Terms and Conditions

Terms of Service

The Agreement contains the legal terms and conditions that govern our provision of Services and your use of and access to the Services. You are entering into the Agreement with Known Pty Ltd t/as Kudosity Co (ABN 40116431700) ("Kudosity", "We", "Our", "Us"). By signing the Service Agreement, or electronically accepting the Terms of Service or using the Services, you agree to and are legally bound by the Agreement.

If you do not accept all of the terms contained in the Agreement, you may not use the Services. Any individual person, who accepts the Agreement on behalf of an Entity, represents to Kudosity that it has the authority to bind such Entity to the Agreement. In the Agreement: (i) the Entity represented by the individual accepting the Agreement; or (ii) the actual individual, where the individual enters into the Agreement as a sole proprietor or trader, shall be referred to as "you" "your" or "Customer".

If you have a Prior Agreement, it shall be deemed terminated and superseded (to the extent it covers the Services provided pursuant to these Terms of Service and/or a Service Order) upon the applicable Service Start Date and without prejudice to any of Kudosity's accrued rights and your accrued liabilities under such Prior Agreement. Your use of, and access to, the Services are subject to additional terms that include without limitation the Supplemental Terms. Supplemental Terms may be presented or made available to you through means determined by Kudosity.

Kudosity and Customer agree that the non-binding date for the start of the Services will be the date on which the account is created and verified, hereinafter referred to as the "Service Start Date". Kudosity may adjust the Service Start Date by giving you reasonable prior notice, provided that any such change will not materially disadvantage you or alter your key rights or obligations under this Agreement.

We reserve the right (but are not obliged) to provide certain Services to you under the Agreement without a Service Order.

Capitalised terms in the Agreement shall have the meanings given to them in Section 21 of these Terms of Service unless otherwise defined in an applicable Section of the Agreement.

1. License

a. License:

Subject to the Agreement, you will have a limited, non-exclusive, non-transferable, non-sub-licensable right to (i) use the applicable Services and to permit Service Users to use the same, (ii) integrate the Services in your Application in order to access to the Service, if applicable, and (iii) offer and make available to Service Users the Services solely, or, as integrated into your Application, all in accordance with the Agreement. Such rights may be immediately revoked without notice upon termination of the Agreement or applicable Services.

b. License Restrictions:

You will not (and will not allow Service Users or others) to: (i) reverse engineer, decompile, copy or disassemble the Services; (ii) other than in accordance with Section 1(c), market, sell, sublicense, rent, lease, or otherwise distribute the Services, in whole or in part; (iii) modify, upgrade, improve, enhance or create derivative works of any portion of the Services for any purpose (including without limitation error correction or any other type of maintenance); (iv) transmit any content or data that is unlawful, including, without limitation, unlawful voice calls or content that infringes intellectual property rights; (v) circumvent, compromise, or otherwise endanger the operation or security of our systems or (vi) remove, obscure, or alter any identification, proprietary, copyright or other notices in the Services.

c. Numbers and Codes:

You acknowledge and agree that neither you nor any third party shall have any intellectual property rights and/or other proprietary interests in any Numbers, Codes or other connectivity capabilities made available to you under the Agreement. You will not take any action that would cause you or any third party to acquire any intellectual property rights and/or other proprietary interest in any Numbers and Codes. We may withdraw or suspend such Numbers and Codes at any time to comply with Relevant Laws and/or an order, instruction, or request of a Service Provider, Regulator, court or other competent authority.

2. Resellers

a. Resale Terms

You may resell the Services to third parties provided that: (i) use of the Services by Service Users and any of their acts and omissions are deemed to be your own for the purposes of this Agreement; (ii) each Service User is legally bound by an agreement with you as Service provider, which is at least as protective of Kudosity's rights and the Services as this Agreement, (iii) no Service User is granted any rights as a third party beneficiary to this Agreement, (iv) as between us and you, all Data accessed or submitted by Service Users shall be deemed to be your Data for the purposes of this Agreement, and (v) you shall not (and shall ensure that any Service User shall not) use Kudosity or Kudosity Affiliate trademarks, trade names or branding or make any representations with respect to the Services that are inconsistent with any express Kudosity representations in the Agreement (vi) You maintain commercially reasonable security measures, such as strong passwords and multi-factor authentication, to protect against unauthorised access to your account. If you breach this Section (i) or fail to enforce any of these obligations against a Service User, we may suspend or terminate any affected Service Orders or this Agreement on written notice. However, before doing so, we will give you at least fourteen (14) days to remedy the breach (if it is capable of being remedied). If you do not remedy the breach within that period, we may proceed with the suspension or termination.

b. Withdrawals and Payment Terms

Resellers may request withdrawal of margins you earn on messages sent, and we will process such requests twice monthly. We aim to release funds within a reasonable period (e.g., five to seven business days) following our acceptance of your withdrawal request, subject to any necessary verifications or adjustments. Payments will be converted and made in [currency]. We may deduct reasonable processing fees from your withdrawal amount. You acknowledge we may require you to provide information or documentation necessary to comply, verify your identity and comply with Relevant Laws before releasing withdrawal funds.

c. Refunds and Adjustments

If a Service User is or becomes entitled to a refund or credit that reduces your earned margins, we may adjust or reverse amounts due to you accordingly.

d. Nominated Account

You must nominate a valid bank account for receiving withdrawal payments, and you are responsible for ensuring that your account details are current and suitable to receive payment.

e. Liability Disclaimer

We are not liable for transfers made to an incorrect account where you provided wrong details, nor for withdrawals arising from unauthorised access to your account.

f. Tax Liability

All prices are listed exclusive of any applicable taxes and GST, unless otherwise specified. You are responsible for any taxes, duties, or levies applicable to your withdrawals, and must comply with all relevant reporting or remittance obligations.

g. Termination Consequences

Upon termination of this Agreement or your reseller status, any outstanding withdrawals will be processed in accordance with this Section after all applicable set-offs and adjustments are made.

