Terms of Service

1. Definitions

1.1 Definitions

In these Terms:

"Acceptable Use Policy"

means the policy set out in clause 5.

"Chargeable Event"

means any billable unit of the Services, including but not limited to a message sent or received, an API call, a minute of voice, a session, or any other unit metered by Realay.

"Content"

means any data, message content, recipient lists, files, instructions, configurations, and other materials submitted to the Services by or on behalf of Customer.

"Credits"

means pre-paid units of value purchased by Customer for use against Chargeable Events.

"End-User"

means any individual or entity that receives, sends, or otherwise interacts with communications transmitted through the Services as a result of Customer's use of the Services.

"Fees"

means all fees, charges and other amounts payable by Customer for the Services.

"Personal Information"

has the meaning given in the Privacy Act 1988 (Cth) and includes "personal data" as defined under any other applicable data protection law.

"Supplier"

means any third-party provider whose services Realay uses to deliver the Services, including communications platform providers, telecommunications carriers, network operators, messaging aggregators, hosting providers, and any of their respective sub-contractors.

"Supplier Terms"

means the terms (including acceptable use policies, codes of conduct and data processing terms) imposed on Realay by any Supplier from time to time.

2. The Services

2.1 Nature of the Services

Realay provides a software platform that enables Customer to send, receive, route and manage business communications (including SMS, voice, email, OTT messaging, conversational and contact-centre features) through one or more Suppliers. Realay is not a telecommunications carrier and does not generate or originate the underlying network connectivity itself.

2.2 Resale model

Customer acknowledges that the Services are delivered, in whole or in part, through Suppliers selected by Realay in its discretion. Realay may add, remove, replace, substitute or change the routing of Suppliers at any time without notice and without liability, provided that the core functionality of the Services for which Customer has paid is not materially diminished. Customer has no right to require the use of any particular Supplier or route.

2.3 Modifications

Realay may modify, update, enhance or restructure the Services, the documentation, and any service description at any time and in its sole discretion. Realay will use reasonable efforts to notify Customer of changes that materially diminish the functionality of the Services.

2.4 Beta features

Realay may make pre-release, alpha, beta, trial or experimental features available to Customer. Such features are provided "as is", without any warranty, indemnity, support or service commitment, may be modified or withdrawn at any time, and are not subject to any service level commitment.

2.5 No exclusivity

Nothing in these Terms grants Customer any exclusivity in respect of any Supplier, route, geography, channel, or category of End-User.

3. Accounts, credentials and security

3.1 Account information

Customer must provide accurate, complete and current information in connection with its account, and must keep that information up to date. Realay may suspend or terminate an account that contains inaccurate or incomplete information.

3.2 Credentials

Customer is responsible for safeguarding all usernames, passwords, API keys, tokens and other credentials issued to it or selected by it ("Credentials") and must not share them with any unauthorised person or attempt to circumvent Realay's authentication systems.

3.3 Account activity

Customer is solely and unconditionally responsible for all activity occurring on its account, whether authorised by it or not, and for all Fees and other liabilities incurred through the use of its Credentials. Realay is not liable for any loss or damage arising from any unauthorised use of Customer's account, except to the extent such loss is directly caused by Realay's wilful misconduct.

3.4 Notification

Customer must notify Realay immediately at [email protected] of any actual or suspected unauthorised access to or use of its account, breach of Credentials, or other security incident affecting its use of the Services. Customer must cooperate fully with Realay in investigating and remediating any such incident.

3.5 Multi-factor authentication

Customer must enable and maintain multi-factor authentication on every account where it is offered. Customer assumes the risk of any unauthorised activity on an account on which it has not enabled available security controls.

4. Customer obligations and warranties

4.1 Compliance with law

Customer warrants that, in its use of the Services, it will comply with all laws, regulations, codes of conduct and industry rules applicable to it and to the End-Users it communicates with, including (without limitation) the Privacy Act 1988 (Cth), the Spam Act 2003 (Cth), the Telecommunications Act 1997 (Cth), the Australian Consumer Law, the Do Not Call Register Act 2006 (Cth), the General Data Protection Regulation (EU) 2016/679, the UK GDPR and Data Protection Act 2018, the Telephone Consumer Protection Act (TCPA), the Controlling the Assault of Non-Solicited Pornography And Marketing Act (CAN-SPAM), the California Consumer Privacy Act and California Privacy Rights Act, the WASPA Code of Conduct, and any other applicable consumer protection, telemarketing, communications, anti-spam, anti-fraud, anti-money-laundering and data protection laws ("Applicable Laws").

