SMS Papa is a service of Bay Call Pty Ltd (ABN 60 104 926 678) of Suite 18, 281-287 Sussex Street, Sydney NSW 2000, Australia (“Bay Call”, “we”, “us”). These Terms of Service (“Terms”) govern your access to and use of the SMS Papa website, platform, API and related SMS services (together, the “Service”).

By registering an account, purchasing message credits or using any part of the Service, you (“the Customer”, “you”) agree to be bound by these Terms. If you are entering into these Terms on behalf of a company or other organisation, you confirm that you have authority to bind that organisation. If you do not agree to these Terms, do not use the Service.

1. The Service

1.1 The Service comprises a web portal, a REST API, SMS gateway access, delivery reporting, inbound message handling, virtual mobile numbers, Sender ID registration services and related documentation, as described on the SMS Papa website and in the API documentation published on that website.

1.2 You are responsible for obtaining and maintaining the hardware, software and internet connectivity needed to access the Service, and for any third-party charges you incur in doing so.

1.3 We will use commercially reasonable efforts to make the Service available at all times. Unless a signed service agreement between you and Bay Call provides otherwise, we do not guarantee continuous or uninterrupted availability of the Service or of any particular feature.

1.4 We may improve, modify or discontinue features of the Service from time to time. Where a change would materially reduce the functionality you rely on, we will give you reasonable notice by email or through the Service.

2. Accounts and security

2.1 To use the Service you must register an account and provide accurate, current and complete information, and keep it up to date.

2.2 You are responsible for maintaining the confidentiality of your account credentials, including your password and API secret, and for all activity that occurs under your account. You must notify us immediately at sales@smspapa.com.au if you become aware of any unauthorised use of your account.

2.3 We may suspend an account where we reasonably believe it has been compromised, pending verification with you.

3. Message credits, pricing and payment

3.1 The Service is provided on a prepaid basis. You purchase message credits in advance and credits are deducted as messages are sent, at the rates published on the SMS Papa website or set out in a quotation or service agreement issued to you.

3.2 One message part is a single SMS segment of up to 160 GSM-7 characters, or 70 characters where the message contains Unicode characters. Longer messages are split into, and charged as, multiple message parts, as described in the API documentation.

3.3 Prepaid credits remain valid indefinitely provided at least one message is sent from the account in every period of 180 consecutive days. If no message is sent for 180 days, unused credits expire and are removed from the account.

3.4 Payment is deemed made when cleared funds are received by Bay Call. Prices published on the website include GST unless stated otherwise. Prices set out in a quotation or service agreement are as stated in that document.

3.5 We may change published prices at any time by updating the website. Pricing agreed in a signed quotation or service agreement may only be changed in accordance with that document.

3.6 Prepaid credits are non-refundable and non-transferable, except as required by law or in the single circumstance set out in clause 8.4. Without limiting this, no refund is payable where you stop using, or are no longer able or permitted to use, the Service for reasons arising from your own business, policies, decisions or circumstances, including a change of ownership, a change of internal policy, a direction from a franchisor, head office or other third party, or the closure of your business.

4. Sender IDs and virtual numbers

4.1 Messages may be sent from (a) a virtual mobile number allocated to you by Bay Call, (b) a mobile number that you own and have verified with us, or (c) an alphanumeric Sender ID.

4.2 Alphanumeric Sender IDs must be registered on the ACMA SMS Sender ID Register. Where you request an alphanumeric Sender ID, Bay Call will lodge and manage the registration on your behalf. You warrant that you are entitled to use the brand, business name or trade mark represented by the Sender ID, and you must provide any evidence of that entitlement that we or the Register reasonably require.

4.3 We do not guarantee that a requested Sender ID will be approved by the Register or accepted by every mobile network. Messages sent from an unregistered or unverified sender may be blocked, delayed or labelled by Australian mobile networks in accordance with their obligations.

