Last updated: September 2016
ClickSend provides its services to you subject to the following terms and conditions. If you visit or conduct electronic transactions in any way at ClickSend, you accept and agree to abide by these terms and conditions.
The following terms are used throughout this document:
ClickSend provides users with a variety of tools and resources to collect visitor mobile numbers and to create, launch, and manage online SMS campaigns (the “Services”). This service may not be used for the sending of unsolicited SMS (sometimes called “spam”). See our Anti-Spam Policy. The following are the terms and conditions for use of the Services. By signing this document or after logging in for the first time, you accept these terms and conditions.
1.1 The Services are provided subject to this Agreement, as it may be amended by ClickSend, and any guidelines, rules or operating policies that ClickSend may establish and post from time to time (the “Agreement”). By posting updated versions of the Agreement at the ClickSend web site, or otherwise providing notice to you, ClickSend may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Services at its sole discretion. All such changes shall become effective upon posting of the revised Agreement on the Service.
1.2 The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, please do not use the Services.
1.3 The Services enable corporate web sites, small business web sites, and community sites to sign up web site visitors, collect and retrieve visitor sign-up data, and develop and execute SMS communications with visitors and other targeted prospects
1.4 Both the number of SMS messages sent and the number of chracters of data transferred are metered by ClickSend. Normal ClickSend accounts allow you to send an unlimited number of SMS messages provided your account has enough credit.
1.5 You must complete the registration form on the Sign Up page in order to use the Services. You will provide true, accurate, current, and complete information about yourself as requested in the registration form. As part of the registration process, you will identify an email address and password for your ClickSend account. You are responsible for maintaining the security of your account, passwords, and files, and for all uses of your account and of the Services in your name. ClickSend reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.
2.1 This is an Agreement for Services, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services (“Software”); remove any proprietary notices or labels from the Services or any Software, modify, translate, or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software. The Services shall be used for business purposes only, strictly no personal use unless prior approval from ClickSend given.
2.2 You acknowledge and agree that the Services and the ClickSend company names and logos and all related product and service names, design marks and slogans, are the property of ClickSend or its affiliates or suppliers (collectively, the “Marks”). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of ClickSend. Your use of the Services confers no title or ownership in the Service, the Software or the Marks and is not a sale of any rights in the Service, the Software or the Marks. All ownership rights remain in ClickSend or its third party suppliers, as the case may be.
2.3 You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). You agree you will not access or otherwise use third party contact lists in connection with preparing or distributing unsolicited messages to any third party. You hereby agree to indemnify and hold harmless ClickSend against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. Although ClickSend has no obligation to monitor the content provided by you or your use of the Services, ClickSend may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.
2.4 The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates Australian federal, state or other laws that may apply in your local area is prohibited. This may include material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights.
2.5 In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to ClickSend. ClickSend may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Service, or communicate separately with you.
2.6 ClickSend will not use any of your subscriber lists or any other customer information for any other purposes than those intended with the service. Your customer information will not be shared with any other parties. In addition, ClickSend will not use your customer information for the purpose of sending unsolicited commercial messages.
2.7 You will comply with Anti-Spam and Privacy legislation and guidelines, applicable to the jurisdictions in which messages are sent and received.
2.8 You may not use ClickSend to distribute illegal contests, pyramid schemes, chain letters, or multi-level marketing campaigns.
2.9 You may not use ClickSend to send message campaigns that link to or display nudity, obscene content, gambling related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that we deem inappropriate.
3.1 You may terminate this Agreement at any time by contacting us. Correspondence must include your first name, last name, and ClickSend username. No refunds will be issued if you terminate this agreement.
3.2 ClickSend may terminate this Agreement or the Services at any time with or without cause, and with or without notice. ClickSend shall have no liability to you or any third party because of such termination. If ClickSend terminates this agreement because you violated the Anti-Spam policy, no refund will be issued.
