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| Terms of Use |
By using the SMS Poll Services (as defined below) which are owned and operated by SMS Poll Pty Ltd. ("SMS Poll") and by accessing the SMS Poll Site located at http://www.smspoll.net, and all linked pages owned and operated by SMS Poll (the "SMS Poll Site"), you agree to be bound by these Terms of Use, as well as any other guidelines, rules and additional terms referenced herein, and all such guidelines, terms and rules are hereby incorporated herein by this reference (collectively, "Terms of Use"). |
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| SMS Poll's on-line services which are available at the SMS Poll Site will, among other things, help you create, customise, manage and administer polls that users can participate in by voting online or by sending mobile text messages ("SMS Poll Service"). These Terms of Use set out the legally binding terms with respect to your use of and our provision of the SMS Poll Site and SMS Poll Services. Please read these Terms of Use carefully. Your access to or use of the SMS Poll Service constitutes your acceptance of all the provisions of these Terms of Use. If you are unwilling to be bound by these Terms of Use, do not continue to access or use the SMS Poll Service. |
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| 1 Definitions |
"Content"means the information, photographs, graphics, and other material on the Website.
"Installation"means all of the computer hardware and software and any other machinery and equipment operated in conjunction with it and used by us to provide the Services.
"Post" means display, exhibit, publish, distribute, transmit and/or disclose information, details and/or other material on the Website, and the phrases "Posted" and "Posting" shall be interpreted accordingly.
"Services" means all or any service provided by us through the Website.
"Website"means our Websites, and includes all web pages controlled by us.
"User" means any person other than you who uses the Services or visits the Website for any purpose.
"we", "us", etc means us. Where the context permits it also includes any business company or individual who shares an interest in the sale of any goods and/or service promoted on the Website. Without limitation, it includes any subsidiary or associated company of ours, together with any licensor, affiliate, or network partner.
"you" "yours" etc, means you, the party to this agreement. |
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| 2 Our contract |
| These terms and conditions regulate the business relationship between you and us. By using our Website, you agree to be bound by them. |
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| 4 Eligibility |
You cannot use the Service, the Website or the Software if you are under the age of 13.
If you are between the ages of 13 and 18 you are deemed to be a “Minor.” You must provide the Agreement to your parent (or legal guardian) who must read, understand and agree to all of the terms and conditions of the Agreement on your behalf.
If you are a Minor and you have chosen to accept these Terms of Use, you are certifying to us that you have your parent's (or legal guardian's) approval and consent to use the Service, the Software and the Website and you represent to us that you and your parent (or legal guardian) have read, understood and agree to be bound by and comply with the Agreement.
If you are a parent (or legal guardian) registering on behalf of the Minor, you agree to be fully responsible for the Minor, and will be bound by the terms and conditions of the Agreement.
If you are a Minor and your parent (or legal guardian) does not agree to (or will not or cannot comply with) all of the terms and conditions of the Agreement for any reason whatsoever, neither you, nor your parent (or legal guardian) may use the Service, the Software, or the Website in any way. |
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| 5 Acceptable use Policy |
You agree to comply with these provisions:
5.1 You will not use or allow anyone else to use the Website to post or otherwise publish:
5.1.1 copyright works;
5.1.2 commercial audio, video or music files;
5.1.3 any material which violates the law of any established jurisdiction;
5.1.4 unlicensed software;
5.1.5 software, which assists in or promotes: emulators, freaking, hacking, password cracking, IP spoofing;
5.1.6 links to any of the material specified in this paragraph;
5.1.7 pornographic material;
5.1.8 any material promoting discrimination or animosity to any person on grounds of gender, rac
colour.
5.2 You will not use the Services for spamming. Spamming includes, but is not limited to:
5.2.1 The bulk sending of unsolicited messages, or the sending of unsolicited emails which provoke
complaints from recipients;
5.2.2 The sending of junk mail;
5.2.3 The use of distribution lists that include people who have not given specific permission to be included
in such distribution process;
5.2.4 Excessive and repeated posting off-topic messages to newsgroups;
5.2.5 Excessive and repeated cross-posting;
5.2.6 Email harassment of another Internet user, including but not limited to, transmitting any threatening,
libelous or obscene material, or material of any nature which could be deemed to be offensive;
5.2.7 The emailing of age inappropriate communications or content to anyone under the age of 18.
5.3 You will not use the Services in a manner, which violates any city, local, state, national or international law or regulation, or which fails to comply with accepted Internet protocol. You will not attempt to interfere in any way with our networks or network security, or attempt to use the Services to gain unauthorized access to any other computer system.
