defence and settlement of the claim;
- (c) providing assistance in connection with the defence and settlement of the claim as the indemnifying party may reasonably request; and
- (d) complying with any settlement or court order made in connection with the claim (eg. relating to the future use of any infringing materials).
9.4 To the extent permitted by Law, the remedies in clause 9.1 are the sole and exclusive remedies and the indemnifying party’s sole liability regarding the subject matter giving rise to any such claim.
10. Limitation of liability
10.1 To the extent that any Law (including the Competition and Consumer Act 2010 (Cth)) implies certain non-excludable conditions, guarantees or warranties into the Agreement, MessageNet limits its liability in relation to those non-excludable conditions, guarantees or warranties to the supplying of the Services again or the payment of the costs of having the Services supplied again.
10.2 Except as otherwise provided in the Agreement, the maximum aggregate liability of a party to the other party for any damages, losses, claims and expenses arising out of or in connection with this Agreement, whether in contract, tort (including negligence), under product liability legislation, under any other statute, under any indemnity or otherwise, shall be limited to the equivalent of twelve times the average monthly Fees payable by the Client to MessageNet specified in the SOW under which the liability arose.
10.3 In no event shall either party be liable for any incidental, indirect, punitive, exemplary or consequential damages or any loss of any of the following – profit, revenue, goodwill, bargain, anticipated savings, use of products or equipment, software, data or management time, incurred or awarded against the other party under or in any way connected with this Agreement.
10.4 The client acknowledges that MessageNet does not control the transfer of data over communications facilities, including the Internet, and that the Services may be subject to limitations, delays and security issues inherent in the use of such communications facilities (“service limitations”). MessageNet is not responsible for any delays, service level failures or data breaches caused by such service limitations including: corruption, piracy or malicious third party attacks (including DDoS attacks), which are beyond the reasonable control of MessageNet. The Client expressly waives any claim against MessageNet for compensation, service credits, damages or loss of data arising from the service limitations and agrees their occurrence will not constitute a breach of this Agreement.
10.5 The liability of a party is reduced proportionately to the extent to which the liability is caused, or contributed to, by the other party and each party must do what is reasonable in the circumstances to mitigate and minimise any costs, damages, expenses and/or losses incurred or suffered by it in connection with any claim under the Agreement.
10.6 The limitations of liability in this clause 10 shall not apply where prohibited by applicable law, but shall be restricted only to the minimum extent required to satisfy that law.
11.1 Either party may terminate the Agreement without prejudice to its other remedies by notice in writing to the other (the “Defaulter”):
- (a) if the Defaulter commits a material breach of the Agreement (which shall include payment default by the Client) and the Defaulter has not remedied the breach within 30 days of having been given notice in writing specifying the breach and requiring it to be remedied; or
- (b) if the Defaulter is or becomes insolvent or bankrupt, becomes an externally-administered body corporate under the Corporations Act 2001 or steps are taken by any person towards external administration (except for so long as an Insolvency Protection Stay applies).
11.2 On termination of the Agreement:
- (a) the Client’s right to use the Services ceases;
- (b) except for Fees that are the subject of a genuine dispute notified to MessageNet in accordance with clause 4.3, the Client must immediately pay to MessageNet, without deduction or set off, all outstanding Fees and any other amounts payable to MessageNet under the Agreement at the date of termination; and
- (c) MessageNet will, upon Client request and subject to clause 11.3, return any proprietary information or data of the Client (“Client Data”) generated in connection with the Services and/or stored on MessageNet systems.
11.3 MessageNet shall be entitled to recover its costs in connection with the retrieval of Client Data pursuant to clause 11.2(c), including any data conversion costs. MessageNet will have no obligation to maintain or make available any Client Data for longer than ninety (90) days following termination and may thereafter, unless legally prohibited or otherwise specified in a Statement of Work, permanently delete all such Client Data.
