Message4U Pty Ltd (ABN 095 453 362)##End User Licence Agreement – Mercury SMS####1. Introduction##1.1. We are the proprietors of an on line tool, known as ‘Mercury SMS’, which provides the functionality to distribute SMS communications from the Salesforce.com CRM system. ##1.2. This agreement sets out the terms and conditions subject to which we will agree to allow you, as an end user, to use Mercury SMS. ##1.3. Each time you use, or attempt to use, Mercury SMS you are deemed to accept this agreement.####2. Licence##2.1 In return for you paying us all fees in accordance with clause 4, we will grant you a non-exclusive multi-user licence to use Mercury SMS, subject to this agreement.##2.2 The multi-user licence enables any number of individual users to access and use Mercury SMS in accordance with this agreement via your Account, provided that:##2.2.1 Monthly License fees for the correct number of individual users have been paid.####3. Accounts##3.1. You must have an open Account to use Mercury SMS.##3.2. You may open a new Account by:##3.2.1. providing us with all information which we may reasonably require; and##3.2.2. paying us any setup fee in accordance with clause 4.2.##3.3. After your Account is opened, we will provide you with login details for accessing your Account.##3.4. Your Account will continue to remain open unless this agreement is terminated in accordance with clause 13.##3.5. You may permit your employees and agents to access your Account on your behalf, however you are solely responsible for any activity that occurs on your Account and you must keep your Account login details secure.##3.6. You must notify us immediately of any breach of security or unauthorized use of your Account.##3.7. Although we will not be liable for any loss to you caused by unauthorized use of your Account, you may be liable for loss to us or others caused by such unauthorized use.##3.8. Each time your employees or agents access your Account on your behalf, you are deemed to accept this agreement.####4. Payment##4.1. For each calendar month, or part thereof, during which you have an open Account, you must pay us the monthly licence fee specified in our current price list, unless you and us agree otherwise in writing.##4.2. You must pay us any setup fee which we may specify prior to opening your Account.##4.3. You must pay us for any work we undertake on your request to customize the appearance of your Account interface, in accordance with our usual hourly rates.##4.4. You must pay us for any support services we provide to you pursuant to clause 10.##4.5. All prices in our price lists are in Australian Dollars and include GST where applicable.##4.6. Any amounts due from you to us under this agreement must be paid within 7 days of the date of each invoice we issue to you and in accordance with the payment method specified on each invoice.####5. Intellectual property##5.1. You acknowledge that all copyright (including future copyright) in and to Mercury SMS and the Instructional Materials vests in us, and nothing in this agreement transfers any ownership rights in relation to Mercury SMS or the Instructions Materials to you or any other person.##5.2. Despite clause 5.1, any copyright material which you may provide to us for the purposes of us customizing the appearance of your Account interface will remain the property of its owner.##5.3. By providing us with any copyright material under clause 5.2, you grant us a perpetual royalty-free non-exclusive worldwide licence to use that copyright material to customize the appearance of your Account interface.####6. Information##To the extent permitted by law, you consent to:##6.1. us using your details for statistical, audit, compliance and marketing purposes;##6.2. receiving promotional, marketing material or information updates from us, including by way of electronic communications; and##6.3. disclosure by us of your details to our related bodies corporate.####7. Refund policy##We do not offer any refunds if you change your mind. For Australian consumers, we will meet our obligations regarding refunds under the Competition and Consumer Act 2010 (Cth).####8. Restrictions on use##You must:##8.1. only use, or attempt to use, Mercury SMS in accordance with the functionality and features made available from time to time via your Account;##8.2. not attempt to access or control the Server except access through your Account in accordance with this agreement;##8.3. comply with the current editions of all Instructional Materials provided by us from time to time;##8.4. comply with any operational guidelines or emergency directions issued by us;##8.5. not copy, decompile, replicate, reverse engineer or sublicense the whole or any part of Mercury SMS;##8.6. promptly provide full details to us of any errors, defects or malfunctions you experience or observe while using Mercury SMS;##8.7. not do anything calculated to damage or impair any other end user’s Account or use of Mercury SMS or the Server;##8.8. comply with all applicable laws whenever using Mercury SMS, including the Spam Act 2003 (Cth);##8.9. only use Mercury SMS in relation to your Salesforce.com account, and must comply with any rules or terms which Salesforce.com may publish or prescribed from time to time in relation to your Salesforce account;##8.10. not publish any material which gives rise to, or is likely to give rise to, any civil or criminal liability, including the publication of defamatory material or the infringement of a third party’s intellectual property rights;##8.11. not purport to grant any interest in, sub-license of or derivative right to use Mercury SMS; and##8.12. not do anything that is detrimental to us, our business, our officers, employees, distributors or agents.####9. Instructional Materials##9.1. You may make copies of the Instructional Materials reasonably required for operational use, backup and security or in-house educational and training purposes.##9.2. You may only use up-to-date Instructional Materials, in accordance with any updates or replacements we provide you from time to time.####10. Technical support##10.1. If you request technical support we may choose to provide either:##10.1.1. telephone support; or##10.1.2. email or online support.##10.2. Where we provide technical support we will endeavour to respond to critical requests within 5 working days, however we do not provide any service levels on response times unless we agree otherwise in writing.##10.3. We may refuse to provide application support outside business hours (9am to 5pm AEST) on business days (Monday to Friday, except on public holidays in the State of Victoria Australia).