1. Any user of Zencer’s professional SMS application that allows customers and clients to communicate with their desired audience for, among other things, reminders and marketing purposes is, for the purposes of this agreement, called the ‘Customer’.
2. Zencer agrees to provide the Services to the Customer in accordance with this Agreement.
Limitations of liability
3. The Customer acknowledges that Zencer makes no representations, warranties or guarantees about the provision of the Service.
4. The Customer acknowledges it does not rely nor is it reasonable to rely on the skill or judgement of Zencer in providing the Services.
5. The Customer acknowledges that the Services do not include photo or video content.
6. The Customer acknowledges and warrants that Zencer will not be held liable:
(a) for any damage, loss or injury arising, either directly or indirectly, from the Customer’s use of or inability to use the Services;
(b) if and to whatever extent, the Customer’s user account is subject to cyberattack, hacking or other sabotage;
(c) for any inability to provide the Services on time or at all as a consequence of cyberattack, hacking or sabotage or due to any deficiency on the part of any mobile telephone network, SMS broadcaster or mail server; or
(d) Consequential Loss suffered by the Customer howsoever caused.
7. To the extent that Zencer cannot limit its liability under this Agreement its liability is limited to re-supplying, or the cost of re-supplying, the Services.
Prohibition on misuse
8. The Customer agrees not to:
(a) transmit any material which violates State or Federal laws, instructions, regulations or guidelines issued by regulatory authorities, relevant licenses and other codes of practice;
(b) transmit any material which contravenes any privacy or copyright laws or rules; or
(c) interfere with third party proprietary interests howsoever arising.
9. The Customer agrees not to use the Services in a way that could harm or interfere with Zencer’s legitimate business interests.
10. The Customer agrees to indemnify Zencer for any loss, damage, expense, interest or cost (including all legal costs howsoever incurred) that Zencer may incur by reason of the Customer’s breach of clauses 8, 9 and 17 herein.
Termination, suspension and cancellation
11. Zencer may in its sole discretion decide to refuse any further Service if the Customer:
(a) fails to pay the Price; or
(b) breaches any of clauses 8, 9 and 17 herein.
Governing law and jurisdiction
12. This Agreement is governed by, and is to be construed and to take effect in accordance with, the laws of Victoria.
13. This Agreement contains the entire agreement and understanding of the Parties in respect of the matters dealt with. The Parties acknowledge and agree that any previous agreements, understandings, representations and negotiations regarding the subject matter of this Agreement will cease to have any effect.
14. If any covenant, obligation or provision in this Agreement or any part thereof is invalid or unenforceable as a result of any law, rule of equity or government regulation, then it will be of no effect and will be deemed to be severed from this Agreement. The remaining covenants, obligations and provisions of this Agreement will not be affected thereby and will remain valid and enforceable to the fullest extent permitted by law.
15. This Agreement may not be varied in any way, except in writing signed by or on behalf of both Parties.
16. Zencer may collect personal information about the Customer, the Customer’s representatives, the Customer’s clients and others in the course of Zencer providing the Services.
17. In collecting personal information, Zencer and the Customer agree to meet whatever obligations may from time-to-time apply by operation of the Privacy Act 1988 (Cth) and any other relevant State of Federal legislation.
18. Zencer may access and store any data the Customer provides for the purpose of investigating a breach of this Agreement.
Agreement means this agreement set out in these here ‘Terms and Conditions of Use’.
Consequential Loss means any loss or damage occurring, whether as a result of negligence, breach of contract, misrepresentation or otherwise, including without limitation: loss of actual or anticipated profits, loss of overheads, loss of opportunity, loss of contract, loss of revenue, loss of production, loss of income or loss of anticipated savings.
GST has the meaning given to that term in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), as may be amended from time-to-time.
Party/Parties means Zencer and/or the Customer.
Price means the price (inclusive of GST) that the Customer is liable to pay Zencer as follows:
Initial Purchase + Set Up Fee
Services a professional SMS application that allows customers and clients to communicate with their desired audience for, among other things, reminders and marketing purposes.