SMSFun Terms and Conditions
2. Our Website and Services
2.1 Website and Services
- Subject to you becoming and continuing to be a registered member of SMSFun ("Member") and your continued compliance with these terms and conditions, the services provided on this Website may from time to time include:
- "SMS" and "MMS" messaging from the Website to anyone with an active mobile account in a Supported Country and access to an online and mobile community where you may receive certain other listed SMS and mobile services, use "Fun Tools", search Member profiles, peer to peer communication, access community feeds and receive other SMSFun community related benefits, promotions and information ("Services"); and
- the opportunity to purchase or otherwise acquire goods and services including, but not limited to, online or mobile downloads ("Downloads"), stored value cards, mobile recharging.
- For our standard Members, we currently provide our SMS and MMS messaging services and a level of certain other Services for free (however you should be aware that other charges, such as your telecommunications or data provider's rates and fees, such as downloading charges, may still apply).
- For our premium Members (eg: Gold Membership), we may charge you for the use of the Services however this usually means that your package may contain additional features. We will disclose to you the terms and fees applicable to the premium Membership prior to you confirming such membership.
- We reserve the right at any time to charge or amend the fees payable by you and to vary or amend the terms and conditions which cover such fees for your access or use of any part of the Website and/or the Service.
2.2 Variation of the Website and Services
You acknowledge that we may, in our sole discretion and without notice, vary, modify or discontinue, temporarily or permanently, any or all of the Website (including User Content on the Website) or the Service and you agree that we are not liable to you or any third party for such variation, modification or discontinuance.
- You acknowledge that certain Downloads accessible via the Service will only be supported by certain types of compatible mobiles and smartphones. It is your responsibility to test if your mobile or smartphone is compatible with monophonic, polyphonic and/or truetone ringtones or any other product or service we offer. For example, to download a polyphonic or truetone ringtone, you must have a compatible mobile or smartphone that:
- supports polyphonic ringtones;
- supports text messaging; and
- has a telecommunication or data plan that supports wireless internet access and downloading.
- If you attempt to download any Download that cannot be supported by your mobile or smartphone, you agree that you will not be entitled to any refunds or credits for a failed download. If you fail to receive a Download because of network congestion or unavailability, you may contact SMSFun via smsfun.com.au/support and SMSFun may, at its discretion, redeliver such Download. In no event will SMSFun provide any refunds to you for your inability to download any Downloads.
- Your only remedy for a technical failure or interruption of service when downloading is to request that your transaction be completed at a later time.
2.4 Email a friend function
- If you use our "email a friend" function to recommend any of our webpages we ask that you provide your friend's email address and you must ensure that your friend has consented to receive the recommended page. You may also add a personal message. We will only store and use the information you provide to send a single email to your friend inviting them to view the recommended webpage or (where appropriate) to track and prevent misuse of the function.
- If you believe the "email a friend" function has been abused please contact us via smsfun.com.au/support.
3. Purchases and Joobz
- To access certain features of the Website and the Services, you may be required to pay membership fees (eg: Gold Membership fees).
- When you confirm a transaction on SMSFun, you agree to be bound by and pay for that transaction. All sales are final and the total price may include taxes, duties fees, and shipping costs, which you are responsible for paying.
- You represent to us that your wireless carrier is authorized to collect any applicable taxes and impose any applicable premium surcharges that may apply to the use of certain features of the Services.
- All costs billed to your mobile or smartphone account by your telecommunications or data provider are your responsibility. It is also your responsibility to ensure your mobile or smartphone account has sufficient credit to accommodate SMSFun messages. SMSFun takes no responsibility for any misuse or over-subscribing to your mobile or smartphone account.
3.2 Payment methods
- When you provide a payment method to us, you confirm that you are permitted to use such method. You also authorize us to collect and store information and data in respect of such, along with any other transaction related information.
- When you make a payment, you authorize us (and our designated payment processor) to charge the full amount to the payment source you designate for the transaction.
- If you pay by credit or debit card we may obtain a pre-approval from the issuer of the card for an amount up to the amount of the purchase. We will charge your card at the time of purchase or shortly thereafter. If you cancel a transaction before completion, that pre-approval may result in your funds not otherwise being immediately available.
- If your payment results in an overdraft or other fee from your bank, you are solely responsible for such fees.
- We also operate a system of credits solely for use by Members in our online communities - these credits are known as "Joobz". You may purchase or acquire Joobz to then purchase goods or services from us or to send gifts to other Members.
- Except as otherwise expressly stated, purchases of Joobz are non-refundable and are not redeemable for any sum of money or monetary value.
- You cannot transfer Joobz to anyone who is not a Member and all transfers may be subject to a "transfer commission".