4.2 Consent and authority

Customer warrants that, before any communication is sent through the Services to an End-User, Customer has obtained all consents, opt-ins, authorisations and disclosures required under Applicable Laws, and that it maintains records sufficient to demonstrate that consent on demand. Customer must process opt-out and unsubscribe requests as soon as practicable, at no charge to End-Users, and in any event within five (5) Business Days of receipt, in accordance with section 18 of the Spam Act 2003 (Cth). Without limiting the foregoing, Customer must include in every commercial electronic message sent through the Services a clear and accurate identification of the sender, accurate contact details for the sender, and a functional, free unsubscribe facility, in accordance with sections 17 and 18 of the Spam Act 2003 (Cth) and any other Applicable Laws of equivalent effect.

4.3 Content responsibility

Customer is solely responsible for all Content. Realay does not generally pre-screen, monitor or moderate Content; however, Realay may apply automated and manual detection, sampling, throttling, blocking, redirecting and reporting in connection with the Acceptable Use Policy, Supplier Terms, scam and abuse detection, and Realay's lawful regulatory obligations, and assumes no responsibility for Content. Customer warrants that the Content does not breach any Applicable Law, the Acceptable Use Policy, or any third party's rights (including intellectual property, privacy, publicity, or contractual rights).

4.4 Compliance with Supplier Terms

Customer acknowledges that Realay's ability to provide the Services depends on its arrangements with Suppliers, and that Suppliers impose conditions, restrictions, codes of conduct, throughput limits, content rules and acceptable use policies that bind Realay. Customer agrees to comply with all such Supplier Terms as if they applied directly to it. Realay will, on request, make available a current summary of the material Supplier Terms applicable to a given channel; the most restrictive Supplier Term in effect for a given channel will prevail.

4.5 Forecasts and capacity

Customer must, on request, provide Realay with a reasonable forecast of its expected usage so Realay can plan capacity. Realay is not obliged to deliver volumes materially in excess of any most recent forecast and may throttle, queue, delay or reject Chargeable Events that exceed reasonable capacity limits.

4.6 Records

Customer must maintain accurate records of consents, opt-outs, sender identities, and all other matters relevant to its compliance with Applicable Laws and these Terms for at least the longer of (a) seven (7) years; or (b) any period required by Applicable Law, and must provide them to Realay (and to any Supplier or regulator) on request.

4.7 Sender IDs and registration

Customer is responsible for ensuring that all sender identifiers (including alphanumeric sender IDs, virtual numbers, short codes and similar identifiers) used in connection with its traffic are accurate, lawful, and registered with any applicable register or scheme operated by ACMA, a Supplier, or any other body with authority over the relevant channel (including, where applicable, the Australian SMS Sender ID Register). Realay may, without notice or liability, refuse to transmit, block, throttle or delay any traffic submitted under an unregistered, ineligible or prohibited sender identifier, and may pass through to Customer any registration, levy, surcharge or fee imposed in connection with sender ID registration.

5. Acceptable Use Policy

5.1 Prohibited uses

Customer must not use, attempt to use, or permit any third party to use, the Services to:

• send unsolicited commercial communications, spam, bulk unsolicited email, or messages in volumes or frequencies that Realay or any Supplier considers excessive;
• transmit content that is unlawful, fraudulent, deceptive, misleading, defamatory, obscene, pornographic, harassing, threatening, hateful, harmful to minors, or that promotes violence, terrorism, illegal drugs, illegal firearms, or illegal gambling;
• send phishing, smishing, vishing, social engineering, identity theft, scam, ransomware, malware, or any other deceptive or malicious content, or content that impersonates any person or entity;
• send communications related to industries or use cases prohibited by any Supplier or by any Applicable Law (including, where prohibited, gambling, adult content, prescription pharmaceuticals, debt collection, multi-level marketing, cryptocurrency promotions, high-risk financial products, and short-code lookalikes);
• infringe any third party's intellectual property, privacy, publicity, contract or other rights;
• circumvent, disable, attempt to defeat or interfere with any security feature or rate limit of the Services or any Supplier;
• reverse engineer, decompile, disassemble, scrape, mirror or attempt to derive the source code or underlying ideas of any part of the Services, except to the extent expressly permitted by Applicable Law;
• send messages that originate from a falsified or unauthorised sender ID or that misrepresent the originator;
• register, request, or use any sender identifier that resembles, imitates, or could reasonably be confused with the name, brand, sender identifier or short code of any bank, government agency, telecommunications carrier, regulator, public service or other organisation that Customer is not authorised to represent;
• use the Services to develop, train, benchmark or evaluate any product or service that competes with the Services;
• use the Services in any manner that may bring Realay, any Supplier, any network operator or any regulator into disrepute, or that may damage, disable or impair the Services or any third-party network.