3. Subscription Plans

a. Subscription Plan Service Types

Kudosity offers the following Subscription tiers; Starter, Business or Professional. Each of these tiers carries a base monthly fee, a usage allowance equal to an allocation of product credits, which are suitable for use across the Kudosity product and service range. For the avoidance of doubt, the Plan usage credits expire at the end of the billing cycle and do not roll over if unused. The credits will reset each month as the plan renews. Please refer to the Kudosity website for the latest Plan entitlements under each tier.

b. Subscription Plan License

Subject to the Agreement, Subscription Plan customers acknowledge and have access to a limited, non-exclusive, non-transferable, non-sub-licensable subscription-based right to (i) use the applicable Services and to permit Subscription Plan Service users to use the same, (ii) integrate the Services in your Application in order to access to the Service, if applicable, and (iii) offer and make available to Subscription Plan Service users the Services solely, or, as integrated into your Application, all in accordance with the Agreement. Such rights may be immediately revoked without notice upon termination of the Agreement or applicable Services. Kudosity reserves the right to enhance / modify the Services made available under the selected Plan, subject to advance written notification of any forthcoming changes.

c. Subscription Plan Start Date

For Subscription Plan customers, the contract date for the start of the Subscription Plan Services will be the date on which the account is created, authorised and verified, hereinafter referred to as the "Subscription Plan Start Date". Kudosity may adjust the Subscription Plan start date by giving you reasonable prior notice, provided that any such change will not materially disadvantage you or alter your key rights or obligations under this Agreement.

d. Billing Terms

Subject to the terms outlined in the Agreement, your selected plan will be billed on a monthly basis, pursuant to the payment terms selected at the time of subscription. The billing cycle will commence on the contract start date, and will automatically renew one month from contract start date (defined within these Terms). On execution of the Subscription Plan Agreement, where applicable, your nominated credit card will be charged for the amount of the base monthly subscription fee.

e. Payment Portal

The Subscription Plan billing process leverages the Kudosity billing portal, or nominated billing sub-processor, and provides access to select and manage your account plan, and payments thereof. The portal provides access to, and visibility of your monthly plan rate, credit balances, and applicable rates for services provided once the Plan entitlements expire, hereafter termed as "Overage" rates.

f. Monthly Credit Expiry

Under the terms of the Subscription Plan Agreement, the monthly charge captures a range of product features and entitlements, including but not limited to, SMS Credits, a dedicated virtual number (DVN) and an applicable overage rate for product access beyond included credit allowances. Kudosity reserves the right to expire unused credit and it be forfeited at the end of its validity period. Once the Service User has exhausted the Plan Credits, a balance Top-Up will be required to continue using the Service. You will be notified with an alert once your credits have been exhausted. If the "Auto-Top Up" option is enabled on the account then a set limit for a Top-Up will be charged to the credit card or payment system associated with the account. If this feature is not enabled, messaging capabilities will be suspended until there is a sufficient account balance to proceed.

g. Renewals

Unless otherwise indicated through a subscription amendment, your plan will automatically renew at the start of the next billing cycle.

h. Upgrades

You may elect to upgrade your subscription plan at any time, effective from completion of the request. Upgrades are charged on a pro-rated basis at the upgraded plan rate, to the end of the current billing cycle. A pro-rata credit is applied for unused days in the previous plan.

i. Downgrades

You may elect to downgrade your paid subscription at any time. Downgrades will apply from the start of the next billing cycle and must be submitted at least 3 business days prior to the next billing renewal date. Mid-cycle downgrades will not result in refunds or proration. All entitlements remain in place until the end of the current billing cycle.

j. Premium Features

Some premium features, such as WhatsApp messaging, RCS, or custom sender ID registration, may attract a one-time setup fee. These will be clearly communicated, as applicable, before activation.

k. Terminations for Subscription Plans

You are free to cancel your subscription at any time. Once your cancellation request has been completed, your account will be closed at the end of that billing cycle. Failure to access or use the platform does not constitute cancellation. Subscription fees will continue to apply until formal cancellation is completed by the customer through their account portal. Any data associated with a cancelled account will be archived. You may access your archives for a period of up to three months for compliance purposes, subject to a data access fee. Kudosity reserves the right to recoup costs incurred on retrieval of the archived data from storage.

l. Subscription Plan Payments

Once your plan has been activated, your billing cycle commences, and your payments will be managed through the Kudosity payment portal or billing partner. You will receive an invoice at the end of each month, detailing your account details, usage, entitlements, top up amounts and any fees or charges that have been applied to your account according to usage. Adding additional credit does not extend the validity period of any previously purchased credit. Kudosity reserves the right to expire unused credit and it be forfeited at the end of its validity period. The Fees shall be calculated in accordance with the rates and pricing which we make available to you (by means determined by us) from time to time. You will not earn interest on any Credit Balance held by us. Any complimentary Credit provided to customers for trial purposes is strictly non-refundable. We may deduct or offset from your Credit Balance, any sums you owe to us, which may include but are not limited to Fees and Taxes. All Recurring Fees and One-Time Fees may be deducted in advance of the applicable Service being provided and all Non-Recurring Fees may be deducted as the applicable Service is provided. Payments received from you will be deposited in the currency selected during Account creation. We support USD, GBP, AUD, EUR, HKD, SGD, PHP and NZD as standard and may be able to support other currencies on a case by case basis. All Fees, Taxes and other sums due will be deducted from this Credit Balance in the same currency. Every Service on an Account will deduct Fees, Taxes and other sums due from the same Credit Balance. Such Credit Balance shall be permanently assigned to us without further notice (and without prejudice to our other rights and remedies), where; (i) we suspend the Services more than once due to your breach of the Agreement. Refunds are not available for unused credits or subscription periods once the billing cycle has commenced, except as required by law. Expired credits cannot be reissued. Refunds will be approved or denied at our sole discretion. Any approved refund requests may be subject to a processing fee of $50USD or local currency equivalent. Approved refund request will be returned by your original method of payment within 14 days of approval.

m. Shared Numbers

Shared sender numbers may be deprecated at any time without notice, in alignment with evolving industry regulations or to maintain deliverability standards. Dedicated sender ID may be required for international sending.