11.4 At any time prior to the termination or expiry of the Agreement, the Client may submit a written request for disengagement services and/or assistance with transitioning to a new provider. Unless these services are agreed, scoped and costed pursuant to a Change Request or a separate SOW, such services are provided in MessageNet’s absolute discretion at MessageNet’s then current rates and charges.
11.5 Termination of the Agreement does not affect the accrued rights or liabilities of either party.
11.6 Insolvency Protection Stays
- (a) If Client is a corporation and this Agreement commenced on or after 1 July 2018, MessageNet’s enforcement of certain rights may be stayed by the operation of sections 415D, 434J or 451E of the Corporations Act (Insolvency Protection Stay).
- (b) If, and for so long as, an Insolvency Protection Stay operates, MessageNet does not assert an entitlement to enforce any right that is subject to it.
- (c) This clause 11.6 does not prevent MessageNet from disputing that an Insolvency Protection Stay applies, or from making an application for an Insolvency Protection Stay to be lifted, in whole or in part, or otherwise exercising our legal rights.
12. Force Majeure
12.1 Neither party will be responsible for any delay, non-performance or degradation of performance of any of the obligations under the Agreement caused by or resulting from a Force Majeure, except for an obligation to make any payment. The affected party will notify the other party as soon as reasonably practicable in the case such an event causes a delay in the provision of the Services and the cause of the delay.
12.2 If a party is prevented from carrying out its obligations under the Agreement pursuant to clause 12.1 for a period of 30 days, either party may terminate the Agreement by giving 7 days’ notice to the other party, without prejudice to any rights of either party accrued prior to the date of termination.
13.1 The parties must, without delay and in good faith, attempt to resolve any dispute which arises out of or in connection with this Agreement (a “dispute”) prior to commencing any proceedings in any court or otherwise in respect of that dispute (“proceedings”).
13.2 If a party requires resolution of a dispute it must do so in accordance with the provisions of this clause 13 and the parties acknowledge that compliance with those provisions is a condition precedent to any entitlement to claim relief or remedy by way of proceedings in respect of a dispute.
13.3 If a party requires resolution of a dispute it must immediately submit full details of the dispute to its managing director or equivalent officer (each called a “responsible party”).
13.4 On submission of details of a dispute in accordance with clause 13.3, the parties must procure each of their responsible parties to meet and try, on a bona fide basis, to resolve that dispute.
13.5 If a dispute is not resolved within 20 Business Days of submission of the dispute in accordance with clause 13.3 or within such longer period as they agree, the provisions of clauses 13.6 and 13.7 will apply.
13.6 A dispute must be submitted to mediation at the option of the party requiring resolution of that dispute in Sydney, NSW in accordance with the ACDC’s standard rules before a mediator to be agreed. If the parties cannot agree on a mediator, the chief executive for the time being of the Australian Commercial Dispute Resolution Centre (ACDC) (or nominee) will be requested to appoint a mediator within 10 Business Days of the request.
13.7 A party may not commence proceedings in respect of a dispute unless that dispute is not settled by mediation within 20 Business Days of submission to mediation or within such other longer period as the parties agree.
13.8 Each party will pay its own costs associated with this dispute resolution procedure unless the mediator determines otherwise.
13.9 While any dispute remains unresolved, the parties agree to continue to perform the Agreement to the extent that such performance is possible, given the nature of the dispute.
13.10 This clause 13 does not limit in any way a party’s right to seek any form of equitable relief including, without limitation, injunctive relief.
14. Change Requests
14.1 The parties will follow the change request process described in this clause 14 to initiate and consider:
- (a) new Services that are not within the scope of a SOW; or
- (b) changes to the Services (including any changes to the nature or scope of the Services or to the timing or the delivery of the Services) which cannot be accommodated by another process in this Agreement, each being referred to in the Agreement as a “Change Request”.
14.2 A Change Request must:
- (a) contain a detailed description of the proposed change;
- (b) detail the effect (if any) on the Services (including the functionality and performance of any deliverables);
- (c) detail impact on the Fees;
- (d) detail the impact to any agreed service levels; and
- (e) contain a timeline for implementation of the change, including any significant milestones.