5.2 Enforcement

Realay may, in its sole discretion and without prior notice or liability, monitor traffic for suspected breaches, refuse to transmit, block, throttle, queue, redirect, sample, copy or delay any Chargeable Event, suspend Customer's access to the Services in whole or in part, and report any suspected unlawful activity to law enforcement, Suppliers, network operators or regulators. Realay is not obliged to deliver, and Customer is not entitled to any refund, chargeback or compensation in respect of, any Chargeable Event blocked or refused under this clause.

5.3 Compliance costs

Customer is liable for, and must reimburse Realay on demand for, any chargebacks, fines, levies, surcharges, sanctions, regulatory penalties, blocking fees or other costs imposed on Realay by any Supplier, network operator, regulator or court as a result of Customer's use of the Services or breach of this clause 5.

6. Fees, payment, credits and refunds

6.1 Fees

Customer must pay all Fees for the Services in accordance with the pricing communicated to it via the Realay portal, an order form, or any other written or electronic notice, plus any applicable taxes, levies, surcharges and bank charges. Pricing is exclusive of GST and any other indirect taxes unless expressly stated otherwise.

6.2 Pre-payment and Credits

Unless otherwise agreed in writing, the Services are provided on a pre-paid basis. Customer must purchase Credits in advance, and the Services will draw down against those Credits as Chargeable Events occur. Realay is not obliged to deliver Chargeable Events for which sufficient Credits are not available, and may suspend the Services if Credits are exhausted.

6.3 Credit expiry

Credits expire twelve (12) months after the date of purchase (or any shorter period communicated to Customer at the time of purchase). Expired Credits are forfeited and are not refundable, transferable or convertible to cash.

6.4 Post-paid (where agreed)

Where Realay agrees in writing to invoice Customer post-paid, invoices are payable within fifteen (15) days of the invoice date. Overdue amounts accrue interest at the higher of (a) 1.5% per month (compounding monthly); or (b) the maximum rate permitted by Applicable Law, plus reasonable costs of collection (including legal fees on an indemnity basis).

6.5 Price changes

Realay may change Fees, pricing tiers, surcharges and Chargeable Event rates at any time on email or in-portal notice. Price changes take effect on the date specified in the notice, which may be immediate where the change is driven by a change in Supplier, network operator, regulatory or carrier costs. Continued use of the Services after the effective date of a price change constitutes acceptance of the change.

6.6 No refunds

All Fees and Credits are non-refundable. Customer is not entitled to any refund, chargeback or compensation on termination of these Terms, on suspension or restriction of the Services, on a change of Supplier or routing, on the failure of any Chargeable Event to be delivered, or for any other reason, except (a) as expressly required by Applicable Law that cannot be excluded, modified or restricted; or (b) where Realay, in its sole discretion, elects to provide a credit or refund.

6.7 Disputed amounts

Customer must notify Realay in writing of any good-faith dispute over any invoiced amount within ten (10) Business Days of the invoice date, identifying the disputed line items and the basis of the dispute. Undisputed amounts must be paid in full by the due date. Failure to notify a dispute within this period waives Customer's right to dispute the amount.

6.8 Set-off

Realay may set off any amounts owing to Customer (whether under these Terms or otherwise) against any amounts owing by Customer to Realay. Customer may not exercise any right of set-off, deduction, withholding or counterclaim against Fees.

6.9 Taxes

Customer is responsible for all taxes, levies, duties, withholdings and similar charges arising in connection with its use of the Services, other than taxes on Realay's net income. Where withholding tax applies, Customer must gross up the payment so that Realay receives the full invoiced amount.

7. Term, suspension and termination

7.1 Term

These Terms take effect when Customer first accepts them or first uses the Services and continue until terminated in accordance with this clause 7 (or, where a fixed term is specified in an order form, until the expiry of that term).

7.2 Termination by Customer

Customer may terminate these Terms by giving Realay thirty (30) days' written notice. Termination by Customer does not entitle Customer to any refund of Fees or unused Credits, and Customer remains liable for all amounts payable in respect of the period up to and including the effective date of termination and for any minimum commitment specified in any applicable order form.