4. Conduct

You agree that you will not, and will not encourage or permit any party (including but not limited to Service Users) to, access or use the Services:

a. Other than as expressly prescribed by the Agreement;

b. In violation of: (i) Compliance Rules or Relevant Laws or (ii) applicable third party licenses;

c. To send spam or unsolicited messages or other communications;

d. In any manner that is infringing, obscene, threatening, libellous, unlawful, or in violation of any third party rights;

e. To breach, interfere or attempt to interfere with any requirements, procedures, policies, or regulations of any Communication Authority, Industry Association, Regulator or any Service Provider;

f. To facilitate the transmission or use of any: (i) malicious code (including malware, viruses, worms, and Trojan horses); (ii) traps, time bombs, or other code with a latent ability to disable or cripple software or services; or (iii) code that would allow any third party to interfere with or access any Data;

g. To circumvent, disable, violate, or otherwise interfere with the security or integrity of the Services, their operation, any networks or servers used in connection with the Services, or any activity being conducted in or in relation to the same (or attempt at any of the foregoing);

h. To gather, store, upload or otherwise transmit any Data for which you do not have a right to do so;

i. Support or carry any emergency calls to any medical rescue, emergency, or law enforcement agency, service or provider of any kind; or

j. To impersonate any person or entity.

Additionally, you agree to promptly comply with all requests for documentation and information we make relating to your use of the Services.

5. Your Responsibilities

a. Your Account:

You are solely responsible for your Account, all activities conducted in connection with your Account, and the accuracy of all information provided by or to you relating thereto, including without limitation, contact, technical, campaign and payment information, the Credentials. You are also responsible for securing, protecting, and safeguarding access to your Account, including maintaining strong passwords and ensuring your Credentials are not exposed. You will promptly update any Account Information if it changes and notify us of any unauthorised use of your Account and/or Credentials, and any related security breach. You will only connect to the Services through your Account and use only the licenced Credentials.

b. Content and Monitoring:

You are solely responsible for all Content, and the storage and transmission of the Content must comply with the Agreement.

We may (but have no obligation to) monitor your use of the Services at any time, with or without notice, to the extent allowed by applicable law, including to: (i) comply with Relevant Laws, including disclosing Customer Data as required by such Relevant Laws; (ii) to safeguard the security and stability of our systems and networks, as well as those of our providers; (iii) to confirm your adherence to the Agreement; (iv) as needed to maintain and facilitate the functionality of the Service; or (v) as otherwise authorised or requested by you.

c. Data Protection and Privacy:

You acknowledge and agree that we will collect, use and disclose Personal Data in accordance with our Privacy Policy (https://kudosity.com/legal/privacy-policy). You grant us a royalty-free, worldwide, irrevocable and perpetual license to retain, store, use, adapt and disclose the Data solely: (i) in connection with our provision of the Services; (ii) for our internal purposes, (iii) to develop, test and protect the operation of the Services including support services, (iv) to create aggregated, anonymised data, including for usage statistics, and (v) to satisfy applicable legal, accounting or regulatory requirements. Each party shall comply with its obligations under applicable Data Protection Laws in respect of any Personal Data processed under the Agreement. You warrant, represent and undertake to us that you have all necessary rights, licenses and consents to provide us with Data for these purposes. You and we acknowledge that in relation to your processing activities on our platform, you are the Data Controller and we are the Data Processor, including in respect of sending messages. Where you are the Data Controller and we are the Data Processor, we will process such Personal Data solely on your instructions and on your behalf in accordance with the terms of this Agreement including the Data Processing Agreement set out in Exhibit 2, available at (https://kudosity.com/legal/data-processing-agreement). and our duties as a Data Processor under applicable Data Protection Laws. In parallel and in accordance with Recital 47 of the European Data Protection Directive 95/46/EC (as amended from time to time or replaced by other EU regulation) and the retained version of the same regulation in the UK ("UK GDPR") per s3 of the Data Protection Act 2018 (UK), you acknowledge that we shall act as an independent Data Controller with respect to the processing of Personal Data which is necessary for the operation of the Services which shall include any information processed for the purpose of the conveyance of a communication on an electronic communications network or for the billing thereof.

d. Service Users:

You shall remain fully liable to us for any use of the Services by Service Users (whose acts and omissions shall be considered to be your acts and omissions). We will provide support, when and if provided, only to you and not to Service Users.

e. Records & Consents:

You will maintain accurate and complete records of your performance under the Agreement during the term and as required under the Compliance Rules and Relevant Laws. Upon reasonable written notice, you shall provide copies of any such records to Kudosity to determine your compliance with the Agreement or in response to any request made by any relevant body under Relevant Laws. Kudosity or its representatives shall be entitled to disclose any such records (and to carry out audits of your premises and systems, upon reasonable written notice) where required by any Service Provider, Regulator or other competent authority. Without limiting the generality of any other provision of the Agreement, prior to using the Services to send Content to any third party, you shall obtain verifiable informed consent in accordance with Relevant Laws and the Compliance Rules, and shall maintain a record of each such consent. You shall provide a reasonable and readily accessible method for third parties to revoke this consent and, at our request, shall provide us with verifiable evidence to establish informed consent from such third parties (to our satisfaction). Information collected via SMS Opt-in will not be sold, rented or shared outside of Kudosity, subject to legal authority requests.

f. Hardware or Communication equipment:

You are responsible to provide suitable hardware or communications equipment including all necessary infrastructure to ensure your access to the Service. You are also responsible, at your own expense, for the provision and regular monitoring of access infrastructure between you and the Services. Kudosity is responsible for the Services up to and including your physical point of connection.

g. Message Delivery

It is your sole responsibility to ensure compliance with all Compliance Rules and Relevant Laws, carrier rules, and content restrictions to avoid disruptions to message delivery. Further, you remain responsible for all Fees incurred for messages sent through the Services, regardless of whether those messages are successfully delivered, blocked, or filtered by carriers, regulatory bodies, or recipients' networks.

h. Responsibility for API Integrations

If you use an API connection to access the Services, you are solely responsible for ensuring the correct configuration and implementation of your API setup. Any messages sent due to misconfigurations, errors, or unintended triggers in your API integration are your responsibility, and we are not liable for any resulting fees, disruptions, or unintended message transmissions. You will be charged for all messages sent via your API connection, including those triggered unintentionally due to incorrect API configurations.

6. Generative AI Services – Chatbots and AI Service Agents

Subject to Section 9, and the terms, conditions, limitations and disclaimers set out below, as part of the Services, we may provide access to artificial intelligence tools such as chatbots or AI Service Agents that can generate text, images, video, sound or other outputs in response to user-generated prompts (together, "Generative AI").

Acknowledgement of risks

By using any Generative AI, and notwithstanding anything to the contrary, you agree and acknowledge that:

a. Generative AI carries certain risks, including factually untrue outputs, biased outputs, data security vulnerabilities, potential infringement of intellectual property rights, privacy risks, and applicability of additional licence terms;

b. Generative AI is provided by our third parties Service Providers, and we are not responsible for the acts or omissions of any Service Providers;

c. inputs you provide to the Generative AI services, including any personal data or confidential data you choose to include within that input, will be shared with the Service Providers for the purposes of delivering the Generative AI functionality;

d. there may be on-going and unresolved legal disputes regarding Generative AI, including the right of Service Providers to ingest the data used to train the Generative AI, and that we are not liable for any loss or damage suffered by you as a result of any such disputes;

e. we provide access to Generative AI "as is", without any warranty of any kind and hereby disclaim all warranties, express or implied, regarding the Generative AI and your use thereof, including, without limitation, all warranties of merchantability, fitness for a particular purpose, and non-infringement;

f. you are entirely responsible for the prompts, inputs or content you provide to the Generative AI, and for any material generated in response, including text, images, audio or other outputs. Due to the nature of Generative AI, the output it generates may be unpredictable and may include inaccurate, misleading or harmful responses. You are solely responsible for reviewing any such output for accuracy, safety, and compliance with applicable laws and acceptable use policies before using or relying on it. You acknowledge and accept that your use of the resulting material is at your own risk and must only be for lawful purposes;

g. you agree not to use the Generative AI in any manner that infringes or violates the intellectual property rights or any other rights of anyone else.

h. Exclusion of liability: Your use of Generative AI is at your own risk, and we shall not be liable for any loss, damage, cost, expense or any other liability arising as a result of your use of Generative AI. You indemnify, hold harmless and hereby release, acquit and forever discharge us and our Indemnified Parties from and against any and all Claims or in respect of any Losses arising out of or relating to your use of Generative AI. The foregoing release is made on behalf of your respective successors, assigns, officers, agents, employees, representatives and affiliates.

i. Customer Responsibilities: You must use Generative AI only in accordance with applicable laws, this Agreement, and reasonable standards of acceptable use. You must not use, or permit others to use, Generative AI in any manner that: (i) forms part of an automated decision-making process with legal or similarly significant effects unless the final decision is made by a human who has considered other relevant factors; (ii) is intended to replace advice from licensed professionals, including legal, financial, or medical practitioners; (iii) predicts or infers protected characteristics such as racial or ethnic origin, political or religious beliefs, health status, disability, sexual orientation, or gender identity; (iv) involves biometric analysis or profiling based on physical, facial or behavioural characteristics; (v) is deceptive, misleading, or intended to impersonate individuals; (vi) misrepresents content generated through automated means as human-generated or original content; (vii) contributes to or enables child exploitation or abuse, including any material harmful to minors; or (viii) assists in the development, marketing, or distribution of weapons or explosives.

As a Reseller, You must clearly disclose to users when they are interacting with an AI system unless there is a human actively involved in the interaction. Where required by law, you must also provide a means for users to escalate to a human representative. You are solely responsible for ensuring your use of Generative AI complies with all applicable legal, regulatory, and ethical standards.

7. Payments and Pricing

a. Post-pay Customers:

Where you have been approved for and signed a Service Order for a post-pay Service, you shall be deemed a post-pay Customer, unless otherwise arranged. You will pay us the Fees and Taxes and all other invoiced amounts within the period specified in the applicable Service Order or within fourteen (14) days from the date of invoice, whichever is longer. Unless stated otherwise in a Service Order, the Fees shall be calculated in accordance with rates and pricing which we make available to you (by means determined by us) from time to time. Unless stated otherwise in a Service Order, all Non-Recurring Fees (such as excess usage fees/charges) will be invoiced monthly in arrears, and all Recurring Fees and One-Time Fees (such as Account set up) may be billed in advance. Kudosity reserves the right to charge customer service and / or merchant service fees associated with administrative processing. All Fees, Taxes and other sums shall be billed in the applicable currency stated in the Service Order. All sums will be paid by the method determined by us in our sole discretion.

b. Pre-pay Customers:

Where you have signed a Service Order for pre-pay Services or if you have not signed a Service Order for a Service, you will be a pre-pay Customer. You will pay us the Fees and Taxes and all other amounts payable to us through prepayments made by you on your Account. You must use your purchased credit within 365 days from the date of purchase. Adding additional credit does not extend the validity period of any previously purchased credit. Kudosity reserves the right to expire unused credit and it be forfeited at the end of its validity period. The Fees shall be calculated in accordance with the rates and pricing which we make available to you (by means determined by us) from time to time. You will not earn interest on any Credit Balance held by us. Any complimentary Credit provided to customers for trial purposes is strictly non-refundable. We may deduct or offset from your Credit Balance, any sums you owe to us, which may include but are not limited to Fees and Taxes. All Recurring Fees and One-Time Fees may be deducted in advance of the applicable Service being provided and all Non-Recurring Fees may be deducted as the applicable Service is provided. Payments received from you will be deposited in the currency selected during Account creation. We support USD, GBP, AUD, EUR, HKD, SGD, PHP and NZD as standard and may be able to support other currencies on a case by case basis. All Fees, Taxes and other sums due will be deducted from this Credit Balance in the same currency. Every Service on an Account will deduct Fees, Taxes and other sums due from the same Credit Balance. Such Credit Balance shall be permanently assigned to us without further notice (and without prejudice to our other rights and remedies), where; (i) we suspend the Services more than once due to your breach of the Agreement. A refund request for any unused Credit Balance can only be made within the validity period of that Credit Balance (i.e. within 365 days from its date of purchase), and only if the Credit Balance has not been used to pay for services within that time. Refunds will be approved or denied at our sole discretion. Any approved refund requests carry a processing fee of $50USD or local currency equivalent. Approved refund request will be returned by your original method of payment within 14 days of approval.