3.3 ClickSend may delete any of your archived data within 30 days after the date of termination. All sections of this Agreement which by their nature will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. CLICKSEND DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND CLICKSEND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Your sole and exclusive remedy for any failure or nonperformance of the Services shall be for ClickSend to use commercially reasonable efforts to adjust or repair the Services.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL CLICKSEND OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “CLICKSEND”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF CLICKSEND SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, CLICKSEND IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF CLICKSEND TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
6.1 ClickSend provides an SMS service that sends messages to mobile phones using established carriers and aggregation companies. The provision of the SMS service is subject to the following Terms of Service.
6.2 You acknowledge that ClickSend delivers SMS messages via major telecommunications companies and mobile network providers and can therefore only influence the delivery transmission of SMS messages within the technical constraints imposed by the above mentioned providers. SMS messages submitted via the Internet will be transferred to the addressed mobile recipients in due course, provided that the recipient’s phone is switched on and located in an area covered by his subscribed mobile network provider. You acknowledge that, depending on the recipient’s mobile provider service, it may not be possible to transmit the SMS message to the recipient successfully. ClickSend neither claims nor guarantees either availability or performance of this service. While ClickSend makes every effort to deliver the message promptly, ClickSend accepts no liability for transmission delays or message failures.
6.3 ClickSend debits transmitted SMS messages according to its transmission logs. These logs are deemed correct and valid even if the customer has objected to the correctness of the accounting records, except if ClickSend’ investigations have produced evidence of technical problem or error. Because ClickSend cannot guarantee delivery of the SMS messages to the recipients due to possible errors on the part of the mobile network providers, ClickSend will not refund undeliverable SMS messages to you.
6.4 You agree that all activities, which can be traced to your username and password, are deemed as having been performed by yourself and are legally binding to you.
You may not remove or export from Australia or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of Australia or any other applicable country.
8.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
8.2 ClickSend and you agree that the Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
8.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind ClickSend in any respect whatsoever.
8.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
8.5 The Agreement shall be governed by the laws of the State of WA Australia without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Perth, Western Australia.
It is understood that in order to use ClickSend, a Windows PC or Mac with Internet Explorer 7.0, Safari 3.0 and Firefox 2.0 or higher must be used. Additionally, a stable connection to the Internet is recommended. ClickSend may work in a limited manner on other platforms, but there is no guarantee of functionality at any time. Additionally, ClickSend may work in a limited manner on a non-Internet Explorer web browser (such as Netscape Navigator), but there is no guarantee of full functionality on any web browsers.
All ClickSend customers must follow the rules of the federal SPAM act and the Anti-Spam aspects of this agreement when sending messages through the service. Accordingly, we require the following of messages sent through the ClickSend system:
These guidelines will help ensure that ClickSend maintains its reputation and white-listing status with a number of major carriers and whitelisting programs. If at any time your campaign is flagged as SPAM by a carriers subscribers, ClickSend reserves the right to cancel your account without notice.
11.1 Every message that contains marketing related content sent in connection with the Services must contain an “Opt Out” mechanism that allows subscribers to remove themselves from your contact list. Each such mechanism, must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to ClickSend. You acknowledge and agree that you will include and not remove, disable or attempt to remove or disable this mechanism.
11.2 You agree to import, access or otherwise use only permission-based contact lists. Purchased contact lists are prohibited.
11.3 You are responsible for monitoring, correcting, processing Opt Out requests within 10 days, and updating the mobile numbers to which messages are sent through your ClickSend account. ClickSend has tools available for managing opt-outs for you.
11.4 Messages that you send through the Service may generate abuse complaints from recipients. You are responsible for ensuring that your message campaigns do not generate a number of abuse complaints in excess of industry norms. ClickSend, in its sole discretion, shall determine whether your level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement.
11.5 ClickSend, at its own discretion, may immediately disable your access without refund to the Services if ClickSend believes in its sole discretion that you have violated any of the message and permission practices listed above, or the ClickSend Anti-Spam Policy.