7.3 Termination by Realay

Realay may terminate these Terms or any part of the Services for convenience on thirty (30) days' written notice.

7.4 Termination for cause

Either party may terminate these Terms with immediate effect by written notice if the other party (a) commits a material breach of these Terms which is not capable of remedy, or which is capable of remedy and is not remedied within fourteen (14) days of written notice requiring remedy; (b) becomes insolvent, makes any composition or arrangement with its creditors, has a receiver, administrator or liquidator appointed, or ceases to carry on business; or (c) is in breach of any Applicable Law in connection with its use or provision of the Services.

7.5 Suspension

Realay may suspend Customer's access to the Services in whole or in part, immediately and without prior notice, where: (a) Customer is in breach of these Terms (including the Acceptable Use Policy); (b) Realay reasonably suspects unauthorised, fraudulent, abusive or illegal activity on the account; (c) any Supplier or regulator requires the suspension; (d) suspension is necessary to protect the security or integrity of the Services, the Suppliers, any network or any End-User; (e) Customer fails to pay any Fees when due; or (f) Customer's account is inactive for six (6) consecutive months.

7.6 Consequences of termination

On termination of these Terms (a) all rights granted to Customer cease immediately; (b) all amounts owing to Realay become immediately due and payable; (c) Realay will return or delete Personal Information processed on behalf of Customer in accordance with the Data Processing Addendum (Annex 1); (d) Customer's Credits and any other pre-paid amounts are forfeited; (e) Realay may delete Customer Content and account data after a reasonable period; and (f) clauses that by their nature should survive termination (including clauses 4, 5, 6, 7.6, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17, and the DPA in Annex 1) survive.

7.7 Cumulative remedies

Termination is in addition to, and not in substitution for, any other right or remedy available to Realay at law or in equity.

8. Service availability and "as is" basis

8.1 Reasonable efforts

Realay will use reasonable efforts to make the Services available, but does not warrant that the Services will be uninterrupted, error-free, timely, secure, complete or fit for any particular purpose. Customer acknowledges that the Services depend on Suppliers, network operators, public networks and other third parties outside Realay's control.

8.2 No service level commitment

Except where Realay expressly agrees a service level in a written, signed order form, the Services are provided without any service level commitment. Where a service level is offered, the sole and exclusive remedy for any failure to meet that service level is the service credit specified in the relevant order form, capped at 10% of the Fees paid in the affected month, and is not cumulative with any other remedy.

8.3 Maintenance and changes

Realay may suspend the Services for routine, emergency or security maintenance at any time. Realay will use reasonable efforts to give advance notice of planned maintenance but is not obliged to do so for emergency or security maintenance.

8.4 Disclaimer

TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND TERMS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE (INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, AVAILABILITY, OR THAT THE SERVICES WILL DELIVER ANY PARTICULAR COMMERCIAL OUTCOME), ARE EXCLUDED. THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE".

8.5 Australian Consumer Law

Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy under the Australian Consumer Law that cannot lawfully be excluded, restricted or modified. Where the Services are not of a kind ordinarily acquired for personal, domestic or household use, Realay's liability for breach of any non-excludable consumer guarantee is limited, at Realay's option, to (a) re-supply of the Services; or (b) the cost of having the Services re-supplied.

9. Data protection

9.1 Roles

In respect of Personal Information processed by Realay on behalf of Customer in connection with the Services, Customer is the controller (or business or principal, as applicable) and Realay is the processor (or service provider or supplier, as applicable). Customer determines the purposes and means of processing; Realay processes Personal Information only on Customer's documented instructions, as set out in these Terms and the Data Processing Addendum at Annex 1.

9.2 Customer responsibility

Customer is solely responsible for (a) the lawfulness, fairness and transparency of its processing; (b) obtaining and maintaining all consents, authorisations and disclosures required under Applicable Laws; (c) responding to End-User rights requests (access, correction, deletion, opt-out, do-not-call, etc.); (d) the accuracy of Content and recipient lists; and (e) complying with any data localisation, cross-border transfer and sectoral requirements applicable to it.

9.3 Sub-processing

Customer authorises Realay to engage Suppliers and other sub-processors in connection with the Services, and to add, replace or remove sub-processors from time to time. Realay maintains a current list of sub-processors and will make it available to Customer on reasonable written request, subject to confidentiality obligations no less protective than those in clause 10. Realay will use reasonable efforts to notify Customer of material additions or replacements. Customer's sole remedy for objection to a sub-processor is to terminate the affected Services under clause 7.2 (with no refund).