##10.4. We may engage a third party subcontractor to provide technical support services to you on our behalf.####11. Minimum technical requirements##11.1. We may publish minimum technical requirements for the use of Mercury SMS from time to time:##11.1.1. on at least 28 days’ notice in the case of changes that require new or different hardware, or the purchase of new software; and##11.1.2. on at least 7 days’ notice in the case of changes that only involve system reconfiguration, or the installation of free software.##11.2. You will be solely responsible for meeting any minimum technical requirements we may publish from time to time.##11.3. You acknowledge that:##11.3.1. minimum technical requirements are designed to deliver only basic system performance, and that you may require a more powerful computer system and / or faster internet connectivity to achieve the optimal level of performance;##11.3.2. we do not provide service levels or uptime for these services;##11.3.3. scheduled maintenance, emergencies or unscheduled outages may occur from time to time which may leave the services unavailable or with limited functionality; and##11.3.4. access to and use of Mercury SMS may be impaired or prevented by a variety of factors that are beyond our control, for instance defects in your computer system and problems with internet connectivity between you and the Server, and we are not responsible for any such things or their effects.##11.4. Unless we agree in writing (in which case a fee may be payable to us), we are not obliged to make or provide backups of your data while using Mercury SMS.####12. Indemnity, warranties, liability##12.1. To the maximum extent permitted by relevant laws, we exclude all warranties in relation to Mercury SMS, whether express or implied.##12.2. You acknowledge that Mercury SMS may not operate in environments other than as specified in the minimum technical requirements or that its operation may be uninterrupted or error-free.##12.3. To the maximum extent permitted by law, we will not be liable in respect of any misrepresentation, breach of any implied or express warranty or condition, breach of any other provision, or otherwise liable in contract, tort (including for negligence), equity or otherwise for indirect or consequential loss or loss of revenue, profits, goodwill, data or use, however caused which arises out of or in connection with Mercury SMS, whether or not we have been advised of the possibility of such loss.##12.4. You indemnify us against any loss, liability, damage, cost, charge, outgoing or expense we incur or suffer in relation to any claim by any person (whether by allegation, demand, suit, action or other proceeding of any nature), whether arising under contract, tort, equity, negligence or otherwise, arising out of or in connection with any breach by you of this agreement, except to the extent that it is directly attributable to our negligence. Any amount payable by you to us under this clause 12.4 must include any GST that applies to that amount.##12.5 To the full extent permitted by law, the liability of us to you for any matter relating to this agreement, whether based on a claim in contract, negligence, tort, statute or otherwise, is limited in aggregate to an amount equal to the total of the payments made by you to us under this agreement at the first date the matter or matters giving rise to the liability occurs.####13. Termination##13.1. We may terminate this agreement:##13.1.1. immediately with or without notice, if you are, or are reasonably likely to be, in breach of this agreement; or##13.1.2. immediately with or without notice, if an insolvency event occurs in relation to you or your assets; or##13.1.3. on 14 days’ notice to you, for any or no reason;##in which case we must not be liable for any loss, cost or damage to you in respect of such termination.##13.2. You may terminate this agreement by 3 month’s written notice to us.##13.3. Termination of this agreement is without prejudice to any right of action or remedy which has accrued or may accrue in favour of either party as at the date of such termination.##13.4. Upon termination of this agreement:##13.4.1. we may immediately close or suspend your Account;##13.4.2. you may not, unless required by law, access or retrieve any information or material submitted via your Account;##13.4.3. you must, on our request, return or destroy all Instructional Materials (including all copies thereof) in your possession, custody or control; and##13.4.4. the licence granted under clause 2 terminates immediately.####14. Notice##Any notice required under this agreement may only be provided in English and by way of email.####15. Severance##The provisions of this agreement are severable and invalidity of any provision of this agreement will not affect the validity of the remaining provisions.####16. Waiver##Waiver of a breach of this agreement or of any right, power, authority, discretion or remedy arising upon a breach of this agreement, must be in writing and signed by the party granting the waiver and a breach of this agreement is not waived by any failure or delay in exercise, or partial exercise, of a right, power, authority, discretion or remedy under this agreement.####17. Variation##We may vary this agreement by 1 month’s notice to you.####18. Assignment and novation##18.1. You must not assign your rights or novate your obligations under this agreement without our prior written consent.##18.2. We may assign any of our rights and novate any of our obligations under this agreement to any person at any time.####19. Governing law and jurisdiction##This agreement is governed by the laws in force in the State of Victoria, Australia and each party must submit to the non-exclusive jurisdiction of the courts of the State of Victoria (including the Federal Court of Australia).####20. Interpretation##In this agreement:##20.1. ‘Account’ means any account you open pursuant to clause 3;##20.2. ‘Instructional Materials’ means any materials we may provide you regarding how to use Mercury SMS;##20.3. ‘Mercury SMS’ means our online tool which provides SMS message distribution functionality within Salesforce.com, including any customization, modifications, enhancements, adaptations, updates or replacements to it, which is provided on a software as a service basis;##20.4. ‘Server’ means any server on which the underlying software for Mercury SMS is stored or reproduced, including any Salesforce.com server;##20.5. ’us’, ’we’ and ’our’ mean Message4U Pty Ltd (ABN 095 453 362) of Level 24, 367 Collins Street, Melbourne, VIC 3000, Australia; and##20.6. ’you’ and ’your’ means each authorised end user of Mercury SMS.