Note: Subscription Plan payment terms are governed by Section 3 above.

c. Set-Off:

You will not have a right of any type of deduction or setoff unless required by Relevant Laws. If any such set-off is required by Relevant Laws, you shall, when making the payment to which the withholding or deduction relates, pay to us such additional amount as will ensure that we receive the same total amount that we would have received if no such withholding or deduction had been required.

d. No Waiver:

No omission or delay by us in invoicing any sums and/or deducting them from a Credit Balance will operate as a waiver of our rights; nor shall prohibit us from raising an invoice and/or deducting them from a Credit Balance at a later date nor shall it relieve you of your liability to pay.

e. Non-payment:

In the event of non-payment or a credit default pursuant to agreed payment terms, your account shall be suspended pending further investigation. Kudosity reserves the right to terminate any account that has defaulted on payment terms without prejudice, and reserves the right to delete data associated with the account after a period of twelve months. Kudosity will activate the dunning process for credit collections and will commence legal action as deemed appropriate and necessary.

f. Credit Limit:

Your Credit Limit shall be as notified by us to you from time to time. If we determine that the Accrued Liability exceeds the Credit Limit, you shall pay, within twenty-four (24) hours of receiving notice from us, such amount as we reasonably require to (i) reduce the Accrued Liability to be equal to or less than the Credit Limit and, (ii) ensure the Credit Limit is not exceeded prior to the next invoice due date. You consent to and shall procure that your owners, directors, officers and assigns consent to, Kudosity conducting credit and identity checks, including carrying out searches with credit reference agencies for the purpose of assessing your creditworthiness and financial standing, in accordance with applicable privacy and credit reporting laws.

g. Fee Changes:

Unless expressly stated otherwise in the Service Order, we may vary the pricing used to calculate the Fees with reasonable prior notice. General pricing changes (not related to third-party carrier costs) will be notified to you not less than 7 days in advance and will apply to future Service Orders or ongoing Services from the effective date specified in the notice. Changes arising from increased costs imposed by third-party carriers or other telecommunications providers (e.g. SMS termination charges, interconnect fees, gateway provider costs, or international routing surcharges) may take effect from the date of the notice.

h. Fees and Taxes are non-refundable:

Fees exclude, and you will pay, all Taxes, but neither party will pay income taxes of the other party. For any invoice you fail to pay by its due date, we may charge you interest on the amount overdue calculated daily from the due date until payment is received in full whether before or after judgment, equal to the lesser of: (i) an appropriated market value interest rate, or (ii) an interest rate of five percent (5%). This interest is intended as a genuine pre-estimate of loss, not as a penalty. The Fees payable shall be calculated by reference to data recorded or logged by us and not by reference to any data recorded or logged by you. Any invoices issued by us shall, save in the case of manifest error, be final, conclusive and binding on you. You may dispute an invoice in good faith but must do so within the period specified for payment of invoices in the applicable Service Order or within seven (7) days from the date of invoice, whichever is longer, otherwise, you will be deemed to have irrevocably waived all rights and claims concerning such invoice. Kudosity may set off amounts owed by you under the Agreement or any other agreement you have with Kudosity or any of its Affiliates. Each party shall bear the costs imposed by their own bank when making and receiving EFT payments under the Agreement. Kudosity will charge a surcharge for any credit card payments in line with their costs of acceptance of the relevant payment method.

i. Liability for Blocked Messages, API misconfigurations and other Non-Refundable Fees:

You acknowledge and agree that we are not liable for any fees incurred in connection with messages sent using numbers that are subsequently blocked, nor for any message content that is blocked by the carrier due to inappropriate use or non-compliance with Compliance Rules and Relevant Laws. You will be charged penalty fees for such messages, and no refunds or credits will be provided in such cases, including where message blocking results from your failure to comply with carrier requirements, industry guidelines, Compliance Rules or Relevant Laws.

You are also responsible for securing access to your Account, including maintaining strong passwords and ensuring that your credentials are not exposed or shared. We are not liable for any unauthorised access to your Account or any resulting Fees, losses, or disruptions arising from weak security practices, compromised Credentials, or failure to maintain adequate safeguards, and we will not offer refunds for any messages sent, Fees incurred, or other consequences resulting from such unauthorised access including but not limited to phishing attacks, credential stuffing, inadequate password management, or any failure to implement reasonable security controls.

If you use an API connection to access the Services, you are solely responsible for ensuring the correct configuration and implementation of your API setup. Any messages sent due to misconfigurations, errors, or unintended triggers in your API integration are your responsibility, and we are not liable for any resulting fees, disruptions, or unintended message transmissions. You will be charged for all messages sent via your API connection, including those triggered unintentionally due to incorrect API configurations.

j. Chargebacks and Payment Disputes:

If you initiate a chargeback or dispute a payment made to us through your bank or card provider, you acknowledge that our payment processor imposes a non-refundable chargeback fee per disputed transaction. If the chargeback is resolved in our favour and the original payment is deemed valid, you agree to reimburse us for the chargeback fee, along with any associated costs incurred in disputing or resolving the chargeback. We reserve the right to recover these amounts by charging your designated payment method, offsetting against future payments, or invoicing you directly. Failure to reimburse these amounts within the specified payment period may result in suspension or termination of your access to the Services.

k. Number Porting and Administrative Fees:

You acknowledge and agree that administrative fees apply to the administration and processing of number porting requests, which are set out in our pricing tables (https://kudosity.com/pricing). These fees cover the costs associated with verifying, coordinating, and executing the porting process. You agree to pay all applicable administrative fees as specified in our pricing schedule or as communicated to you at the time of your request. We reserve the right to withhold processing of a porting request until full payment of any outstanding administrative fees is received.

8. Term and Termination, Suspension, Survival

a. Term:

The Agreement takes effect as of the earlier of: (i) your use of any Services, or (ii) your acceptance of the Terms of Service (iii) your signed agreement to any Service Order with us, and will continue until terminated in accordance with the terms of the Agreement or Service Order. Unless otherwise agreed in the Service Order, or terminated in accordance with the Agreement, each Service Order shall automatically renew for the Renewal Term upon expiry of its Initial Term or then-current Renewal Term unless either party requests termination via written notice at least thirty (30) days prior to the end of the then-current term. We must provide you with notice at least sixty (60) days prior to the expiration of the Initial Term or the then-current Renewal Term that the subscription will be renewed automatically, and we must provide in that notice: (a) the prices for the Renewal Term; and (b) information on how to cancel the automatic renewal.