14.3 Each party will cooperate with the other party as necessary to enable the preparation of a Change Request, including by providing information, documents and details.
14.4 The Client will, within a reasonable period of time from receipt of the relevant information provided pursuant to clause 14.2, notify MessageNet of its decision in respect of a Change Request including, without limitation, whether it:
- (a) accepts the Change Request;
- (b) wishes to renegotiate any aspect of the Change Request;
- (c) withdraws the Change Request, if initiated by the Client; or
- (d) does not accept the Change Request, if initiated by MessageNet.
14.5 A party must not unreasonably refuse (directly or indirectly) any Change Request by the other party.
14.6 Neither party has any obligation to proceed with any Change Request unless and until the parties have agreed in writing on the necessary variations to the Services, the Fees, any applicable timeframes and/or any other relevant terms of the Agreement to take account of the change.
- (a) the Change Request is relatively minor (in terms of cost and impact) and is fairly routine; or
- (b) If agreed by the parties (agreement not to be unreasonably withheld),
a truncated change request process (acceptable to both parties) may be adopted to deal with any particular Change Request.
15.1 Rebate Disclosure. MessageNet may be the recipient of rebates and commissions as a result of volume based incentives and preferred supplier arrangements negotiated with some of its suppliers.
15.2 Relationship. This Agreement constitutes a relationship between the Client and MessageNet of principal and independent contractor. Without prejudice to clause 6.3(b), nothing in the Agreement shall constitute any relationship of agency, partnership or joint venture. Neither party, unless expressly stated in the Agreement, shall enter into or have authority to enter into any engagement or make any representation or warranty on behalf of or pledge the credit of or otherwise bind or oblige the other party.
15.3 Insurance. During the Term and at all times that MessageNet performs the Services for the Client, MessageNet must take and maintain with a reputable insurer, sufficient insurances relevant to the provision of the Services, including:
- (a) public risk and liability insurance in an amount of not less than $10 million;
- (b) professional indemnity insurance in an amount of not less than $5 million; and
- (c) Workers Compensation insurance in compliance with each State’s (or Territory’s) legislative requirements.
15.4 Variation. This Agreement may only be varied, modified, amended or added to in writing executed by the parties in the manner that the Agreement is executed.
15.5 No Waiver. No delay by a party in exercising any right under this document will operate as a waiver of that right nor will any waiver by a party of any right under this document operate as a waiver of any other right of that party, nor will any single or partial exercise of any right preclude any further exercise of that or any other right under this document.
15.6 Counterparts. This Agreement may be executed in two counterparts which, when taken together, will constitute one single Agreement between the parties.
15.7 Severability. If any provision of the Agreement is unenforceable it will be read down so as to be enforceable or, if it cannot be so read down, the provision (or where possible, the offending part) will be severed from the Agreement without affecting the validity, legality or enforceability of the remaining provisions (or parts of those provisions) of the Agreement which will continue in effect.
15.8 Survival. The provisions of the Agreement which are capable of having effect after termination of the Agreement will remain in full force and effect following the termination of the Agreement.
15.9 Entire Agreement. This Agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of the Agreement.
15.10 Notices. If either party gives or is required to give a notice to the other party under the Agreement, that notice must be in writing and hand delivered, sent by pre-paid post or emailed to the address specified in the SOW.
15.11 Use of logos. Unless the Client expressly specifies otherwise in writing, MessageNet may use and publish the Client’s logo for marketing purposes and otherwise disclose that the Client is a customer of MessageNet.
15.12 Aggregated Data. MessageNet shall be permitted to use Aggregated Data for any purpose or disclose Aggregated Data to any third party.
15.13 Governing Law. This Agreement is governed by the laws of New South Wales and the parties submit to the exclusive jurisdiction of the courts of that State.
Part B – E-Privacy
16. This Part B applies if the Services or the performance of the parties’ respective obligations under this Agreement involve the processing of any personal data (as defined in the GDPR) of, or sending Messages to, any individuals in the European Union.
