Terms & Conditions
1 Acceptance of these Terms and Conditions, Licensing Agreement and Intellectual Property
1.1 These Terms and Conditions apply to all Services provided to You by redcoal Pty Ltd (redcoal), ABN 68 090 244 590, and its agents. By signing a redcoal Contract and/or commencing use of redcoal Services, You agree and accept these Terms and Conditions and certify to redcoal that You can act on behalf of the account holder.
1.2 You agree that, where applicable, each end user of the redcoal Services enters into a licence agreement with redcoal in relation to the use of software provided by redcoal (“Software”) in connection with the Services. The terms of the licence agreement will be as notified to each end user prior to that end user’s commencement of use of the Software. I agree that each end user of the Software complies with the terms of the licence agreement.
1.3 redcoal grants to You a non-exclusive, non-transferable license to use the Intellectual Property Rights in and to the redcoal Facilities for the sole purpose of using the redcoal Service.
2.1 You will be charged for each originating message of up to 160 characters sent to a mobile phone, per individual recipient whether or not it is received. For example, if a Client sends a message to a group of 10 mobile numbers the charge will be for 10 messages.
2.2 The charge per message sent of up to 160 characters is dependent on the pricing plan selected by You or as stated in any Contract with redcoal signed by You.
2.3 SMS messages are charged regardless if successfully delivered or not. It may take up to 8 days from the original send date for message charges to be applied.
2.4 The prices for Services are specified in the Contract. All prices are stated in Australian dollars and exclude GST.
2.5 redcoal reserves the right to vary the per SMS fee, with effect from 7 days of giving written notice to You. Such notification can be provided via email, fax or mail, and does not require confirmation from the customer. If redcoal prices increase by more than 3 cents per message, above the Australian annual inflation at the date of the increase, the customer may terminate the contract within fourteen (14) days of receiving redcoalís notice of price change. The termination will take effect from the day when the price change shall become effective.
3 Security and Access
3.1 You may not access the redcoal Facilities for any purpose other than as agreed and You must comply with all reasonable directions of redcoal when accessing the redcoal Facilities.
3.2 You must not use Your access, the Service or connection to the redcoal Facilities to:
a) circulate or send any unsolicited or unauthorised marketing, publicity or advertising material message to any person, including a message that is designed to promote goods or services (“Marketing Message”) to any person, unless that person has consented to receiving the Marketing Message, has a means to opt-out of receiving such a Marketing Message and the Marketing Message clearly identifies the source or originating entity of the Marketing Message;
b) transmit computer worms or viruses;
c) access, any other redcoal computer system or network without redcoal’s consent or disrupt or damage any redcoal computer systems or network;
d) ) forge any messages; or
e) send any obscene, sexually explicit, abusive or defamatory material or material that violates any Commonwealth, State, Territory or local law or regulation or is contrary to any Code of Conduct issued by the Telephone Information Services Standards Council.
3.3 redcoal may immediately suspend your access to the redcoal Facilities if you misuse the redcoal Facilities or fail to comply with your obligations under this clause 3.
3.4 If you are unable to rectify in 20 Business Days and to redcoal’s reasonable satisfaction, the matter or breach giving rise to a suspension, redcoal may immediately end the Contract by written notice to you. Such termination is without prejudice to any rights, obligations or liabilities arising prior to such termination.
3.5 You are responsible for the security of the ID and password redcoal issues to You for access the redcoal Facilities. Redcoal may withdraw Your ID or password at any time.
4.1 Where GST is imposed on the supply of a Service by redcoal to You, and the consideration for the supply under any part of the Contract is not expressed to be inclusive of GST, You must pay in addition to any GST exclusive consideration payable for the supply, an additional amount calculated by multiplying the value of that GST exclusive consideration (without deduction or set-off) by the prevailing GST rate. Any amount of GST payable by You on a Service (including in circumstances where the consideration is expressed to be inclusive of GST) is payable upon demand whether such demand is made by means of a tax invoice or otherwise. You will be provided with a tax invoice for any taxable supply made to You.
5 Credit Management & Billing Disputes
5.1 redcoal may at any time review Your creditworthiness (including by seeking information or advice from third parties such as credit reporting agencies or credit providers) and You agree to:
a) promptly co-operate with any creditworthiness review by providing redcoal with such information, authorisation or consent redcoal requires for the purposes of the review; and
b) provide Security if requested by redcoal.
5.2 redcoal may call upon the Security, provided by You to redcoal, to pay any amounts due to redcoal if:
a) fail to pay any sum due, by the due date; or
b) You commit an act of insolvency.
5.3 Unless redcoal gives notice to the contrary, You must pay to redcoal on demand all taxes imposed on or payable by redcoal on or in respect of or in connection with any Security provided by You.