5.4 You will immediately notify us, of any security breach or unauthorised use of your account. You will not interfere in any way with another User(s) use of the Services. You will not resell, rent, lease, grant a security interest in, or make commercial use of the Services without our express written consent.
5.5 You agree not to transfer your email address for gain or otherwise. Transfer of such email address will result in immediate termination of your membership and your contract.
5.6 You agree not to assign, transfer, or authorise any other person to use, your membership. If you try to do so, we have the right to terminate your membership. |
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| 6 Information you give us |
| You agree that you have provided, and will continue to provide accurate, up to date, and complete information about yourself. |
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| 7 System Security |
7.1 You agree that you will not, and will not allow any other person to, violate or attempt to violate any aspect of the security of the Installation;
7.2 You agree that you will, in no way, modify, reverse engineer, disassemble, decompile, copy, or cause damage or unintended effect to any portion of the Website, or any software used on the Website, and that you will not permit any other person to do so.
7.3 You understand that any such violation is unlawful in many jurisdictions and that any contravention of law may result in criminal prosecution.
7.4 Examples of violations are:
7.4.1 accessing data unlawfully or without consent;
7.4.2 attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures;
7.4.3 attempting to interfere with service to any user, host or network, including, without limitation, via
means of overloading, "flooding", "mail bombing" or "crashing";
7.4.4 forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup
posting;
7.4.5 taking any action in order to obtain services to which you are not entitled. |
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| 8 Content and Intellectual Property Rights |
8.1 Title, ownership rights, and intellectual property rights in the Content whether provided by us or by any other content provider shall remain the sole property of us and / or the other content provider. We will strongly protect its rights in all countries.
8.2 You may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Content, in whole or in part, except as is expressly permitted in this agreement.
8.3 You may post into the Services any Content owned by you. You accept all risk and responsibility for determining whether any Content is in the public domain. You grant to us the right to edit, copy, publish, distribute, translate and otherwise use in any medium and for any purpose any Content that you place on the Service. You represent and warrant that you are authorized to grant all such rights.
8.4 You may download or copy the Content only for your own personal use, provided that you maintain all copyright and other notices contained in such Content. You may not store electronically any significant portion of any Content.
8.5 You represent that any user name or email address selected by you, when used alone or combined with a second or third level domain name, does not interfere with the rights of any third party and has not been selected for any unlawful purpose. You acknowledge and agree that if such selection does interfere with the rights of any third party or is being selected for any unlawful purpose, we may immediately suspend the use of such name or email address, and you will indemnify us for any claim or demand that arises out of your selection. You acknowledge and agree that we shall not be liable to you in the event that we are ordered or required by a court or judicial authority, to desist from using or permitting the use of a particular domain name as part of a name or email address. If as a result of such action, you lose an email address, your sole remedy shall be the receipt of a replacement. |
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| 9 Advertising |
| You may have contact with third parties such as our advertisers, sponsors, or promotional partners as a result of your use of the Website ("Advertisers"). All such contact, including the purchase of goods and services from Advertisers, is between you and the Advertisers and we are not responsible or liable to you in any way in connection with these activities or transactions. |
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| 10 Venue Only |
| If you enter into correspondence or engage in commercial transactions with third parties in connection with your use of the SMS Poll Service, such activity is solely between you and the applicable third party. SMS Poll shall have no liability, obligation or responsibility for any such activity. You hereby release SMS Poll from all claims arising from such activity. |
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| 11 Privacy |
| Use of the SMS Poll Site and/or the SMS Poll Service is also governed by our Privacy Policy. |
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| 12 Indemnity |
| You agree to indemnify us against any claim or demand, including reasonable lawyer’s fees, made by any third party due to or arising out of your use of the Services, the breach or violation of this Agreement by you, or the infringement by you, or by any other user of the Services using your computer, of any intellectual property or other right of any person or entity, or as a result of any threatening, libelous, obscene, harassing or offensive material contained in any of your communications. |
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| 13 Interruption to the Service |
13.1 If it is necessary for us to interrupt the Services then we may do so without telling you first.
13.2 You acknowledge that the Services may also be interrupted for reasons beyond our control.
13.3 You agree that we are not liable to you for any loss whether foreseeable or not, arising as a result of interruption to the Services. |
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| 14 Our liability |
14.1 Your use of the Services is without any warranty or guarantee.
14.2 Where we provide a service without specific charge, then it is deemed to be provided free of charge, and not to be associated with any other service for which a charge is made. Accordingly, there is no contractual nor other obligation upon us in respect of any such service.
14.3 We or our content suppliers may make improvements or changes to the Website, the content, or to any of the products and services described on the Website, at any time and without notice to you.