For Subscription Plans, term and renewal provisions are governed by Section 3 above.

b. Termination:

Subject to Section 7(c), either party may terminate a Service with no less than thirty (30) days’ notice to the other (or such alternative period as specified in any applicable Service Order). Termination of a Service Order shall trigger termination of all Services under it on the same date. We may terminate the Agreement (in whole or in part) for cause, immediately upon notice to you, should (i) you file for bankruptcy or otherwise become insolvent, (ii) a liquidator, administrator or receiver be appointed in respect of the whole or part of your assets or undertaking, (iii) you enter into (or propose to enter into) an arrangement with your creditors, (iv) anything analogous to Section 7(b)(ii) or (iii) occur in any jurisdiction, (v) a suspension of the Services under Section 7(c) continue for more than five (5) consecutive days, (vi) you do not substantially use the Services for a consecutive period of six (6) months or longer, or (vii) you breach the Agreement and fail to cure such breach within five (5) days of your receipt of notice of the same.

c. Suspension:

We may suspend all or any part of the Services if: (i) in our sole discretion, if not doing so would have a detrimental effect on the Services or our provision thereof, (ii) if the Accrued Liability exceeds the Credit limit, (iii) to comply with Relevant Laws and/or an order, instruction, or request of a Service Provider, Regulator, court or other competent authority, (iv) where you fail to pay any Fees or Taxes in accordance with the Agreement; (v) to perform planned or unplanned network maintenance; (vi) we are unable to continue to provide some or all of the services due to we are unable to provide the services due to changes in third-party relationships or loss of required licenses or authorisations or (vi) if we otherwise find it necessary to do so in order to maintain or to protect our interests (including without limitation, for any breach or potential breach of the Agreement or to maintain the integrity of continued operation of our Services). In addition to our right to terminate or suspend the Services, you acknowledge that we reserve the right to temporarily disable access to the Services (or any portion thereof) for maintenance purposes. Suspension under this Section does not waive the obligation of any payment obligations under this Agreement.

d. Early Termination Charge (ETC):

Where a Service Order has been agreed or a Subscription plan is in place and where a Service terminates before the date of expiration of an Initial Term or a Renewal Term, we reserve the right to charge an ETC, which you shall be liable to pay within seven (7) days of an invoice from us. Such ETC will be an amount of liquidated damages which represents a fair and genuine pre-estimate of the loss we are likely to suffer from early termination of the Agreement and is not intended to be construed as a penalty. The ETC shall be due in addition to all other monies owed which are unpaid. This Section shall not apply where we have terminated for convenience or you have terminated for cause.

e. Survival:

The following provisions will survive the termination of the Agreement and the termination or expiration of each Service Order or Service (together with any other provisions of the Agreement which expressly or impliedly survive termination): Sections 4(e) (Records & Consents), 6 (Payments and Pricing), 7 (Term and Termination, Suspension, Survival), 8 (Ownership) 10(Relevant Laws and Compliance Rules), 11 (Warranties), 12 (Indemnification), 13 (Limitation of Liability), 14 (Confidentiality), 15 (Publicity) 17 (Governing Law and Venue) 18 (Notice) 19 (General) 20 (Definitions). The termination of the Agreement and the termination or expiration of any Service Order or Service shall be without prejudice to our accrued rights and your accrued liabilities.

9. Ownership

You retain all rights and ownership in Data. We do not claim any ownership rights in Data. Except for rights expressly granted herein, no implied licenses are granted by us, and we hereby reserve all rights not so granted. You acknowledge that we retain all sole and exclusive ownership of all right, title and interest in and to the Services and our Confidential Information (defined below), including all intellectual property rights thereto, and at no time will you dispute or contest our exclusive ownership rights in any of the foregoing. If you provide any Feedback, we will own such Feedback and may use and modify the Feedback without any restriction or payment to you.

10. Changes

a. Except as expressly stated in a Service Order, we reserve the right, in our sole discretion and with or without notice from time to time, to modify or update any Services as we (acting reasonably) deem necessary or useful to comply with applicable law or to maintain or enhance the quality, functionality, performance, reliability or efficiency of the Services). This includes the option to remove functionality from the Services where we either provide a functional equivalent or where this does not materially reduce key functionality of the Services. Functionality beyond the initial scope of the Services may be subject to additional terms and use of such additional functionality shall be subject to those terms.

b. We may amend these Terms of Service from time to time. If we do so, we will publish the updated Terms of Service on our website https://kudosity.com/legal/terms-and-conditions and within the Kudosity platform. We may also provide notice by other reasonable means, such as via email. Subject to section 9(c), non-material changes will take effect immediately upon publication. Your continued use of Kudosity following the effective date of the updated Terms of Service constitutes your agreement to be bound by them.

c. If we make a change that materially affects your rights or obligations under these Terms of Service, we will provide at least 30 days’ prior written notice. If you do not agree to a material change, you may stop using Kudosity and terminate your use of the Services before the effective date. If you do not respond or cancel within the 30-day period, your continued use of Kudosity after the effective date will be deemed acceptance of the revised Terms of Service.

Further, we specifically reserve the right to make changes to the Terms of Service by publishing a revised version at https://kudosity.com/legal/terms-and-conditions (or any successor URL we determine) as may be updated by us from time to time. If an amendment to the Agreement or Services is to your material detriment, you may terminate either: (i) the affected Service Order; or (ii) the affected Service, upon written notice within thirty (30) days following the effectiveness of such amendment (or by the date which you are entitled to terminate under Relevant Law).

11. Relevant Laws and Compliance Rules

You shall (and shall ensure that your customers, Affiliates, employees, contractors and agents shall) ensure that all use of the Services and all Data complies with Relevant Laws and the Compliance Rules. You shall provide (and shall ensure that your customers, Affiliates, employees, contractors and agents shall provide) all co-operation as is required by us to enable us to comply with requests and investigations by Regulators, law enforcement agencies and Service Providers relating to the Services and Data.

By subscribing to SMS notifications from Kudosity, you are signing up to receive customer care, and notifications, surveys and feedback request messages at the phone number provided. For help contact 1300 012 014 or helpdesk@kudosity.com.

To unsubscribe from the program, reply "STOP" at any time. Text HELP for help. Message and data rates may apply. Message frequency varies.