5.4 You may dispute an invoice amount but only if you do so in accordance with this clause. Except to the extent that You raise a valid billing dispute in respect of an invoice, you agree that the invoice is valid and payable, and You must pay any undisputed amount included in the invoice in accordance with the payment terms. To raise a valid billing dispute You must:
a) make a good faith request to redcoal and/or its billing agent to investigate the specific charges or invoice, providing at the same time specific evidence that demonstrates that a particular charge or invoice is incorrect; and
b) make any such request to redcoal and/or its billing agent within 12 months of the date of the relevant invoice.
5.5 You may only make a claim or commence proceedings alleging that any charge or invoice is incorrect, or that You are entitled to a refund for overpayment, if You do so within 12 months of the date of the invoice or overpayment. If You raise a valid billing dispute, then redcoal and/or its billing agent will conduct investigations which are reasonably necessary and appropriate in the circumstances of the dispute. At the end of these investigations, You will pay any outstanding amount (together with interest on that amount calculated in accordance with the payment terms from the original due date for payment) by five Business Days. redcoal may invoice You a daily professional services charge to audit and validate any non-redcoal or non-billing agent analysis of the disputed amount. You will pay any professional services charge in accordance with the payment clause.
6 Privacy and Confidentiality
6.1 You must at all times comply with Privacy Laws in relation to Personal Information, whether or not You are an organisation bound by the Privacy Act. If You are a small business operator under the Privacy Act, then You agree to choose to be treated as an organisation bound by the Privacy Act in accordance with Section 6EA of the Privacy Act.
6.2 You must not disclose redcoal’s Confidential Information except:
a) with redcoal’s consent;
b)if disclosure is required by law or is in connection with legal proceedings relating to the Service and/or Contract.
6.3 You must, on redcoal’s request, deliver to redcoal all documents or other materials containing or referring to redcoal’s Confidential Information in Your possession, power or control or in the possession, power or control of persons who have received Confidential Information from You.
6.4 You acknowledge that a breach of this clause 6 may cause redcoal irreparable damage for which monetary damages would not be an adequate remedy. In addition to other remedies that may be available, redcoal may seek and obtain injunctive relief against such a breach or threatened breach.
7 Term and Termination
7.1 The Contract will begin when redcoal notifies You that your application has been approved, or when a Contract is signed, and will continue until You or redcoal end it by written notice under clause 7.2 or 7.3, or when the Contract expires.
7.2 redcoal may end the Contract immediately if:
a) (breach of term) You are in breach of any term and such breach is not remedied within 20 Business Days of written notice by redcoal to do so;
b) (receivership, liquidation, administration or arrangement) a receiver, liquidator, provisional liquidator or administrator is appointed over any of Your undertakings or assets or if You enter into any arrangement with any creditors or any class creditors;
c) (illegality) it becomes unlawful for You to perform Your obligations or the performance by a party of their obligations is in breach of a law; or
d)(IT system at threat) You threaten the operation, technical integrity or liability of the redcoal Facilities in the reasonable opinion of redcoal.
7.3 Unless stated otherwise in the customer Contract, either party may end the Contract at any time by providing 30 Business Days written notice to the other party.
7.4 When the Contract ends:
a) redcoal will immediately remove access to and disconnect Your Facilities from the redcoal Facilities;
b) You must return and/or destroy all material provided by redcoal to You; and
7.5 Any termination is without prejudice to any rights, liabilities or obligations accruing as at such termination.
8 Internet, SMS Delays and Location Information
8.1 The Service may be subject to limitations, delays and other problems inherent in the use of the Internet and Carrier SMS networks and location technology. redcoal is not responsible for any delays, delivery failures, or other damage resulting from such problems.
9 Force Majeure
9.1 Despite any other provision in the Contract, including this Terms and Conditions, no party need act if it is impossible to act due to any cause beyond its control (including war, riot, natural disaster, labour, dispute, or law taking effect after the date of the Contract provided the party uses its reasonable endeavors to overcome the act or matter impacting on its ability to perform hereunder. This clause 9 does not excuse a party from a failure to pay any money, which it is obliged to pay.
10.1 These Terms and Conditions and the Contract constitute the entire agreement between the parties and supersede all prior representations, agreements, statements and understandings, on anything connected with that subject matter.
10.2 redcoal reserves the right to vary these Terms and Conditions from time to time.
10.3 You may not assign, novate or transfer any of Your rights and/or obligations without redcoal’s prior written consent.
10.4 No rights are waived except by notice in writing signed by each party. Any failure by a party to enforce any clause of the Contract (which includes these Terms and Conditions), or any forbearance, delay or indulgence granted by that party is not a waiver of its rights.
