In these Terms of Service (hereafter “Agreement” or “Terms”), “we,” “us,” “our” or “Enfonica” will refer collectively to Enfonica Pty Ltd, a proprietary limited liability company registered in Australia. The terms “you,” “your” and “Customer” will refer to you. To be eligible to register for a customer account in order to use the Services, you must review and accept these Terms. If you are registering for a customer account in order to use the Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to Enfonica that you have the authority to bind that organization to these Terms (and, in which case, the terms “you” and “your” or “Customer” will refer to that organization).
When we refer to the “Services” in these Terms, we are specifically referencing the Air SMS app available for Shopify.
Prior notice of changes: Enfonica may update these Terms of Service from time to time by providing you with prior written notice of material updates at least thirty (30) days in advance of the effective date. Notice will be given via an email to the email address owner of your account. This notice will highlight the intended updates.
Your acceptance: Following such notice, your continued access or use of the Services on or after the effective date of the changes to the Terms constitutes your acceptance of any updates. If you do not agree to any updates, you should stop using the Services.
You are solely responsible for all use (whether or not authorized) of the Services under your customer account(s). You agree to take all reasonable precautions to prevent unauthorized access to or use of the Services and will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from unauthorized use of your customer account(s).
3.1 Acceptable Use. Customer agrees not to use, and, not to encourage or allow any End User to use, the Services in the following prohibited ways:
3.2 Suspension of Services. We may suspend the Services immediately upon notice for cause if: (a) you violate (or give us reason to believe you have violated) any provision of these Terms; (b) there is reason to believe the traffic created from your use of the Services or your use of the Services is fraudulent or negatively impacting the operating capability of the Services; (c) we determine, in our sole discretion, that providing the Services is prohibited by applicable law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Services; or (d) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding, or (e) there is any use of the Services by Customer or End Users that in Enfonica’s judgment threatens the security, integrity or availability of the Services.
4.1 Fees. You agree to pay fees in accordance with the rates listed at airsms.io/pricing, unless otherwise set agreed between the parties. Additionally, we will charge you, and you shall pay, any and all additional costs, fines, or penalties we incur from a governmental or regulatory body or telecommunication provider as a result of your use of the Services.
4.2 Fee Disputes. If you are disputing any fees, you must act reasonably and in good faith and you must cooperate diligently with Enfonica to resolve the dispute. You must notify us in writing if you dispute any portion of any fees paid or payable by you pursuant to these Terms. You must provide that written notice to us within sixty (60) days of the date we bill you for the charge you want to dispute, and we will work together with you to resolve the dispute promptly.
5.1 General. As between you and Enfonica, we exclusively own and reserve all right, title and interest in and to the Services and all anonymized or aggregated data resulting from use and operation of the Services and that do not identify a natural person as the source of the information, as well as any feedback, recommendations, correction requests, or suggestions from you or any End User about the Services (“Contributions”).
5.2 Suggestions and Contributions. We welcome your Contributions about the Services. But please know that by submitting Contributions you agree that: (a) we are not under any obligation of confidentiality with respect to your Contributions; (b) we may use or disclose (or choose not to use or disclose) your Contributions for any purpose and in any way; (c) we own your Contributions; and (d) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances for your Contributions.
5.3 Use of Marks. You grant Enfonica the right to use your name, logo, and a description of your use case to refer to you on Enfonica’s website, marketing or promotional materials, subject to your standard trademark usage guidelines that you provide to us from time-to-time.
5.4.1 "Confidential Information" means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. Confidential Information does not include any information which: (a) is publicly available through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person without violation of the disclosing party's rights; or (d) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party.
5.4.2 Use and Disclosure. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who are legally bound to keep such information confidential consistent with the terms of this Section 5.
5.4.3 Compelled Disclosure. Enfonica may disclose your Confidential Information if so required pursuant to a regulation, law or court order. We will give you notice of the compelled disclosure (to the extent legally permitted). You will cover our reasonable legal fees for preparation of witnesses, deposition and testimony to the extent such compelled disclosure is in connection with a lawsuit or legal proceeding to which you are a party or to the extent fees are incurred in connection with reasonable assistance we provide to you in connection with your efforts to contest disclosure.
5.5 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 5 and that, in the event of an actual or threatened breach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.
6.1 Services. We represent and warrant that the Services will perform materially in accordance with the applicable documentation. Enfonica’s sole obligation, and your sole and exclusive remedy, in the event of any failure by Enfonica to comply with this section will be for Enfonica to, at Enfonica’s option, re-perform the affected Services or refund to you the fees you actually paid for the affected Services.