12. Warranties

a. Warranties:

Each party represents and warrants it has the necessary authority to enter into and perform the Agreement, and that such performance does not violate or breach any other agreement to which it is a party. We warrant that the Services will be provided with the reasonable degree of skill, care, diligence, prudence and foresight to be expected of a competent provider of the Services. Additionally, you represent and warrant that you will fully comply with the Agreement and that the Data and Content, and your use of the Services, do not and will not cause any breach of the Agreement.

b. Disclaimer:

Except as expressly stated in the Agreement, we provide the services on an “as is” and “as available” basis. We make no representations or warranties with respect to the Services and Data, and we do not warrant that the Services will be secure, uninterrupted, timely, or error-free or that Content will be delivered. To the fullest extent permitted by law, we disclaim and the Agreement excludes any implied or statutory warranty, including any warranty of title, non-infringement, merchantability or fitness for a particular purpose. You acknowledge that there are risks inherent in network connectivity that could result in the loss of your privacy, Data, Confidential Information and property. You further acknowledge that Kudosity is not liable for messages sent to individuals who have not provided any consent required, or you have otherwise failed to comply with the Compliance Rules and Relevant Laws, including anti-spam regulations. You further acknowledge that Kudosity does not control networks or applications of third parties (including without limitation Service Providers and their networks or applications) and Kudosity is not responsible for the impact on the Services by the action or inaction of such networks, applications or third parties. Accessing third party applications will be at your own risk. We encourage you to read their terms of use/service and privacy policies so that you understand how they may collect and process your Personal Data. The Services are not a substitute for a standard telephone service and are not intended to fulfill any specific obligations relating to the provision of access to emergency call services. Accordingly, we are not liable for any loss, damage, or injury arising from the inability to access emergency services through the Services.

13. Indemnification

a. Indemnification by Us:

We will indemnify, hold harmless and defend you from and against any and all Losses arising out of or relating to any Claim from a third party (other than one of your Affiliates) arising from or relating to any proven infringement of the intellectual property rights of such third party by your use of the Services in accordance with the Agreement. This indemnity is subject to you (i) providing us with prompt written notice of any Claim; (ii) providing us with sole control and defence of the Claim, including any settlement; (ii) not making any admission of liability or otherwise acting in any manner which prejudices our ability to fully defend the Claim; (iii) providing us with any reasonable co-operation we require. We may (at any time) in our sole discretion: (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for your continued use of that Service in accordance with the Agreement, or (iii) terminate your subscription to that Service upon written notice and refund you any prepaid Fees or Taxes relating to such part of the Services which have not been provided by the effective date of termination. This Section 12(a) shall not apply to the extent the relevant Claim arises as a result of any: (i) Data; (ii) use or exploitation of the Services by you or any Service User in any manner which breaches the Agreement; (iii) combination or integration of the Services with anything not provided by us; or (iv) use of the Service provided for no fee. Subject to any rights you may have under the Australian Consumer Law (ACL) or other applicable law that cannot be excluded, the provisions of this Section 12(a) state the sole, exclusive, and entire liability of our company, our Affiliates, and subcontractors to you, and constitute your sole remedy with respect to third-party claims and the infringement or misappropriation of third-party intellectual property rights.

b. Indemnification by You:

You will indemnify, keep indemnified, hold harmless and defend us from and against any and all Losses arising out of or relating to any and all: (a) Claims arising from or relating to Data; and (b) Claims arising from or relating to access to and use of the Services (whether by you, any Service User including customers to whom you resell the services) including but not limited to messaging, number rental, AI services or functionality, our SaaS platform, API services and integration services; (c) Claims from Service Providers as a result of any Claims brought by you against such Service Providers in relation to the Services or this Agreement; (d) Claims by Service Users against Kudosity; and (e) breaches of Sections 1, 2 (if applicable) , 3, 4 and 5 of these Terms of Service.

14. Limitation of Liability

a. Subject to Section 13(c), neither party will be liable to the other under (or in connection with) the Agreement (whether for breach of contract, negligence, misrepresentation, statutory duty or otherwise) and regardless of the nature of the claim, action or demand, for (i) any incidental, indirect, special, punitive or consequential losses of any kind, (ii) loss of profits, data (including but not limited to corruption of data), business opportunities, contracts, revenue, goodwill, anticipated savings, or financial loss of any kind (whether any of the types of loss referred to in this Section 13(a) (ii) are direct, incidental, indirect, special, punitive or consequential losses). We will not be liable for any damages caused by any Service provided for no fee.

b. Subject to Section 13(c), neither party will be liable to the other under (or in connection with) the Agreement (whether for breach of contract, negligence, misrepresentation, statutory duty or otherwise) and regardless of the nature of the claim, action or demand, for any amounts exceeding ten thousand US dollars ($10,000) in the aggregate, or equivalent.

c. Nothing in this Agreement either limits or excludes the liability of (i) either party in relation to an indemnity given by it under Section 12; or (ii) you for your payment obligations. Further, the parties agree that nothing in this Agreement is intended to or has the effect of limiting or excluding liability in any way or to an extent that is prohibited by, or cannot be excluded or limited by, applicable law.

15. Confidentiality

Each party will, during the Term and thereafter, maintain in confidence the Confidential Information of the other party and will not use such Confidential Information except as expressly permitted herein. Each party will use the same degree of care in protecting such Confidential Information as such party uses to protect its own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. Each party will use such Confidential Information solely for the purpose of carrying out its respective rights and obligations under the Agreement. In addition, each party: (a) will not reproduce such Confidential Information, in any form, except as required to accomplish its rights and obligations under the Agreement or to comply with Relevant Laws or a request from a court or governmental agency (including by pursuant to stock market rule or regulation); and (b) will only disclose such Confidential Information to its affiliates, employees and consultants who have a need to know such Confidential Information in order to perform their rights and obligations relating to the Agreement and have been informed of the obligation to preserve the confidentiality of such information prior to receiving such information. Notwithstanding the foregoing, Confidential Information will not include information that: (a) is in or enters the public domain without breach of the Agreement through no fault of the receiving party; (b) the receiving party can reasonably demonstrate was in its possession prior to first receiving it from the disclosing party; (c) the receiving party can demonstrate was developed by the receiving party independently and without use of or reference to the Confidential Information; or (d) the receiving party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation (e) is intended for distribution to third parties for messaging purposes. Either party may disclose Confidential Information of the other party (and we may disclose any Data) to the extent required by law, Regulators or Service Provider request.

16. Publicity

Unless you notify us otherwise, you grant Kudosity a limited, non-exclusive, royalty-free licence to use your name and logo solely for the purpose of identifying you as a customer on our website, in presentations, and in other marketing materials. We value your brand and will never disclose any confidential information. If you prefer not to be featured, you may opt out at any time by contacting us at marketing@kudosity.com.

17. Test Accounts

We may make an Account available to you for the purposes of testing certain Services (with or without a corresponding test Account or Service Order, at our discretion). The terms of this Agreement shall govern your use and access to such test Account and Services. You agree to use the test Account and Services solely for the purpose of testing, and not for any productive, commercial or other purpose even if other provisions in this Agreement suggest otherwise.

During this test period, certain restrictions apply, which may include but are not limited to:

a. Sender ID Options: Availability may be limited or predefined based on your region.

b. Contact Lists: Sending capabilities may be restricted to specific, pre-approved contact lists.

c. Messaging Features: Some functionalities, such as campaign sending, Quick SMS, Email SMS, and API access, may have limitations or be disabled.

d. Message Content: Messages sent during the trial may be modified or include disclaimers indicating their trial status.

e. Trial Credits: A limited amount of credits is provided for testing purposes, which may not reflect the full capabilities of a paid account.

You shall comply with the detailed information on test account limitations, please refer to Trial Account Limitations available at (https://help.kudosity.com/s/article/how-does-a-trial-account-work).

The Fees for such test Account and test Services shall be as determined by us from time to time. Upon adding credit to your account, these trial limitations are lifted, granting you full access to all features and services applicable to your region and chosen plan.

We reserve the right to withdraw such test Account and test Services at any time (with or without notice to you).

Note: Test accounts are not applicable for the subscription offering.

18. Governing Law and Venue

Applicable governing law and venue are set out in the Introduction. We may, however, bring enforcement proceedings against you in any jurisdiction.

19. Notice

Kudosity may provide all written notices hereunder to any email address under your Account, effective upon transmission. If an email address under your Account is not valid, or we for any reason are not capable of delivering to you any notices required/permitted by the Agreement, our dispatch of the email containing such notice will constitute effective notice. It is your responsibility to ensure that your email address is current and functioning. We may also give notice to you via SMS and the mobile number listed and verified in your Account, which shall be deemed effective on the date of dispatch. You may give notice to us via email to helpdesk@kudosity.com, or our postal address as listed in any Service Order Such postal notice will be deemed effective when received by us by letter delivered by nationally recognised overnight delivery service or recorded prepaid mail at the above address.

20. General

Neither party will be liable for failures or delays in the performance of its obligations hereunder due to causes beyond its reasonable control, including, without limitation, in respect of the provision of the Services, failures or delays caused by Service Providers, any act of God, terrorist attacks, inclement weather, accidental damage, vandalism, failure or shortage or power supplies, flood, drought, lightning or fire, strike, lock-out, trade dispute or labour disturbance, compliance with Relevant Laws, any act or omission of Government or other competent authorities. Further, in respect of the provision of the Services, we shall not be liable for any failure or delay in performing an obligation under the Agreement if such failure or delay arises as a result of or in connection with any of the following: (i) any defect, malfunction, or issue affecting systems that we do not own, control, or operate; (ii) any violation of the Agreement by you or any third party acting under your direction, including your third-party suppliers; (iii) any action taken by you that disrupts, obstructs, or otherwise negatively impacts the delivery or maintenance of the Service; (iv) any temporary or permanent suspension of the Service as permitted under the Agreement.

The parties are independent contractors, and there is no partnership, joint venture, employment, franchise or agency relationship created by the Agreement. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under the Agreement. We may assign or transfer our rights or obligations under this Agreement with your prior written consent, which must not be unreasonably withheld or delayed. However, no consent is required for an assignment to one of our Affiliates, provided that such assignment does not materially prejudice your rights under this Agreement. You must, at our reasonable request, execute any documents necessary to give effect to a permitted assignment.

A waiver of any provision of the Agreement must be made in writing to be effective, and our waiver of a breach of any provision or right contained in the Agreement will not constitute a continuing waiver or waive any subsequent breach or right. You shall, in relation to this Agreement, comply with all Relevant Laws which are applicable to you, including but not limited to export control laws and regulations, economic, trade and financial sanctions laws, regulations, embargoes, restricted state lists or restrictive measures administered.

If any provision of the Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to affect the parties’ intention, and the remaining provisions will not be affected. The Supplemental Terms will prevail in the event of a conflict with the Terms of Service, but only to the extent such conflicting terms relate to the Services governed by those Supplemental Terms. In all other cases, the Terms of Service will prevail in the event of a conflict with another part of the Agreement, unless such other part of the Agreement intends and expressly states that the specific term supersedes. Further, the fact that a part of the Agreement does not contain a provision relating to particular matter, which another part of the Agreement does have a provision for, shall not be deemed to give rise to a conflict.

Any Kudosity Affiliate is entitled to enforce any provision of this Agreement which confers a benefit on it (however the consent of such Kudosity Affiliate shall not be required to amend or terminate the Agreement in accordance with its term). There are no other third party beneficiaries to the Agreement and any Relevant Law, which may grant third party rights, is expressly excluded. The Agreement is the parties’ entire agreement relating to its subject, and supersedes any and all prior oral and written proposals, agreements, understandings and contemporaneous discussions between the parties as to the subject matter.

Neither party has entered into the Agreement (or any part thereof) in reliance upon and nor shall they have any remedy in respect of, any representation or statement (whether made by the other party or any other person) which is not expressly set out in the Agreement. The only remedies available for breach of any representation or statement which was made prior to entry into the Agreement (or any part thereof) and which is expressly set out in the Agreement shall be for breach of contract (although nothing in this Section shall be interpreted or construed as limiting or excluding the liability of either party for any type of fraud).

The terms contained in any purchase order, order form or similar document which you provide, will have no force or effect, and will not be binding upon us. The parties may sign the Agreement (or any part thereof) electronically and in counterparts, each of which is deemed an original and, together, comprise a single document. Each party to this Agreement agrees to use electronic signatures; and be subject to the provisions of the applicable national laws governing electronic signatures.

21. Definitions