Terms of Use

Media By Mobile provides its services to you subject to the following terms and conditions. If you visit or conduct electronic transactions in any way at Media By Mobile, you accept and agree to abide by these terms and conditions.

The following terms are used throughout this document:

  • "User, client or you" - a person who uses and/or accesses computer Software and/or material or Service via the Media By Mobile site
  • "Media By Mobile/us" - Known Pty Ltd.
  • "Software" - Including but not limited to any images or files incorporated in or generated by the software or data accompanying such software
  • "Material" - Including but not limited to: text, submissions, images, audio and/or video in whole or in part;
  • "Content" - Included but not limited to SMS message content software and material;
  • "Service(s)" means the Media By Mobile message delivery via SMS service made possible with the use of Media By Mobile proprietary software.

Media By Mobile provides users with a variety of tools and resources to collect visitor mobile numbers and to create, launch, and manage online SMS campaigns (the "Services"). This service may not be used for the sending of unsolicited SMS (sometimes called "spam"). See our Anti-Spam Policy. The following are the terms and conditions for use of the Services. By signing this document or checking the "I have read the Media By Mobile Terms of Use statement. I accept these terms and conditions" box on the Sign Up page or after logging in for the first time, you accept these terms and conditions.

 

1. Services and Support

1.1 The Services are provided subject to this Agreement, as it may be amended by Media By Mobile, and any guidelines, rules or operating policies that Media By Mobile may establish and post from time to time (the "Agreement"). By posting updated versions of the Agreement at the Media By Mobile web site, or otherwise providing notice to you, Media By Mobile may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Services at its sole discretion. All such changes shall become effective upon posting of the revised Agreement on the Service.

1.2 The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, please do not use the Services.

1.3 The Services enable corporate web sites, small business web sites, and community sites to sign up web site visitors, collect and retrieve visitor sign-up data, and develop and execute SMS communications with visitors and other targeted prospects.

1.4 Both the number of SMS messages sent and the number of characters of data transferred are metered by Media By Mobile. Normal Media By Mobile accounts allow you to send an unlimited number of SMS messages provided your account has enough credit. Concatenated SMS messages are charged in line with standard industry policy. The total character data transfer of each message can be no more than 628 chars.

1.5 All message delivery prices are subject to change at any time. You are responsible for reviewing the price schedule from time to time and remaining aware of the prices charged by Media By Mobile. Media By Mobile will immediately advise you of price changes by email or SMS. Any objections must be raised within 7 days for special consideration. Payment in advance for Services can be made by a valid credit card accepted by Media By Mobile, unless other payment arrangements have been made between you and an authorized Media By Mobile representative. System credit is available for purchase by in Australian dollars. If Media By Mobile is for any reason unable to effect automatic payment via your credit card, you will be notified via e-mail. All payments made to Media By Mobile are non-refundable, unless an account is terminated by Media By Mobile for a reason other than violation of the Anti-Spam Policy.

1.6 For all accounts, Media By Mobile may charge an account re-activation fee should an account need to be re-activated by customer after an account has become de-activated due to failure to comply with this agreement, or if the account becomes inactive.

1.7 You must complete the registration form on the Sign Up page in order to use the Services. You will provide true, accurate, current, and complete information about yourself as requested in the registration form. As part of the registration process, you will identify an email address and password for your Media By Mobile account. You are responsible for maintaining the security of your account, passwords, and files, and for all uses of your account and of the Services in your name. Media By Mobile reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.

 

2. Restrictions and Responsibilities

2.1 This is an Agreement for Services, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services ("Software"); remove any proprietary notices or labels from the Services or any Software, modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software. The Services shall be used for your business purposes only and you shall not use the Services or any Software as agent for a third party. If you are using the Services in any country in the European Community, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.

2.2 You acknowledge and agree that the Services and the Media By Mobile company names and logos and all related product and service names, design marks and slogans, are the property of Media By Mobile or its affiliates or suppliers (collectively, the "Marks"). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of Media By Mobile. Your use of the Services confers no title or ownership in the Service, the Software or the Marks and is not a sale of any rights in the Service, the Software or the Marks. All ownership rights remain in Media By Mobile or its third party suppliers, as the case may be.

2.3 You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). You agree you will not access or otherwise use third party contact lists in connection with preparing or distributing unsolicited messages to any third party. You hereby agree to indemnify and hold harmless Media By Mobile against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. Although Media By Mobile has no obligation to monitor the content provided by you or your use of the Services, Media By Mobile may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.

2.4 The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates Australian federal, state or other laws that may apply in your local area is prohibited. This may include material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party's intellectual property rights.

2.5 In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to Media By Mobile. Media By Mobile may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Service, or communicate separately with you.

2.6 Media By Mobile will not use any of your subscriber lists or any other customer information for any other purposes than those intended with the service. Your customer information will not be shared with any other parties. In addition, Media By Mobile will not use your customer information for the purpose of sending unsolicited commercial messages.

2.7 You will comply with Anti-Spam and Privacy legislation and guidelines, applicable to the jurisdictions in which messages are sent and received.

2.8 You may not use Media By Mobile to distribute illegal contests, pyramid schemes, chain letters, or multi-level marketing campaigns

2.9 You may not use Media By Mobile to send message campaigns that link to or display nudity, obscene content, gambling related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that we deem inappropriate.

 

3. Termination

3.1 You may terminate this Agreement at any time by sending an e-mail message to mail@mediabymobile.com.au or by sending written notice to Media By Mobile, 121 Emmerson Dr, Glenlee, Qld, 4711, Australia. Correspondence must include your first name, last name, and Media By Mobile username. No refunds will be issued if you terminate this agreement.

3.2 Media By Mobile may terminate this Agreement or the Services at any time with or without cause, and with or without notice. Media By Mobile shall have no liability to you or any third party because of such termination. If Media By Mobile terminates this agreement because you violated the Anti-Spam policy, no refund will be issued.

3.3 Media By Mobile may delete any of your archived data within 30 days after the date of termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.

 

4. Warranty Disclaimer; Remedies

USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. Media By Mobile DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED "AS IS" AND Media By Mobile DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

Your sole and exclusive remedy for any failure or non performance of the Services shall be for Media By Mobile to use commercially reasonable efforts to adjust or repair the Services.

 

5. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL Media By Mobile OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "Media By Mobile ") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF Media By Mobile SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, Media By Mobile IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF Media By Mobile TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

 

6. SMS Service

6.1 Media By Mobile provides an SMS service that sends messages to mobile phones using established carriers and aggregation companies. The provision of the SMS service is subject to the following Terms of Service.

6.2 You acknowledge that Media By Mobile delivers SMS messages via major telecommunications companies and mobile network providers and can therefore only influence the delivery transmission of SMS messages within the technical constraints imposed by the above mentioned providers. SMS messages submitted via the Internet will be transferred to the addressed mobile recipients in due course, provided that the recipient's phone is switched on and located in an area covered by his subscribed mobile network provider. You acknowledge that, depending on the recipient's mobile provider service, it may not be possible to transmit the SMS message to the recipient successfully. Media By Mobile neither claims nor guarantees either availability or performance of this service. While Media By Mobile makes every effort to deliver the message promptly, Media By Mobile accepts no liability for transmission delays or message failures.

6.3 Media By Mobile debits transmitted SMS messages according to its transmission logs. These logs are deemed correct and valid even if the customer has objected to the correctness of the accounting records, except if Media By Mobile's investigations have produced evidence of technical problem or error. Because Media By Mobile cannot guarantee delivery of the SMS messages to the recipients due to possible errors on the part of the mobile network providers, Media By Mobile will not refund undeliverable SMS messages to you.

6.4 You agree that all activities, which can be traced to your username and password, are deemed as having been performed by yourself and are legally binding to you.

 

7. Export of Services or Technical Data

You may not remove or export from Australia or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of Australia or any other applicable country.

 

8. Miscellaneous

8.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

8.2 Media By Mobile and you agree that the Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.

8.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind Media By Mobile in any respect whatsoever.