10.5 The provisions of the Contract (including these Terms and Conditions) must not be varied by You, except by agreement in writing signed by the parties.
10.6 Clauses 1 (Acceptance of these Terms and Conditions, Licensing Agreement and Intellectual Property Rights), 4(GST), 5 (Credit Management and Billing Disputes), 6 (Privacy and Confidentiality), 7 (Term and Termination), 8 (Internet, SMS Delays and Location Information) 9 (Force Majeure), 10 (General) and 11 (Glossary) continue after the Contract ends.
10.7 These Terms and Conditions and the Contract are governed by the laws of New South Wales Australia. You submit to the exclusive jurisdiction of the courts of New South Wales.
10.8 Notices under these Terms and Conditions and the Contract may be delivered by hand, by mail or by facsimile to:
redcoal Pty Ltd
Suite 602A/97 Pacific Highway
Fax: +61 2 8915 1497
(At Your current account holder address.)
10.9 Notice is given:
(a) (hand delivery) in the case of hand delivery, when an officer or other duly authorised employee, agent or representative of the receiving party acknowledges receipt in writing;
(b) (post) in the case of posting, 3 Business Days after dispatch; and
(c) (facsimile) in the case of facsimile, when the transmission is received on a Business Day or otherwise at the commencement of the first Business Day following transmission.
11 Glossary Of Terms
has the same meaning as in the GST Act.
means all redcoal or third party equipment, networks, computer programs, supporting documentation and procedures, used by redcoal to transmit SMS Messages over the GSM/3G or similar network.
means a software application that receives, processes and sends information between Your Facilities and the redcoal Facilities for the redcoal SMS Service.
means the application form to apply to use the Service.
means a day not being a Saturday, Sunday or public holiday in New South Wales.
means all confidential, non-public or proprietary information disclosed by redcoal to You before, on or after the date redcoal notifies You it has approved Your Application Form relating to the business, technology or other affairs of redcoal but excludes information:
(a) which is in or becomes part of the public domain other than through breach of the Contract or an obligation of confidence owed to redcoal;
(b) which You can prove by contemporaneous written documentation was already known to You at the time of disclosure by redcoal (other than if such knowledge arose from disclosure of confidential information in breach of an obligation of confidentiality); or
(c) which You acquire from a third party entitled to disclose it.
(a) redcoal application forms;
(b) these Terms and Conditions; and
(c) Any other redcoal agreements signed by You.
Credit Information means:
(a) identity particulars (name, address, and date of birth);
(b) Your application for credit or commercial credit, including the amount applied for;
(c) the fact we are a current credit provider to You;
(d) payments which are overdue by more than 60 days and for which debt collection has commenced;
(e) advice that payments are no longer overdue in respect of a default which has been listed;
(f) information that, in the opinion of us, You have committed a serious credit infringement; and
(g) cheques drawn by You for more than $100 and which have been dishonoured more than once.
means the tax imposed by the GST Act and the related imposition Acts of the Commonwealth.
means the A New Tax System (Goods and Services Tax) Act 1999 (Cth), as amended from time to time. GST Exclusive Consideration means any consideration payable that either does not include an amount referable to GST or, if the consideration is inclusive of GST, is that consideration excluding the amount referable to GST using the rate of GST in force at the time the parties agreed on the consideration.
Intellectual Property Rights
means all rights conferred under statute, common law and equity in and in relation to inventions, designs, trade marks, trade names, logos, and get up, circuit layouts, semi-conductor and copyright and any other intellectual property rights including moral rights, confidential or other proprietary rights, or other rights to registration of such rights.
means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion, which You receive from any source as a consequence of the performance of Your rights and obligations.
means the Privacy Act 1988 (Cth).
means the Privacy Act and any other legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to Personal Information.
means an unconditional bank guarantee in favour of redcoal from an Australian licensed bank in Australia, payable in Australian dollars, on demand or other security as agreed in a form approved by redcoal and includes any increase to existing security.
means Short Message Service.
means an alphanumeric message sent to an SMS compatible mobile phone handsets of end-users over the GSM/3G or similar network.
means any product provided by redcoal for your enjoyment, including but not limited to: (a) EmailSMS and its components;
(b) 1300 SMS
(d) MIDA API & Gateway
(e) Professional Services
(f) Other products provided by redcoal.
has the same meaning as in the GST Act.
means the entity identified as the “merchant” in the Application Form and “Your” has a corresponding meaning.
means material owned or licensed by You (including Your IT Systems Content, documentation, templates and data; and web site) which is used by either party in the performance of its obligations and any modifications made to the same.
Your IT Systems
means all Your or third party equipment, networks, computer programs, supporting documentation and procedures, used by You and required to give effect to Your obligations, as described in the Specifications.