A standard SMS message has a maximum of 160 characters. Longer messages are definitely possible, however please be aware that exceeding 160 characters will constitute a ‘second’ message. The end user will see this as 1 long message on their handset. When a message is longer than 160 characters, this is referred to as a multi-part message as it contains multiple messages (or multiple-parts). The total SMS limit then becomes 153 characters per ‘part’ as the 7 characters are used up by invisible headers and footers which denote which part of the message is being sent (i.e. Part 1 of 2). For example: If a message is longer than 6 message parts, it will be truncated (see below). If a message contains any characters that aren’t in the GSM 03.38 character set, the message type will be treated as unicode. (https://en.wikipedia.org/wiki/GSM_03.38).
Standard English Characters:
1 – 160 characters = 1 Message
161 – 306 characters = 2 Messages
307 – 459 characters = 3 Messages
460 – 612 characters = 4 Messages
613 – 765 characters = 5 Messages
766 – 918 characters = 6 Messages
Non-GSM (Unicode) characters:
1 – 70 characters = 1 Message
71 – 134 characters = 2 Messages
135 – 201 characters = 3 Messages
202 – 268 characters = 4 Messages
269 – 335 characters = 5 Messages
336 – 402 characters = 6 Messages
If a message is longer than 4 message parts, it will be truncated (see below). If a message contains any characters that aren’t in the GSM 03.38 character set, the message type will be treated as unicode. (https://en.wikipedia.org/wiki/GSM_03.38).
Standard English Characters:
1 – 300 characters = 1 Message
301 – 600 characters = 2 Messages
601 – 900 characters = 3 Messages
901 – 1200 characters = 4 Messages
Non-GSM (Unicode) characters:
1 – 150 characters = 1 Message
151 – 300 characters = 2 Messages
301 – 450 characters = 3 Messages
451 – 600 characters = 4 Messages
All message delivery prices are subject to change at any time. You are responsible for reviewing the price schedule from time to time and remaining aware of the prices charged by ClickSend. ClickSend will immediately advise you of price changes by email or SMS. Any objections must be raised within 24 hours for special consideration. Payment in advance for Services can be made by a valid credit card accepted by ClickSend, unless other payment arrangements have been made between you and an authorized ClickSend representative. If ClickSend is for any reason unable to effect automatic payment via your credit card, you will be notified via e-mail. All payments made to ClickSend are non-refundable, unless an account is terminated by ClickSend for a reason other than violation of the Anti-Spam Policy.
14.1 Postpaid accounts
a) The Client will pay the fees as agreed in the signed Service Agreement.
b) ClickSend will invoice the Client on a monthly basis for the previous months’ use of the Product by the Client and any Customers.
c) The Client must pay the invoice within the payment terms as agreed in the signed Service Agreement.
d) ClickSend may charge interest on the amount of any invoice from the due date for payment until the date payment is made at the rate calculated as the rate charged by ClickSend’s principal bankers on unsecured overdrafts of $100,000.00 or less compounded monthly.
e) The Client must pay ClickSend’s legal costs (on an indemnity basis) of enforcing any of ClickSend’s rights under this Agreement. The Client must also pay fees and expenses payable to any debt collection agency engaged by ClickSend to obtain or attempt to obtain payment of account due by the Client.
f) ClickSend may terminate the Service Agreement if payment is not made within 14 days of the due date.
New Zealand mobile industry guidelines – for setting up and running services compliantly
It is recommended that providers of services in New Zealand familiarise themselves with the Mobile Messaging Services Code.
The Mobile Messaging Services Code (Code) was endorsed by the TCF in December 2010. The Code sets out the rights and obligations of Content Providers, Aggregators and Telecommunications service Providers for the advertising, promotion and operation of all chargeable and non-chargeable Mobile Messaging Services in New Zealand.
This Code came into effect on 14 March 2011, replacing the Mobile Premium Messaging Services Code.
Key Points about the Code:
ClickSend is not responsible for any potential variance, misinterpretation, inaccuracies, or inconsistencies which may appear on this page. We stress that the information contained here is for guidance only.
New Zealand – other relevant regulatory documents:
Message and data rates may apply
Customer care contact details: