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.

You acknowledge that the Terms of Service may be updated from time to time in accordance with the Changes section below, and that you are responsible for periodically reviewing the current version published on the Kudosity website.

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If you have a Prior Agreement, it shall be deemed terminated and superseded (to the extent it covers the Services provided pursuant to these Terms of Service and/or a Service Order) upon the applicable Service Start Date and without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.

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 malicious code;

g. To circumvent, disable, violate, or otherwise interfere with the security or integrity of the Services;

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;

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.

You are also responsible for securing, protecting, and safeguarding access to your Account.

You will promptly update any Account Information if it changes and notify us of any unauthorised use of your Account and/or Credentials.

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;

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.

i. Customer Responsibilities: You must use Generative AI only in accordance with applicable laws, this Agreement, and reasonable standards of acceptable use.

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.

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.

You will pay all Fees and Taxes within the period specified in the applicable Service Order or within fourteen (14) days from the date of invoice, whichever is longer.

Fees will be calculated in accordance with the rates and pricing made available to you by Kudosity from time to time.

Unless stated otherwise, Non-Recurring Fees will be invoiced monthly in arrears and Recurring Fees may be billed in advance.

b. Pre-pay Customers

Where you have signed a Service Order for pre-pay Services or if you have not signed a Service Order, you will be a pre-pay Customer.

Payments will be made through prepayments applied to your Credit Balance.

Purchased credit must be used within 365 days from purchase.

Unused credit may expire at the end of its validity period.

Refund requests for unused Credit Balance can only be made within the validity period and will be subject to a $50 USD processing fee where approved.

c. Set-Off

You will not have a right of deduction or set-off except where required by Relevant Laws.

d. No Waiver

Any delay by Kudosity in invoicing or collecting Fees does not waive its rights to recover those Fees.

e. Non-payment

In the event of non-payment or default, Kudosity may suspend Services and commence collection procedures or legal action where appropriate.

f. Credit Limit

Your Credit Limit will be determined by Kudosity and may be adjusted from time to time.

If the Accrued Liability exceeds the Credit Limit you must immediately pay the amount required to bring the balance within limit.

g. Fee Changes

Unless otherwise stated in a Service Order, Kudosity may vary pricing with reasonable prior notice.

Where pricing changes arise due to increased third-party carrier costs, such changes may take effect from the date of notice.

h. Fees and Taxes are non-refundable

Fees exclude applicable taxes which must be paid by the Customer.

Interest may be charged on overdue amounts at up to 5% per annum.

i. Liability for Blocked Messages, API Misconfigurations and Other Non-Refundable Fees

You acknowledge that Kudosity is not liable for fees incurred for messages that are blocked, filtered, or rejected by carriers, regulatory bodies, or recipient networks.

Customers remain responsible for securing their Accounts and API integrations.

j. Chargebacks and Payment Disputes

If you initiate a chargeback and the payment is later determined to be valid, you agree to reimburse Kudosity for any chargeback fees and related costs incurred.

Failure to do so may result in suspension or termination of Services.

k. Number Porting and Administrative Fees

You acknowledge and agree that administrative fees may apply to the administration and processing of number porting requests.

These fees are set out in the Kudosity standard rate card or pricing schedule, as updated from time to time and made available through the Kudosity platform or otherwise communicated to you.

These administrative fees cover the operational costs associated with verifying, coordinating, and executing the porting process with carriers and service providers.

By submitting a number porting request, you agree to pay all applicable administrative fees specified in the applicable rate card or pricing schedule.

Kudosity reserves the right to withhold or delay processing of a porting request until any outstanding administrative fees have been paid in full.

8. Term and Termination, Suspension, Survival

a. Term

The Agreement takes effect as of the earlier of:

(i) your use of any Services
(ii) your acceptance of the Terms of Service
(iii) your signed agreement to any Service Order

and continues until terminated in accordance with this Agreement.

b. Termination

Either party may terminate a Service with no less than thirty (30) days notice unless otherwise specified.

Kudosity may terminate the Agreement immediately if:

• you become insolvent
• a liquidator, administrator or receiver is appointed
• you enter an arrangement with creditors
• anything analogous to the insolvency events described above occurs in any jurisdiction
• you fail to cure a breach within five (5) days of notice.

c. Suspension

Kudosity may suspend Services where necessary to:

• comply with law
• protect network integrity
• perform maintenance
• address unpaid Fees.

d. Early Termination Charge (ETC)

Where a Service terminates before the expiry of an Initial Term or Renewal Term, Kudosity may charge an ETC representing a genuine pre-estimate of loss.

e. Survival

The following provisions survive termination:

Sections 4(e), 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, and 20.

9. Ownership

Customers retain ownership of their Data.

Kudosity retains ownership of the Services and all associated intellectual property rights.

Any Feedback provided by Customers may be used by Kudosity without restriction.

10. Changes

a. Service Changes

Kudosity may modify Services where reasonably necessary to maintain compliance, functionality, performance, reliability or efficiency.

b. Changes to Terms

Kudosity may amend these Terms from time to time.

Updated Terms will be published at: https://kudosity.com/legal/terms-and-conditions

Continued use of the Services after the effective date constitutes acceptance.

c. Material Changes

If a change materially affects Customer rights or obligations, Kudosity will provide at least 30 days prior notice.

Customers may terminate affected Services before the change takes effect.

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, 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 where 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 fulfil 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
(iii) not making any admission of liability or otherwise acting in any manner which prejudices our ability to fully defend the Claim
(iv) 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 licence for your continued use of that Service
(iii) terminate your subscription to that Service and refund any prepaid Fees relating to that Service not yet provided.

This Section 13(a) shall not apply to the extent the relevant Claim arises as a result of:

(i) Data
(ii) use of the Services in breach of the Agreement
(iii) combination or integration with third-party systems
(iv) use of Services provided for no fee.

Subject to any rights you may have under the Australian Consumer Law or other applicable law that cannot be excluded, the provisions of this Section 13(a) state the sole, exclusive and entire liability of Kudosity and constitute your sole remedy with respect to third-party intellectual property claims.

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:

a. Claims arising from or relating to Data
b. Claims arising from or relating to access to and use of the Services
c. Claims from Service Providers arising from Claims brought by you against such Service Providers
d. Claims by Service Users against Kudosity
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 14(c), neither party will be liable to the other under or in connection with the Agreement for:

(i) any incidental, indirect, special, punitive or consequential losses of any kind
(ii) loss of profits, data, business opportunities, contracts, revenue, goodwill, anticipated savings or financial loss

whether any of the types of loss referred to in this Section 14(a)(ii) are direct or indirect.

We will not be liable for any damages caused by any Service provided for no fee.

b. Subject to Section 14(c), neither party will be liable for any amounts exceeding ten thousand US dollars (USD $10,000) in aggregate.

c. Nothing in this Agreement limits or excludes liability:

(i) in relation to an indemnity given under Section 13
(ii) for payment obligations
(iii) where liability cannot be limited or excluded by law.

15. Confidentiality

Each party will maintain the confidentiality of the Confidential Information of the other party and will not use such Confidential Information except as expressly permitted by the Agreement.

Each party will use the same degree of care to protect Confidential Information as it uses to protect its own confidential information, and in no event less than reasonable care.

Confidential Information may only be disclosed to employees, affiliates or consultants who need to know such information in order to perform obligations under the Agreement.

Confidential Information does not include information that:

a. enters the public domain without breach of the Agreement
b. was already in possession of the receiving party
c. was independently developed without reference to the Confidential Information
d. was received from a third party without restriction
e. is intended for distribution to third parties for messaging purposes.

Either party may disclose Confidential Information where required by law or by a Regulator 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.

If you prefer not to be featured, you may opt out at any time by contacting 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 or 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.

20. General

Neither party will be liable for failures or delays in the performance of its obligations due to causes beyond its reasonable control, including failures or delays caused by Service Providers, acts of God, inclement weather, accidental damage, vandalism, power shortages, floods, lightning, fire, strikes, labour disputes, or compliance with Relevant Laws.

The parties are independent contractors, and no partnership, joint venture, employment, franchise or agency relationship is created by this Agreement.

You shall not assign or transfer your rights or obligations under the Agreement without our prior written consent.

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. Consent is not required where the assignment is to a Kudosity Affiliate and does not materially prejudice your rights.

A waiver of any provision must be made in writing to be effective.

If any provision is unenforceable, that provision will be modified to the extent necessary to make it enforceable and the remaining provisions will remain in effect.

The Supplemental Terms prevail where they conflict with these Terms of Service for the specific Services governed by those Supplemental Terms.

The Agreement constitutes the entire agreement between the parties and supersedes all prior proposals, agreements or understandings relating to its subject matter.

Neither party has entered the Agreement in reliance on any representation not expressly set out in the Agreement.

Purchase order terms supplied by you will have no effect unless expressly accepted by Kudosity.

The parties may sign the Agreement electronically and in counterparts.

21. Definitions