4.4 You must not use any Sender ID or number that misrepresents the identity of the sender. Any attempt to spoof or forge a sender identity is a material breach of these Terms and will result in immediate suspension of your account and forfeiture of remaining credits.

4.5 Virtual mobile numbers are allocated for the period paid for and remain the property of Bay Call and its carrier partners. Where a virtual number is not renewed it may be reallocated after expiry.

5. Acceptable use and compliance

5.1 You must comply with all laws applicable to your use of the Service, including the Spam Act 2003 (Cth), the Privacy Act 1988 (Cth), the Telecommunications Act 1997 (Cth) and applicable industry codes including C661:2022 Reducing Scam Calls and Scam SMs.

5.2 In particular, you must not use the Service to:

1. send commercial electronic messages without the consent of the recipient, or without a functional unsubscribe facility and accurate sender identification, as required by the Spam Act 2003;

2. send unsolicited, bulk, duplicative or misleading messages of any kind;

3. harvest or collect mobile numbers or other personal information without the consent of the individuals concerned;

4. send content that is unlawful, defamatory, harassing, threatening, obscene, fraudulent or that infringes the intellectual property or other rights of any person;

5. impersonate any person or organisation or misrepresent the origin of a message;

6. transmit malicious code or interfere with the Service, our networks or the networks of any carrier; or

7. attempt to gain unauthorised access to the Service or to any other account or system.

5.3 You are solely responsible for the content of the messages you send, for obtaining and recording the consent of recipients, and for honouring opt-out requests. Where automated STOP handling is provided on a virtual number, you must not send further marketing messages to a recipient who has opted out.

5.4 We may monitor traffic patterns and message content to the extent necessary to detect scams, spam and breaches of these Terms, and to comply with our own legal and industry-code obligations. We may cooperate with carriers, the ACMA and law enforcement in relation to suspected unlawful use.

6. Privacy and data

6.1 Bay Call handles personal information in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles.

6.2 Message content, recipient numbers and account data are processed and stored on infrastructure located in Australia. Message records are retained for the period stated in our documentation and are then deleted or de-identified.

6.3 We will not disclose your account information or message content to third parties except (a) to our carrier partners to the extent necessary to deliver messages, (b) where required by law, court order or regulatory authority, (c) to investigate a complaint or suspected breach of these Terms, or (d) with your consent.

6.4 Where you provide personal information about recipients to us, you warrant that you have collected it lawfully and are entitled to provide it to us for the purpose of sending messages.

7. Intellectual property and licence

7.1 Bay Call and its licensors own all intellectual property in the Service, including the platform, API, documentation, SDKs and software. Subject to these Terms, we grant you a non-exclusive, non-transferable, revocable licence to use the Service for your own business purposes during the term of your account.

7.2 You must not reverse engineer, copy, resell or sub-license the Service, or remove any proprietary notices, except as expressly permitted by us in writing.

7.3 You retain ownership of your message content and contact data.

8. Suspension and termination

8.1 You may close your account at any time by contacting us at sales@smspapa.com.au.

8.2 We may suspend or terminate your account immediately if you breach these Terms, if your use of the Service exposes Bay Call or its carrier partners to legal or regulatory risk, or if we are required to do so by a carrier, the ACMA or by law. Where practicable we will give you notice and an opportunity to remedy the breach.

8.3 We may also terminate these Terms for convenience on 30 days’ written notice.

8.4 Refunds of unused credits are payable only where the Service has materially failed to perform as described in these Terms and the applicable documentation, you have notified us of the failure in writing, and we have not remedied it within 30 days of that notice. In that case we will refund the monetary value of your unused prepaid credits, less reasonable costs of processing the refund. No refund is payable in any other circumstance, including where (a) you close your account under clause 8.1, (b) we suspend or terminate your account for your breach of these Terms, (c) we terminate for convenience under clause 8.3 and you have had the opportunity to use your credits during the notice period, or (d) you cease using the Service for any of the reasons described in clause 3.6. Subject to clause 9.1, a refund under this clause is your sole and exclusive remedy for a failure of the Service, and Bay Call has no further liability to you in respect of that failure.