- We may change the purchase price and credit values for Joobz at any time as well as the ways that you may use or transfer them. We also reserve the right to stop issuing Joobz at any time.
- If you do not log into your Account in any consecutive 6 month period or if you delete your account and leave a Joobz balance, or if we deactivate your account and you do not meet any conditions necessary to reinstate it within 6 months, we may process your balance in our sole discretion.
- If we offer free or promotional Joobz, we may expire such offers at any time or limit the use of such Joobz in our sole discretion.
3.4 Payment issues
- To the fullest extent permitted by law, you waive all claims against us related to your payments unless you submit the claim to us within 60 days after the transaction.
- You are responsible for and agree to reimburse us for all reversals, charge-backs, claims, fees, fines, penalties and other liability incurred by us (including costs and related expenses) that were caused by or arising out of payments that you authorized or accepted.
4 SMSFun Membership
4.1 Registering your Account
- In order to have full access to the Website and to make full use of the Services, you are required to register as a SMSFun member ("Member").
- You may only become a Member if:
- you are aged 13 to 17 years and have obtained consent from a parent or guardian to join as a Member; or
- you are aged 18 years or older.
- Standard Membership is free and all Memberships are limited to one account ("Account") per person.
- Where you are required to register an Account:
- you must provide us with a mobile or smartphone number that is valid in a Supported Country (see Supported Country list at http://www.smsfun.com.au/supported_countries.php);
- you must provide a valid and current email address. If the email address you provide bounces or does not exist, your registration may be blocked or suspended;
- you must provide us with accurate, complete and updated registration information (including personal information), and you must keep such information up-to-date;
- if you change or deactivate your mobile telephone number, you will update your Account within 48 hours (so that messages are not sent to the person who acquires your old number);
- you must not provide false information or create an account in someone else's name;
- you must safeguard any user name and password which we provide to you;
- you authorise us to assume that any person using the Website or Service with your user name and/or password is either you or is authorised to act for you;
- where your user name and/or password is specific to you, you must not allow anyone else to use your username and/or password;
- you agree to immediately notify us of any unauthorised use of your user name and/or password or any breach of security of which you become aware;
- you may cancel your registration at any time by notifying us.
- As a Member, you consent to receiving SMS texts and emails and we are not responsible for charges or fees you may incur from your telecommunications and data providers for receiving such messages.
- You consent to SMSFun and/or its business partners may presenting you with advertisements and promotional materials on or through the Website or the Services.
- If you do not wish to receive promotional SMS texts, please send us a SMS text with the message "STOP". Similarly, if you do not wish to receive promotional emails, please send us an email with the message "STOP". If you send a "STOP" message to us, this alone will not block your Account however it will result in, from the date we receive your email, us ceasing to send you promotional SMS texts. However, we do note that sending a "STOP" message may result in you not receiving the full benefit of the Website and Services (including any subsequent Member offers or promotions), but you can also opt back into receiving news of our latest offers and promotions at any time by contacting us at smsfun.com.au/support.
4.3 Your Account
- We reserve the right to remove or reclaim a username if we believe it is appropriate to do so (such as when a trademark owner complains about a username that does not closely relate to a user's actual name).
- You agree that you will not allow anyone other than you to use your Account.
- You are solely responsible for the activity that occurs on your Account. SMSFun cannot guarantee the security of online transactions and communications sent by electronic means or post. SMSFun will not be liable for your losses caused by any unauthorized use of your Account and you agree to indemnify and hold harmless SMSFun, its partners, parents, subsidiaries, agents, affiliates and/or licensors (as applicable) against any improper, unauthorized or illegal uses of your Account.
- SMSFun shall be entitled to rely on the assumption that the person or entity responsible for the mobile or smartphone account to which content is downloaded from us is responsible for all uses of the Service through that account. We will not issue refunds to you or other persons or entities claiming that they did not authorize the use of their mobile or smartphone account to receive the Services or a Download.
- We reserve the right to discontinue or cancel your registration or membership in our sole discretion without notice if you do not visit the Website or use the Service for 6 months, if you breach any of these terms and conditions or any applicable law or if we conclude that your conduct impacts on our name or reputation or violates our rights or those of another party.
- If we discontinue or cancel your registration or membership, you must not open another Account without first obtaining our written consent.
- When content in your Account is deleted, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).
4.4 Use of personal information
- Where we sell SMSFun or any of its assets, or we change ownership or our corporate structure, you consent to us transferring data we hold (including your personal information) to any third party as part of any such process.
5. Licence to use the content on the Website
5.1 Website and Services
- You acknowledge that the Website, the Services, Downloads and all related content are subject to copyright and possibly other intellectual property and other proprietary rights ("Intellectual Property Rights").
- We grant you a limited, non-transferable licence to access and use the Website and the Service solely for your personal, non-commercial purposes and only for these purposes.
- We (or our licensors) retain all right, title, and interest in and to the Website, the Services and all related content, and nothing you do on or in relation to the Website, the Services or any of the related content will transfer any Intellectual Property Rights to you or, except for the licence referred to in paragraph 5.1(b), licence you to exercise any Intellectual Property Rights.
- Subject to applicable law, we may revoke the permission referred to in paragraphs 5.1(b) and 5.1(d) at any time and may suspend or deny, in our sole discretion, your access to all or any portion of the Website or the Service without notice.
5.4 Liability for images
Ensuring the existence of appropriate rights in, and relevant legal compliance with respect to, images uploaded by users and Members is the responsibility of the user and/or member that uploads any such image. All uploads are subject to any applicable laws and users or Members identified by us as having uploaded prohibited content may be subject to penalties under applicable laws and may be banned from use of the Website on either a temporary or permanent basis.
6 Your use of the Website and the Services
6.1 User Content
- The Website and the Services may contain material or content uploaded, posted, emailed or otherwise electronically transmitted ("Posted") by Members and users of the Website and the Services, including you ("User Content").
- We do not endorse or adopt any User Content nor do we make any representations or warranties about its currency, accuracy, completeness, correctness or usefulness, or its appropriateness for you and your circumstances. However we reserve the right:
- to access or examine any User Content; and
- at our discretion, move, remove or disable access to User Content which we consider, in our sole opinion, to breach any law or to be otherwise unacceptable.
- You acknowledge that we may remove any User Content Posted by you in our sole discretion and that we have no responsibility or liability for the deletion or failure to store any communications or content Posted on the Website or through the Service.
- If you use the Website or the Service, you are solely responsible for any User Content Posted by you. In using the Website or the Services, you must not:
- violate any applicable laws;
- impersonate any person (including sockpuppeting);
- solicit login information or access an Account belonging to someone else;
- Post any User Content that:
- infringes the Intellectual Property Rights of any third party or Post User Content that you do not have the right to Post;
- is unlawful, harmful, threatening, abusive, misleading, invasive of another's privacy, harassing, defamatory, slanderous, vulgar, obscene, hateful, racist, embarrassing or otherwise objectionable to any other person or entity;
- contains any unsanctioned advertising, promotional materials, or any other forms of unsanctioned solicitation, including without limitation junk mail, spam, chain letters, or any unsolicited mass distribution of email;
- contains a survey, contest, or pyramid scheme; or
- contains an improper question;
- stalk, harass, bully, intimidate or otherwise harm others;
- distribute viruses, corrupted files, or any other similar software or programs that may damage the operation of any computer hardware or software;
- use or exploit any errors in design, features which have not been documented, or "bugs" to gain access in any way that is not generally known and intentionally made available by SMSFun;
- attempt (or authorize, encourage or support others' attempts) to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Service or the Downloads. You agree to advise SMSFun promptly of any such unauthorized use or attempt.
- frame or mirror any part of the Website without our express prior written consent;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Website;
- use any device, software or other instrumentality to interfere or attempt to interfere with the proper working of our site, and that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. In addition, you agree that you will not use any robot, spider, harvesting bot, other automatic device, or manual process to monitor, copy or "data mine" our web pages or the content contained herein, without our prior express consent (however such consent is deemed given for standard search engine technology employed by internet search web sites to direct internet users to our Website).
- collect or store personal data about other users of the Website or the Service; or
- engage in any other conduct that inhibits any other person from using or enjoying the Website or the Services.
6.2 User Content licence
- You grant us a royalty free, non-exclusive, worldwide licence for us to use, modify, adapt, publish, display, sublicense, create derivative works from and incorporate in other works any User Content Posted by you, at any time in the future in any form and for any purpose and you warrant that you have the right to grant this licence. By granting us this licence, you also expressly consent to us disclosing the contents of your SMSs on the Website where other Members may view them, provided that we do not disclose your name, your complete mobile number or your email address. You may opt out of using the Website or Services at any time by contacting us at smsfun.com.au/support. If you opt out in any way, you agree that it does not reduce the scope of the licence granted to us under this clause. You can opt back into the Website or Service at any time. If you opt out, this alone will not block your Account however it may result in you not receiving the full benefit of the Website and Services. You can opt back in at any time by contacting us at smsfun.com.au/support.