14.4 You are advised that content may include technical inaccuracies or typographical errors.
14.5 We give no warranty and make no representation, express or implied, as to:
14.5.1 the truth of any information given on the Website by any Associate or third party;
14.5.2 any implied warranty or condition as to merchantability or fitness for a particular purpose;
14.5.3 compliance with any law;
14.5.4 non-infringement of any right.
14.6 Much of the material provided on the Website is Posted (and thereby published) by Users. We are under no obligation to monitor, vet, check or approve any such material
We disclaim all responsibility for information published on the Website by any person.
14.7 The Website contains links to other Internet Websites. We have neither power nor control over any such Website. You acknowledge and agree that we shall not be liable in any way for the content of any such linked Website, nor for any loss or damage arising from your use of any such Website.
14.8 In no event shall we or our content suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, loss of data or loss of revenues or profits, whether in an action of contract, negligence or otherwise, arising out of or in connection with the use of the Website or the content available from this Website.
14.9 SMS Poll relies on a third-party SMS gateway for the receiving and sending of SMS messages. And while we will make every attempt to receive and send SMS messages in a timely manner, we shall not be liable for any delays of failed receipt / deliver of messages or any issues, damages, or costs that result from these issues. Further, SMS Poll is not responsible or liable for any costs associated with receiving Results Requests from its members, correctly or incorrectly formatted.
14.10 These disclaimers form an essential part of this agreement. Each sub paragraph in this agreement is independent and severable from each other paragraph and enforceable accordingly. If any restriction is unenforceable for any reason but would be enforceable if part of the wording were deleted, it will apply with such minimal deletions as may be necessary to make it valid and enforceable. |
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| 15 Storage of Data |
15.1 We assume no responsibility for the deletion or failure to store, deliver or timely delivery of messages.
15.2 We may, from time to time and without notice, set limit(s) on the number of messages a User may send, through the service, and we retains the right to delete any emails above such limit(s) without any liability whatsoever, and you hereby release us from any such liability. Any notice provided by us to you in connection with such limit(s) shall not create any obligation to provide future notification regarding any change(s) to such limit(s). |
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| 16 Modification |
| We reserve the right to modify the Services and to change the terms and conditions of this agreement at any time, without notice. Your continued use of the Services after such modifications shall be deemed an acceptance by you to be bound by the terms of the modified agreement. |
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| 17 Termination |
17.1 You may terminate this Agreement at any time, for any reason, with immediate effect. You may terminate the agreement either by sending notices to us by post or email. We reserve the right to check the validity of any request to terminate membership
17.2 We may terminate this Agreement at any time, for any reason, with immediate effect by sending you notice to that effect by email.
17.3 If we terminate, we shall be under no liability to you whatsoever, and you hereby release us from any such liability. |
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| 18 Severability |
| If any of these terms is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms. |
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| 19 Action Limit |
| You and we agree that any cause of action arising out of or related to the Services must commence within one year after the cause of action arose; otherwise, such cause of action is permanently barred. |
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| 20 No duty to monitor |
| We are under no obligation to monitor or record the activity of any customer for any purpose, nor do we assume any responsibility through our AUP or otherwise to monitor or police Internet-related activities. |
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| 21 No Waiver |
| No waiver by us, in exercising any right shall operate as a waiver of any other right or of that same right at a future time; nor shall any delay in exercise of any power or right be interpreted as a waiver. |
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| 22 Relationship of parties |
| Nothing in this agreement shall create a partnership, joint venture or agency or the relationship of employer and employee between us. |
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| 23 Dispute Resolution |
| In the event of a dispute arising out of or in connection with the terms of this Agreement between you and us, then you agree to attempt to settle the dispute by engaging in good faith with us in a process of mediation before commencing arbitration or litigation. |
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| 24 Jurisdiction |
| This Contract shall be interpreted according to the Laws of Australia and the parties agree to submit to the exclusive jurisdiction of the Australian courts. This agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. |
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| 25 Trade Mark Notice |
| This site includes registered trade marks and trade marks which are the subject of pending applications or which are otherwise protected by law including, but not limited to the word SMS Poll and the SMS Poll logo. You may not use these trade marks or the names "SMS Poll" or "SMS Poll Pty Ltd". |
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| 26 Terms of Agreement |
Your Agreement with us remains in full force and effect for as long as you use the Service.
If you breach (or we reasonably believe you have breached or are attempting to breach) the Agreement, we may deactivate, cancel, suspend or terminate your use of the Service and Website without notice to you. We may declare all fees then due to be payable immediately and such deactivation, cancellation, suspension or termination will be without any liability or further obligation of ours of any kind whatsoever to you or any other person. You will not be entitled to a refund of any amounts you have previously paid |
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| This Terms of Use Agreement was last modified on 01 June 2008 and is effective immediately. |
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