17. Privacy and Electronic Communications and E-Commerce.
- (a) The Client warrants and undertakes at all times to comply (and to ensure that its staff and End Users also comply) with its obligations under the Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Electronic Commerce (EC Directive) Regulations 2002, in particular the Client:
- (i) warrants and represents that End Users to whom it sends Messages have consented or otherwise opted-in to the receipt of such Messages as required by any applicable Law or regulation;
- (ii) agrees that it will include clear opt-out/unsubscribe information on its Messages when required to do so by any applicable Law or regulation; and
- (iii) will adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to its Messages.
- (b) The Client will indemnify MessageNet for any Claim that results from the Client’s breach
- of paragraph (a) above.
18. Data Protection.
- (a) The terms ‘data subject’, ‘personal data’, ‘process’, and ‘supervisory authority’ have the meanings given to them in the GDPR.
- (b) With effect from 25 May 2018, if a party is provided with, or has access to personal data in connection with the Services, it must comply with the GDPR and any other applicable law in respect of that personal data.
- (c) The subject matter of the processing by MessageNet shall be the performance of this Agreement. The nature and purpose of the processing shall be the provision of the Services. The duration of the processing shall be the duration of this Agreement.
- (d) MessageNet shall:
- (i) only process personal data on the Client’s behalf in accordance with the Client’s instructions and for the purposes set out in this Agreement;
- (ii) implement appropriate technical and organisational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
- (iii) ensure that any of its personnel engaged in the processing are subject to a duty of confidentiality.
- (iv) co-operate with Client if Client is required to deal or comply with any assessment, enquiry, notice or investigation by the Information Commissioner, to assist Client in complying with such assessment, enquiry, notice or investigation.
- (v) notify Client if MessageNet receives a request from a data subject for access to personal data and shall provide Client with reasonable co-operation and assistance in relation to any such request.
- (vi) inform Client without undue delay if at any time any personal data is or is suspected to be, lost, corrupted, used or disclosed to a third party except in accordance with this Agreement and provide reasonable assistance to Client in relation to its obligation to notify data subjects or a supervisory authority.
- (e) Client acknowledges that in providing the Services, personal data may be transferred outside the European Economic Area under the Agreement and each party undertakes to comply with its obligations under the Model Clauses.
- (f) Client hereby consents to the sub-processing of personal data by a third party. MessageNet shall only appoint additional sub-processors where MessageNet has your prior consent to do so and where MessageNet has written terms in place with the sub-processor that reflect these terms.
- (g) Client warrants that it has provided a fair processing notice to End Users that notifies them of MessageNet’s processing activities and that where MessageNet’s processing of personal data on Client’s behalf requires the consent of End Users, Client has and will obtain this and provide MessageNet with evidence on request.
- (h) On termination of this Agreement, MessageNet shall delete all personal data that Client has provided to us, unless we are required by law to retain it (in which case, we will not actively process it after the termination date).
- (i) Client may, not more than once in any 12-month period and on giving at least 30 days’ written notice, conduct an audit of MessageNet’s processing of personal data under this Agreement. The parties shall mutually agree on the scope, timing and duration of the audit. The audit shall exclude any personnel records and any data, systems and facilities which are subject to confidentiality obligations to third parties. Client shall not be entitled to take copies of any information.
- (j) Client indemnifies us for any Claim by its staff, End Users or any other third party that it has suffered Loss as a result of Client’s breach of paragraphs (b), (e) or (g) above.
