Terms of Service

Effective Date: August 11, 2020;
Last updated: August 27, 2020

The following Terms of Service (“Terms”) govern your access to and use of the services and Guni’s websites and applications (the “Services”), and any information, text, multimedia, notifications, SMS and MMS text messages, graphics, or other materials synchronized, uploaded, downloaded or appearing on the Services (collectively referred to as “Content”). Your access to and use of the Services is conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms.

 

1) Basic Terms

 

You are responsible for your use of the Services, for any information or Content you post to or synchronize via the Services, and for any consequences thereof. The Content you submit, post, or display will get transmitted through multiple technology providers and infrastructure systems. You should not be reliant on the Services for any critical text message or SMS communication. Guni may need to store Content on its servers to facilitate the transmission of the messages to your devices. Content is not shared with any third party for any reason without your explicit consent. SMS and MMS text messages are routed through our SMS gateway. Content stored on your computer, tablet, or phone as a result of installing and configuring Guni may be visible to anyone who has access to your computer, tablet, or phone.

You may use the Services only if you can form a binding contract with Guni and are not a person barred from receiving services under the laws of the Australia or other applicable jurisdiction. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.

 

The Services that Guni provides are always evolving and the form and nature of the Services that Guni provides may change from time to time without prior notice to you. In addition, Guni may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally and may not be able to provide you with prior notice. We also retain the right to create limits on use and storage at our sole discretion at any time without prior notice to you.

You represent and warrant that you are an individual person at least 13 years of age (or at least 16 years of age in the European Economic Area). If you are under age 13 (or under 16 in the EEA), you may not, under any circumstances or for any reason, use the Services. We may, in our sole discretion, refuse to offer the Services to any person or entity and change its eligibility criteria at any time. You may not access or use the Services or create an account for unlawful purposes. Your use of the Services and behavior must comply with applicable local or national laws or regulations of your country. You are solely responsible for the knowledge of and compliance with such laws and regulations that are applicable to you.

Provision of Our Services

 

2) The Services

(a) We will provide to you a non-exclusive, non-transferable, licence for the Services subject to the terms of your Customer Contract.
(b) We may provide the Services using such facilities and such Carrier as we choose from time to time.
(c) We may provide the Services using Our Facilities and/or third-party Provider Facilities. Together, we call those Facilities our Network.
(d) Guni uses your mobile operator services to send and receive SMS and MMS messages. You or your business are solely responsible for the use of your network services.

 

3) Prepaid Plans

 

For a Prepaid Plan:

(a) Prepayments are not redeemable for cash or other credit.
(b) Your Prepaid Plan may specify a Use-by Date i.e. a period after which any Prepaid Entitlements that are not used expire without refund. Unless a Plan or your Application Form specifies otherwise, a Use-By Date of one year from the date you last purchased credit under the Account applies to all Prepaid Entitlements under Prepaid Plans.
(c) When your Prepaid Entitlements are used up we may cease providing Service. We are not responsible for the consequences of Service ceasing.

4) Automatic Top Ups for Prepaid Plans

 

(a) Unless you have elected otherwise (by unchecking the appropriate box in your Application Form indicating you do not wish to top up the balance of your Prepaid Entitlements automatically) the automatic top up feature will be enabled. You can disable the auto top up feature at any time by accessing the billing page in your Account.
(b) If the automatic top up feature is enabled then, if the value of the balance of your Prepaid Entitlements falls below $10, the balance of your Prepaid Entitlements will be recharged with the same amount and using the same payment method as your initial purchase.
(c) The automatic top up feature will be disabled if your Prepaid Entitlements have expired.

 

5) Compliance with Policies

 

(a) You must comply with any applicable Acceptable Use Policy we publish on our website or make available to you.
(b) You must comply with any policy we publish on our website or make available to you directed to ensuring that the use of a Service complies with all Laws.

 

6) Operational Directions

 

(a) Acting reasonably, we may give Operational Directions about a Service. Operational Directions will be directed to the safety, security or reliability of Facilities, compliance with Laws or dealing with an emergency. We will only give an Operational Direction as and when reasonably necessary.
(b) You must comply with any applicable Operational Direction.

7) Using a Service

(a) When using a Service, you must comply with:

(i) your Customer Contract (including any applicable Acceptable Use Policy or other policy we provide to you in accordance with clause 9); and
(ii) any applicable Laws.
(b) You must not use a Service, and you must ensure that your End Users do not use a Service:

(i) to send Restricted Content;
(ii) for publishing, reproducing or advertising any message, information, symbol or other communication which is offensive or abusive or of an indecent, obscene or menacing character or for the purpose of causing annoyance, inconvenience or needless anxiety to any person, or for any unlawful purpose;
(iii) to defame any person;
(iv) to breach the rights of any person;
(v) to infringe copyright;
(vi) to create, transmit or communicate communications which are defamatory, obscene, pornographic, discriminatory, offensive, in breach of confidence, illegal or which bring us or any of our Providers into disrepute;
(vii) to host or transmit Content which contains viruses or other harmful code or data designed to interrupt, damage, destroy or limit the functionality of any software, hardware or computer or communications equipment;
(viii) to send, allow to be sent, or assist in the sending of Spam, to use or distribute email harvesting software, or otherwise breach the Spam Act;
(ix) in a way that is misleading or deceptive, where that is contrary to Law;
(x) in a way that results, or is likely to result, in damage to property or injury to any person; or
(xi) in any way that damages or interferes with our Services to other customers, our Providers or any Facilities or exposes us to liability.
(c) You are solely responsible for all acts or omissions that occur under your Account including any password provided to you by us, and the Content of any Messages transmitted through the Service. You acknowledge and agree that any Messages sent using your Account are deemed to have been sent and/or authorised by you.

 

8) Maintenance and faults

(a) From time to time, the Network requires maintenance that may interfere with your Service. We will provide you with notice of any scheduled maintenance where reasonably possible.
(b) Reporting faults
(i) You may report faults in relation to a Service or the Network by contacting our help line during its operating hours.
(ii) Before reporting a fault, you must take all reasonable steps to ensure that the fault is not caused by Equipment, which is not part of the Network.
(iii) You must not report a fault directly to one of our Providers unless we ask you to do so.
(iv) If you report a fault that turns out to be a ‘false alarm’, or not to relate to the Network, we may make a reasonable charge for our effort and expenses in responding to your report.
(c) Repairing faults
(i) We will use reasonable efforts to repair faults in Our Facilities within a reasonable period.
(ii) We will use reasonable efforts to have our Providers repair faults in Provider Facilities within a reasonable period.
(iii) You are responsible for maintaining and repairing your own Equipment.
(d) If you cause a fault or damage to the Network, we may charge you the reasonable cost of repairing it.

 

9) Your cooperation

(a) You must give us all reasonable cooperation that we require in order to provide a Service to You, and fixing any problems that arise, and resolving any disputes that may arise or complaints that you may have.
(b) You acknowledge that, where a Service is a carriage service within the meaning of the Telecommunications Act, we or a Provider may be required to:
(i) intercept communications over the Service, and
(ii) monitor usage of the Service and communications over it.
(iii) retain and store data, including metadata, as required under Data Retention Laws.

 

Confidentiality, Intellectual Property and Privacy

10) Confidentiality

 

(a) Each party (Recipient) undertakes that, in respect of Confidential Information disclosed to the Recipient by the other party (Disclosing Party), it will not disclose Confidential Information except:
(i) for the purpose for which the Confidential Information was disclosed to the Recipient under the terms of the Customer Contract;
(ii) to those employees, officers and agents of the Recipient who need to know the information for the purposes of the Customer Contract, if that person undertakes to keep confidential the Confidential Information;
(iii) to professional advisers and consultants of the Recipient whose duties in relation to the Recipient require that the Confidential Information be disclosed to them;
(iv) with the prior written approval of the Disclosing Party; or
(v) as otherwise required by law to disclose such information.

(b) The parties acknowledge that monetary damages alone would not be adequate compensation for a breach of the obligations of confidentiality under this Customer Contract, and a Disclosing Party is entitled to seek an injunction from a Court of competent jurisdiction on a breach or threatened breach of this clause.
(c) Despite anything else contained in this Customer Contract and in particular in this clause 10, we retain the unconditional and irrevocable right to disclose your identity and address and those of any of your Staff or End Users in the event of any complaint, query or request received from any regulatory or Government body or Carrier, in connection with this Customer Contract.
(d) Nothing in this clause 10 prevents us from naming you as a customer and user of our Services in our marketing materials.

 

11) Intellectual Property

(a) The parties agree that other than as provided in this clause 11, nothing in the Customer Contract transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights of a party.
(b) If a party provides any material to the other party that contains any Intellectual Property Rights which were developed by or on behalf of, or licensed to, the first party independently of the Customer Contract (Pre-Existing Material), then the first party grants to the other party a non-transferable, non-exclusive, royalty-free licence to use, during the term of the Customer Contract, the Pre-Existing Material solely for the purpose of using or supplying the Services under the Customer Contract or otherwise as required by Law.

 

12) Privacy

 

(a) If a party is provided with, or has access to, Personal Information in connection with the Services, it must comply with the Privacy Act and any other applicable law in respect of that Personal Information, whether or not it is an organisation bound to comply with the provisions of the Privacy Act. Details of our Privacy Policy can be found on our
(b) You acknowledge and agree that where you authorise or require us to collect or otherwise deal with Personal Information in your name or on your behalf in connection with providing the Services, that we do so as your agent.
(c) You warrant and represent that:
(i)End Users to whom you send Messages have consented or otherwise opted-in to the receipt of such Messages and the collection of Personal Information as required by the Spam Act or any applicable Law or regulation; and
(ii)you have provided notice to End Users that we will have access to their Personal Information for the purposes of us providing the Services to you and that where our access to Personal Information on your behalf requires the consent of End Users, you have and will obtain this and provide us with evidence on request.
(d) You acknowledge and agree that except as may be required by the Customer Contract, we are not required to take steps to ensure that any Personal Information collected by you has been collected in accordance with the Privacy Act. Further, you indemnify us for any Claim by a third party that it has suffered Loss as a result of a breach of the Privacy Act.
(e) From time to time third parties may recommend our services to new customers. If a third party has referred you to our services we may pay that third party a commission. Any commission paid will not affect the Charges you pay to us. In order to calculate the commission we pay, we may also provide the third party with information about the number of messages you send in a certain period (we will not give them any other information about your Account, message content or other data) and you consent to us doing so.
(f) If the Services or the performance of our respective obligations under this Customer Contract involve any processing of any personal data (as defined in the GDPR) of, or sending Messages to, any individuals in the European Union, then we each agree that we shall comply with the additional terms set out in Parts D and E.

 

Prices, Billing and Payment Terms

 

13) Charges & payment: Prices

(a) You agree to pay our Charges in accordance with the terms of your Contract.
(b) Our current prices as published on our website or otherwise notified to you at any time are referred to as our ‘Price List’.
(c) You are responsible for cost of SMS and MMS services towards your network providers.
(d) You warrant that you will use the Messaging Services exclusively for the sending of Standard Rate Messages containing Unrestricted Content to End Users and, where the Service supports it, receiving Messages from End Users. Network operator may make an extra Charge if you send any Messages that are not Standard Rate Messages.
(e) You must pay for every Message dispatched using the Messaging Services irrespective of receipt by the intended recipient.
(f) Delivery status depends on your network providers. We will provide you status what we receive from mobile SMS application. You can raise request to your network provider for the delivery report.
(g) Any failure by a Carrier to deliver a Message to the intended recipient is beyond our control and you will not hold us liable in respect of any such failure.

 

14) Calculation of number of SMS

 

Information point: The SMS system allows a maximum message size of 160 characters. If a user sends a longer message, the system splits it to two or more separate SMS’s that may be reassembled on delivery so that they appear to be a single message (or, on some handsets, may be delivered as a series of separate SMS). When a longer message is split in this way, the components are no more than 153 characters long, because seven characters are used to facilitate re-joining on delivery. As a result, a longer message will result in more than one SMS being transmitted, and charges apply accordingly, as described in this clause.

Charges for an SMS Service will be based on the number of SMS you send, calculated in accordance with the following rules:

(a) If you include any Unicode characters and send via a Unicode supported service, content that contains no more than 70 characters counts as one SMS. In all other cases, content that contains no more than 160 characters counts as one SMS.
(b) If you include any Unicode characters and send via a Unicode supported service, content that contains more than 70 characters counts as one SMS for each block of 67 characters or part thereof. In all other cases, content that contains more than 160 characters counts as one SMS for each block of 153 characters or part thereof.
(c) A ‘character’ includes each individual letter, digit, punctuation and other symbol in the Content.
(d) Each press of a ‘spacebar’ generates a separate character.
(e) Some special symbols and non-English letters may comprise more than one character and you will be charged accordingly.
(f) Where an SMS is sent to multiple End Users, each one is counted separately.

 

15) Calculation of the size of an MMS

Charges for an MMS Service will be based on the size and number of MMS you send, calculated in accordance with the following rules:

(a) Content that contains no more than 215kB is charged at the Standard Rate (as defined in your Plan or Application Form).
(b) Content that contains between 216kB and 350kB is charged at the First Tier Premium Rate (as defined in your Plan or Application Form).
(c) Content that contains more than 351kB up to 2000kB is charged at the Second Tier Premium Rate (as defined in your Plan or Application Form).
(d) Where an MMS is sent to multiple End Users, each one is counted separately.

 

16) Taxes

 

(a) Amounts payable under the Contract are exclusive of Taxes.
(b) Unless otherwise stated in the Application Form, you shall be responsible for and shall pay all Taxes imposed on or with respect to the Services that are the subject of this Contract whether such Taxes are imposed directly upon you or upon us.
(c) If you are exempt from any such Taxes for any reason, we will exempt you from such Taxes on a going-forward basis once you deliver a duly executed and dated valid exemption certificate to our tax department and our tax department has approved such exemption certificate.
(d) If you are required by law to make any deduction or withholding on account of any Taxes from payments due to us under this Contract, you must increase the payment due so that, after deducting or withholding such Taxes, we receive an amount equal to the amount we would have received had no deduction or withholding been made.

 

17) Your liability to us – General

(a) you must indemnify us for any loss or damage we suffer arising from or in connection with:
(i) your breach of your Contract;
(ii) all Content sent or received on your Account;
(iii) any wilful or negligent act or omission by you, your employees, agents or contractors;
(iv) a Claim against us by your Staff, any End User or any third party arising out of or in relation to your use of the Services and/or Equipment;
(v) your use of the Service in a way that breaches any Law or infringes the rights of any third party; and
(vi) acts or omissions of End Users;
except to the extent that we are negligent or caused or contributed to the loss or damage.
(vii) You are responsible to use of SMS/MMS services from network provide. Your obligation towards cost related to SMS/MMS and data usage to network provider.
(b) Your obligations under this clause survive termination of your Contract.

 

18) Your liability to us – requests for information or evidence

(a) This clause applies where we reasonably incur expense as a result of or in connection with:
(i) a police request for information or evidence in relation to you or your use of a Service; or
(ii) a Court or other competent authority’s direction for provision of information or evidence in relation to you or your use of a Service; or
(iii) a demand from a legal practitioner for information or evidence in relation to you or your use of a Service.
(b) If we incur any expenses under paragraph (a), you must reimburse them on request.
(c) Your obligations under this clause survive termination of your Contract.

 

19) Limitation on Liability

(a) To the maximum extent permitted by law, the parties agree:
(i) that the maximum cumulative liability of a party under or in connection with this Customer Contract (including pursuant to an indemnity) will be the total amount payable to us by you under this Customer Contract in the 12 months preceding the incident or event giving rise to the liability;
(ii) that neither party will be liable to the other party for any loss of profit or indirect loss or consequential loss suffered by the other party arising out of the Customer Contract, whether arising as a result of any act, omission or negligence of a party or otherwise.
(b) Nothing in this document limits or excludes the liability of a party for claims relating to:
(i) personal injury or death directly arising from that party’s negligent acts or omissions;
(ii) infringement of intellectual property rights; or
(iii) fees and Charges payable.

20) No waiver

 

A failure, delay, relaxation or indulgence by us in exercising any power or right conferred under your Contract (such as a right that we have due to your breach of your Contract) does not operate as a waiver of the power or right.

 

21) Entire Agreement

 

These Terms, the Guni Privacy and Cookie Policya are the entire and exclusive agreement between Guni and you regarding the Services (excluding any services for which you have a separate agreement with Guni that is explicitly in addition or in place of these Terms), and these Terms supersede and replace any prior agreements between Guni and you regarding the Services.

We may revise these Terms from time to time, the most current version will always be at https://guni.com.au/tos. If the revision, in our sole discretion, is material we will notify you via the email associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.

If you have any questions about these Terms, please contact us via support@guni.com.au

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