7 Your representations and warranties
You represent and warrant that:
- all User Content that you Post is true, accurate and not confidential to or owned by any other person;
- you will not use the Website or the Services for any purpose that is unlawful or prohibited by these terms and conditions; and
- all User Content Posted by you is owned by you and our use of such User Content does not infringe or violate the Intellectual Property Rights or any other rights of anyone else.
8 Use of the Website is at your own risk
- You use the Website and the Services at your risk. You must evaluate and bear all risks associated with the use of any material or content, including reliance on the accuracy, completeness or usefulness of any material or content. In particular:
- we endeavour to provide a convenient and functional Website and Service, but we do not guarantee that that your requirements will be met or that any content will be uninterrupted, error free or that the Website or Service or the server that operates them are free of viruses or other harmful components; and
- while we may attempt to keep information on the Website or the Service current and accurate, we do not make any warranties or representations about the currency and accuracy of any information on the Website or the Service.
- If your use of the Website or the Service results in the need for servicing or replacing property, material, equipment or data, we will not be responsible for such costs.
- You will comply with all applicable laws of the jurisdiction you are located in when using or accessing SMSFun.
9 Limitation of liability
- If any guarantee, warranty, term or condition is implied or imposed in relation to these terms under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a "Non-Excludable Provision"), and we are able to limit the your remedy for a breach of the Non-Excludable Provision, then our liability for breach of the Non-Excludable Provision is limited to one or more of the following at our option:
- in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or
- in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
- Subject to our obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, our maximum aggregate liability for all claims under or relating to these terms or their subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to A$100. In calculating our aggregate liability under this clause, the parties must include any amounts paid or the value of any goods or services replaced, repaired or supplied by us for a breach of any Non-Excludable Provision.
- Subject to our obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, we are not liable for, and no measure of damages will, under any circumstances, include:
whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.
- special, indirect, consequential, incidental or punitive damages; or
- damages for loss of profits, revenue, goodwill, anticipated savings or loss or corruption of data,
You understand that you are solely responsible for your behaviour while using the Website and the Services and for all content provided via your Account (including User Content and Posts). You agree to defend, indemnify and hold harmless us, our officers, directors, employees, agents, subcontractors, licensors, and suppliers, from and against all claims, actions, demands, liabilities and settlements, including, without limitation, reasonable legal and accounting fees, arising in connection with or resulting from your use or alleged use of the Website, the Services or the Downloads, a breach of your representations and warranties in paragraph 7 or your violation of the rights of any third parties.
11 Links and advertisements
- We have not reviewed all of the sites linked to the Website and are not responsible for the content or accuracy of any off-site pages or any other sites linked to the Website (including without limitation sites linked through advertisements). The inclusion of any link does not imply that we endorse the linked site, and you use the links at your own risk. Your correspondence or dealings with, or participation in promotions of, advertisers on the Website are solely between you and such advertisers.
- Further we are not responsible for the actions, content, information or data of third parties that appear on our Website or is available via the Services or a promotion and you release us, our group entities, our directors, officers, employees and agents from any claims and damages, known and unknown, arising out of or in any way connected with any claim you may have against any such third parties.
12 Complaints handling
12.1 Making complaints
If you wish to make a complaint because you believe content on the Website is objectionable, or infringes copyright or any other rights, please use the "report abuse button" or contact us at [email protected] and:
- specify the content which you allege is infringing or objectionable;
- provide an explanation of why you believe the content is infringing or objectionable; and
- provide your contact details.
- Without limiting our right to discontinue the Website and all or any of the Services (which we may do at any time in our sole discretion without liability to you), we retain the right to suspend or terminate your Account or your use of the Website and Services where:
- we suspect abuse of the Website or any aspect of the Services; or
- if there is an emergency or we need to perform some maintenance on our Website.
- You may terminate your Account at any time by first providing written notice, provided that any accrued obligations you owe to us (eg: payment obligations assumed by you prior to the effective time of termination) are unaffected.
- If you are visiting this Site from outside Australia, we make no representations as to the compliance of our Website with the laws of other jurisdictions.
- Your use of the Website and Services is conducted electronically and you agree that we may communicate with you electronically for all aspects of your use of such, including sending you electronic notices.
- The provisions of these terms and conditions which by their nature survive termination or expiry of these terms and conditions will survive cancellation of your registration or termination or expiry of these terms and conditions.
- The entire agreement between you and us governing your use of our Website and Services consist of:
In the event of an inconsistency between a term of any two or more of the above listed documents, the term contained in the document listed higher in order will apply to the extent of the inconsistency.
- where we make a certain product offer, the terms applicable to that offer.
15 Contacting us
Please direct any questions concerning the Website or the Services to our Customer Service department by going to: smsfun.com.au/support or phoning 1300 794 487.