Part C – Model Clauses
STANDARD CONTRACTUAL CLAUSES (PROCESSORS) For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection
Name of the data exporting organisation: Customer as shown on the Statement of Work
Address: Customer's address as shown on the Statement of Work
Tel: Customer's telephone number as shown on the Statement of Work
E-mail: Customer's email address as shown on the Statement of Work
Other information needed to identify the organisation: N/A
(the data exporter)
Name of the data importing organisation: Supplier as shown on the Statement of Work
Address: Supplier’s address as shown on the Statement of Work
Tel: Customer's telephone number as shown on the Statement of Work
E-mail: Customer's email address as shown on the Statement of Work
Other information needed to identify the organisation: N/A
(the data importer)
each a ‘party’; together ‘the parties’,
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
Clause 1 Definitions
For the purposes of the Clauses:
- (a) ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
- (b) ‘the data exporter’ means the controller who transfers the personal data;
- (c) ‘the data importer’ means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country’s system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
- (d) ‘the sub-processor’ means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
- (e) ‘the applicable data protection law’ means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
- (f) ‘technical and organisational security measures’ means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Clause 2 Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Clause 3 Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Clause 4 Obligations of the data exporter
The data exporter agrees and warrants:
- (a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
- (b) that it has instructed and throughout the duration of the personal data-processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and the Clauses; 12.2.2010 Official Journal of the European Union L 39/11 EN;
- (c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
- (d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
- (e) that it will ensure compliance with the security measures;
- (f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
- (g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
- (h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
- (i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
- (j) that it will ensure compliance with Clause 4(a) to (i).
Clause 5 Obligations of the data importer
The data importer agrees and warrants:
- (a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- (b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
- (c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
- (d) that it will promptly notify the data exporter about: (i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation; (ii) any accidental or unauthorised access; and (iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
- (e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
- (f) at the request of the data exporter to submit its data-processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
- (g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
- (h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
- (i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
- (j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
Clause 6 Liability
1. The parties agree that any data subject who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses. 12.2.2010 Official Journal of the European Union L 39/13 EN
Clause 7 Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject: (a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority; (b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Clause 8 Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5(b).
Clause 9 Governing law
The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely the Country specified in the Application Form.
Clause 10 Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
Clause 11 Sub-processing
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor’s obligations under such agreement.
2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely the Country specified in the Application Form.
4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5(j), which shall be updated at least once a year. The list shall be available to the data exporter’s data protection supervisory authority.
Clause 12 Obligation after the termination of personal data-processing services
1. The parties agree that on the termination of the provision of data-processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data-processing facilities for an audit of the measures referred to in paragraph 1.
Appendix 1 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties
The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix
Data exporter: The data exporter is a customer of the data importer, who wishes to use the data importer's telecommunications services to send electronic messages to individuals within the European Economic Area.
Data importer: The data importer, who is specified in the Application Form, is a telecommunications service provider that processes certain personal data provided to it by its customers in order to provide electronic messaging services to those customers.
Data subjects The personal data transferred concerns the following categories of data subjects:
Customers, employees and other end users of the data exporter. As the data exporter has full control over the personal data which is being transferred to the data importer, and the data importer will receive any personal data that the data exporter transfers, the data exporter has sole control over the specific data subjects.
Categories of data:
As the data exporter has full control over the personal data which is being transferred to the data importer, and the data importer will receive any personal data that the data exporter transfers, the data exporter necessarily has sole control over the specific categories of data. Categories may include name, telephone numbers and email addresses.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify): As the data exporter has full control over the personal data which is being transferred to the data importer, and the data importer will receive any personal data that the data exporter transfers, the data exporter necessarily has sole control over any special specific categories of data which may be transferred to and processed by the data importer.
Processing operations: The personal data transferred will be subject to the following basic processing activities: Submission to telecommunication providers for delivery; storage; access for customer service, email and messaging abuse detection, prevention, and remediation; monitoring, maintaining and improving the data importers services.
Appendix 2 to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties.
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
The data importer’s security measures include, but are not limited to:
- Customers interact with and transmit messages over a secure (encrypted) TLS/SSL connection
- Services interact and transmit to carriers over a secure (encrypted) TLS connections and/or VPN tunnels
- Firewalls protecting the data importer’s production network and servers.
- Non-public access to production network and servers is also protected by a secure VPN connection
- Services are hosted in secure Tier-1 datacentres protecting physical servers and devices.
- Strict protocols and controls governing authorisation and access to the data importer’s servers and devices.
- Audits by security experts, including penetration testing.