6.2 Export Controls. The Services may be subject to applicable export control and economic sanctions laws of the U.S. and other jurisdictions. Enfonica and You each agree to comply strictly with all domestic and international export laws and economic sanctions regulations, in the case of Enfonica, in providing the Services, and, in the case of you, in receiving and using the Services respectively, and to the extent consistent with these Term, you will obtain any necessary license or other authorization to export, re-export, or transfer the Services. These laws include restrictions on destinations, End Users, and end use. Without limitation, you may not transfer the Services without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). Enfonica represents that Enfonica is not named on a U.S. government exclusion list. You represent that you or any End User using the Services is not named on a U.S. government exclusion list, and you further warrant that you will immediately discontinue use of the Services if you or any End User using the Services becomes placed on any such list.
6.2 Disclaimers. GENERAL DISCLAIMER. WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND ENFONICA MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND ENFONICA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW. ENFONICA ADDITIONALLY DISCLAIMS ALL WARRANTIES RELATED TO THIRD PARTY TELECOMMUNICATIONS PROVIDERS.
7.1 Infringement Options. If your use of the Services has become, or in Enfonica’s opinion is likely to become, the subject of any Infringement Claim, Enfonica may at its option and expense: (a) procure for you the right to continue using the Services as set forth herein; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms and refund you any unused pre-paid fees. This Section 7 states your exclusive remedy for any Infringement Claim by a third party. 13.3 Limitations Enfonica will have no liability or obligation with respect to any Infringement Claim and a court award of damages (a) arising out of your use of the Services in breach of these Terms, (b) arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves, and without modification, be infringing, or (c) arising from Services for which there is no charge.
7.2 Indemnification by You. You will defend Enfonica, its officers, directors, employees, and affiliates (“Enfonica Indemnified Parties”) from and against any claim, demand, suit or proceeding made or brought against a Enfonica Indemnified Party by a third party alleging or arising out of (a) your or any of your End Users’ breach of these Terms or your obligations, or breach of your representations or warranties; and will indemnify Enfonica from any damages, attorney fees, and costs finally awarded against Enfonica Indemnified Parties as a result of, or for amounts paid by Enfonica Indemnified Parties to settle a Customer Indemnifiable Claim under a settlement for which you have given your written approval.
8.1 Term. These Terms, as may be updated from time to time, will commence on the date they are accepted by you and continue until terminated in accordance with Section 8.2 (Termination) below (“Term”).
8.2 Termination. You may terminate these Terms and close your customer account(s) for any reason. Enfonica may terminate these Terms and close your account for any reason upon thirty (30) days written notice to you. Enfonica, at its sole discretion, may terminate these Terms and close your customer account(s) in the event you commit any material breach of these Terms and fail to remedy that breach within five (5) days after Enfonica provides written notice of that breach to you. You may also terminate these Terms in the event we commit a material breach of these Terms and fail to remedy that breach within five (5) days after providing written notice of that breach to us.
Upon termination of these Terms, your payment obligations, the terms of this Section 9, and the terms of the following Sections will survive (i.e. still apply): Section 4, Section 5, Section 7, Section 10, and Section 11.
10.1 Compliance with Laws. You will comply with the applicable law relating to your respective activities pursuant to these Terms. Enfonica will provide the Services in accordance with laws applicable to Enfonica’s provision of the Services to its customers generally (i.e. without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement.
10.2 No Waiver, Order of Precedence. Our failure to enforce at any time any provision of these Terms, or any other of your obligations does not waive our right to do so later. And, if we do expressly waive any provision of these Terms, or any of your other obligations, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by you and us to be legally binding.
10.3 Assignment. You will not assign or otherwise transfer these Terms, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be void. Enfonica may assign these Terms, in whole or in part, without consent. Subject to this Section 10.3, these Terms will be binding on both you and Enfonica and each of our successors and assigns.
10.4 Relationship. You and Enfonica are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. You and Enfonica will be solely responsible for all of our respective employees and agents and our respective labor costs and expenses arising in connection with our respective employees and agents. You and Enfonica will also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of our respective activities, or those of each of our respective employees or agents, in the performance of these Terms. Neither you nor Enfonica has the authority to commit the other of us in any way and will not attempt to do so or imply that it has the right to do so.
10.5 Severability. Except as described in Section 11, if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.
10.6 Notices. Any notice required or permitted to be given hereunder will be given by e-mail to the party at the address specified in this Agreement. Notices to Enfonica shall be copied to email@example.com.
10.7 Force Majeure. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
10.8 Entire Agreement. Except as provided in these Terms and any exhibits or addenda or other terms incorporated by reference into these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by Enfonica, its agents or employees will create a warranty or in any way increase the scope of the warranties or obligations under these Terms.
11.1 We Both Agree to Arbitrate. If a dispute cannot be resolved through our Customer Support Team, you or any of your affiliates on one hand and Enfonica and any of Enfonica’s affiliates on the other hand, all agree to resolve any dispute relating to these Terms or in relation to the Services by binding arbitration in Queensland, Australia.