8.5 Termination does not affect any rights or obligations accrued before termination, including your obligation to pay any outstanding charges.

9. Warranties and liability

9.1 Nothing in these Terms excludes, restricts or modifies any guarantee, right or remedy conferred by the Australian Consumer Law or any other law that cannot lawfully be excluded.

9.2 Except as set out in clause 9.1 or in a signed service agreement, the Service is provided “as is” and we exclude all other warranties, whether express or implied, including as to availability, delivery times or fitness for a particular purpose. SMS delivery depends on mobile networks and handsets outside our control, and we do not warrant that any particular message will be delivered or delivered within a particular time.

9.3 The Service is not designed for use in circumstances where a failure or delay in delivery could result in death, personal injury or severe damage, including emergency notification, life-safety or critical-control applications, and must not be used for those purposes.

9.4 To the extent permitted by law, Bay Call will not be liable to you or to any third party for any indirect, incidental, special, punitive or consequential loss or damage of any kind, or for any loss of profit, revenue, business, contracts, anticipated savings, data or goodwill, or for the cost of procuring substitute services, whether arising in contract, tort (including negligence), statute or otherwise, and whether or not Bay Call was advised of the possibility of that loss. This exclusion applies in particular to any loss arising from a message that is delayed, not delivered, delivered to the wrong recipient or delivered more than once, and from any interruption, suspension or termination of the Service.

9.5 To the extent permitted by law, Bay Call’s total aggregate liability arising out of or in connection with these Terms and the Service, whether in contract, tort (including negligence), statute or otherwise, is limited to the total fees paid by you for the Service in the three months immediately preceding the event giving rise to the claim.

10. Indemnity

You indemnify Bay Call, its officers, employees and carrier partners against any claim, loss, liability, cost or expense (including reasonable legal costs) arising from (a) the content of messages sent from your account, (b) your breach of these Terms or of any applicable law, including the Spam Act 2003, or (c) any third-party claim arising from your use of the Service.

11. Changes to these Terms

11.1 We may amend these Terms from time to time. We will publish the amended Terms on the SMS Papa website and, where a change is material, give you at least 30 days’ notice by email or through the Service before it takes effect.

11.2 Your continued use of the Service after the effective date of an amendment constitutes acceptance of the amended Terms. If you do not accept an amendment you may close your account under clause 8.1 before it takes effect.

11.3 Amendments to these Terms do not vary the terms of any signed quotation or service agreement between you and Bay Call.

12. General

12.1 Precedence. If you have entered into a signed quotation or service agreement with Bay Call, that document prevails over these Terms to the extent of any inconsistency. Otherwise these Terms constitute the entire agreement between you and Bay Call in relation to the Service.

12.2 Governing law. These Terms are governed by the laws of New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts of New South Wales and the courts entitled to hear appeals from them.

12.3 Notices. Notices to Bay Call must be sent to sales@smspapa.com.au or to the postal address above. Notices to you will be sent to the email address registered on your account and are deemed received when sent.

12.4 Assignment. You may not assign your rights under these Terms without our written consent. We may assign these Terms to a related body corporate or to a purchaser of the business.

12.5 Severability and waiver. If any provision of these Terms is unenforceable, it is to be read down or severed to the extent necessary, and the remaining provisions continue in force. A failure to enforce a right is not a waiver of it.

12.6 Relationship. Nothing in these Terms creates a partnership, joint venture, agency or employment relationship between the parties.

13. Reporting misuse

We take scam and spam prevention seriously. If you believe you have received an unsolicited or fraudulent message sent through the Service, please contact us at sales@smspapa.com.au or call 02 9283 9292, or report it to Scamwatch (www.scamwatch.gov.au).

Bay Call Pty Ltd · ABN 60 104 926 678 · Suite 18, 281-287 Sussex Street, Sydney NSW 2000 · Tel 02 9283 9292 · sales@smspapa.com.au