8.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.

8.5 The Agreement shall be governed by the laws of the State of QLD Australia without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Brisbane, Queensland, Australia.

 

9. System Requirements

It is understood that in order to use Media By Mobile, a Windows PC or Mac with Internet Explorer 7.0, Safari 3.0 and Firefox 2.0 or higher must be used. Additionally, a stable connection to the Internet is recommended. Media By Mobile may work in a limited manner on other platforms, but there is no guarantee of functionality at any time. Additionally, Media By Mobile may work in a limited manner on a non-Internet Explorer web browser (such as Netscape Navigator), but there is no guarantee of full functionality on any web browsers. 10. Compliance rules for sending messages. All Media By Mobile customers must follow the rules of the federal SPAM act and the Anti-Spam aspects of this agreement when sending messages through the service. Accordingly, we require the following of messages sent through the Media By Mobile system:

 

  • All messages must contain Opt Out functionality. The responsibility to ensure there is Opt Out copy and functionality on each message rests solely with you.
  • All messages must contain some form of traceable identification information, such as company name, contact number, email address or return mobile number.

 

These guidelines will help ensure that Media By Mobile maintains its reputation and white-listing status with a number of major carriers and white-listing programs. If at any time your campaign is flagged as SPAM by a carriers subscribers, Media By Mobile reserves the right to cancel your account without notice.

 

11. Message and Permission Practices

11.1 Every message sent in connection with the Services must contain an "Opt Out" mechanism that allows subscribers to remove themselves from your contact list. Each such mechanism, must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to Media By Mobile. You acknowledge and agree that you will include and not remove, disable or attempt to remove or disable this mechanism.

11.2 You agree to import, access or otherwise use only permission-based contact lists (note: purchased lists may not be used; please contact Media By Mobile if you have questions).

11.3 You cannot send messages to distribution lists, newsgroups, or spam message addresses.

11.4 You are responsible for monitoring, correcting, processing Opt Out requests within 10 days, and updating the mobile numbers to which messages are sent through your Media By Mobile account.

11.5 Messages that you send through the Service may generate abuse complaints from recipients. You are responsible for ensuring that your message campaigns do not generate a number of abuse complaints in excess of industry norms. Media By Mobile, in its sole discretion, shall determine whether your level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement.

11.6 Media By Mobile, at its own discretion, may immediately disable your access without refund to the Services if Media By Mobile believes in its sole discretion that you have violated any of the message and permission practices listed above, or the Media By Mobile Anti-Spam Policy.

 

12. Guarantees

12.1 Media By Mobile guarantees that the Media By Mobile website will be available with a 100% uptime guarantee. However, Media By Mobile cannot guarantee the reliability of service as per section 6 SMS Service in Terms of Use. In the event the Media By Mobile website is down and you are not able to send an SMS as a result Media By Mobile will credit your account with 1000 free SMS. No further claims for loss of income or damages can be brought against Media By Mobile.

12.2 Media By Mobile guarantees that the Media By Mobile website will be the cheapest Australian Registered Company offering SMS sent to the Telstra network from an identical service such as our web portal. The quoted price must be below and not equal to AUD 4c . Media By Mobile will not offer 10% off any wholesale SMS rates or for SMS that will be sent through a different service offering such as an API or any other software. Media By Mobile will beat any competitors price they deem to be a legitimate comparable service and a quote must be received in writing detailing the Terms and Conditions of that service for evaluation from Media By Mobile. Media By Mobile’s decision in evaluating the identical service and their terms and conditions is final. A maximum of 5000 SMS per customer on the first transaction which has been deemed a legitimate quote will receive a 10% discount. No further discounts will apply for subsequent transactions.

12.3 Media By Mobile guarantee that you will be 100% satisfied with our service. In the event that you are not happy with our service Media By Mobile will refund any remaining credit in your account, minus any fees charged by the merchant facility for Media By Mobile to the bank account requested by you. No refund requests for unsatisfactory levels of service will be accepted by Media By Mobile if your account has been registered for more than 30 days.