9.4 International transfers

Customer acknowledges and authorises the transfer of Personal Information to, and processing of Personal Information in, jurisdictions outside Customer's country of establishment, including via Suppliers located outside Australia, the European Union, the United Kingdom or the United States. Realay will implement appropriate transfer mechanisms (such as standard contractual clauses, the UK addendum, or equivalent) where required by Applicable Law.

9.5 Resultant Data

Customer grants Realay a perpetual, irrevocable, royalty-free, worldwide, transferable and sub-licensable licence to generate, retain and use anonymised, aggregated and de-identified data derived from Customer's use of the Services for the purpose of operating, improving, securing, benchmarking and developing the Services, provided that such data does not directly identify Customer or any End-User.

9.6 DPA

The Data Processing Addendum at Annex 1 forms part of these Terms and applies to the extent Realay processes Personal Information on behalf of Customer.

9.7 Privacy Policy

Realay's Privacy Policy describes how Realay handles Personal Information that it collects in its own right (including from Customer's representatives, account holders, billing contacts, and visitors to Realay's website), as distinct from Personal Information processed on behalf of Customer in providing the Services (which is governed by this clause 9 and the DPA at Annex 1). The Privacy Policy forms part of these Terms.

10. Confidentiality

10.1 Definition

"Confidential Information" means any non-public information disclosed by one party (the "Discloser") to the other (the "Recipient"), whether before or after the date of these Terms, that is identified as confidential or that a reasonable recipient would understand to be confidential, including pricing, product roadmaps, security information, customer lists and the terms of any order form. Confidential Information does not include information that (a) is or becomes publicly known through no fault of the Recipient; (b) was rightfully known by the Recipient before disclosure; (c) is rightfully obtained by the Recipient from a third party without breach of a confidentiality obligation; or (d) is independently developed by the Recipient without use of the Discloser's Confidential Information.

10.2 Obligations

The Recipient must (a) use the Confidential Information only for the purposes of these Terms; (b) protect it with at least the same degree of care it uses for its own confidential information of a similar nature, and in no event less than reasonable care; and (c) disclose it only to its personnel and professional advisers who have a need to know and who are bound by obligations of confidentiality at least as protective as those in this clause 10.

10.3 Compelled disclosure

The Recipient may disclose Confidential Information to the extent required by law, regulator or court order, provided that, where lawfully permitted, it gives the Discloser prompt notice and reasonable cooperation in seeking a protective order.

11. Intellectual property

11.1 Realay IP

As between the parties, Realay owns and retains all right, title and interest (including all intellectual property rights) in and to the Services, the Realay platform, the documentation, all related software, APIs, designs, processes, know-how and any improvements, derivatives or modifications, including any feedback, suggestions or ideas provided by Customer.

11.2 Licence to Customer

Subject to these Terms and Customer's payment of Fees, Realay grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable licence to access and use the Services for Customer's internal business purposes during the term of these Terms.

11.3 Customer Content

Customer retains ownership of its Content and grants Realay (and Realay's Suppliers and sub-processors) a non-exclusive, worldwide, royalty-free licence to host, store, process, transmit, copy, adapt, route and otherwise use the Content as necessary to provide the Services and to comply with Applicable Law.

11.4 Restrictions

Customer must not (a) copy, modify, translate, adapt or create derivative works of any part of the Services; (b) reverse engineer, decompile or disassemble any part of the Services; (c) sublicense, lease, sell, resell, rent, distribute or otherwise commercially exploit the Services other than as expressly permitted; (d) remove or alter any proprietary notices; or (e) use the Services to develop a competing product or service.

11.5 Trademarks

Customer must not use any of Realay's names, logos or trademarks without Realay's prior written consent, except that Realay may use Customer's name and logo to identify Customer as a customer of Realay on Realay's website and marketing materials.

12. Limitation of liability

12.1 Excluded losses

TO THE MAXIMUM EXTENT PERMITTED BY LAW, REALAY WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, BUSINESS, OPPORTUNITY, ANTICIPATED SAVINGS, GOODWILL, REPUTATION, DATA, CONTENT, OR USE, IN EACH CASE WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, EQUITY OR OTHERWISE, AND WHETHER OR NOT FORESEEABLE.

12.2 Cap

TO THE MAXIMUM EXTENT PERMITTED BY LAW, REALAY'S TOTAL AGGREGATE LIABILITY TO CUSTOMER AND ALL THIRD PARTIES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND THE SERVICES, WILL NOT EXCEED THE LESSER OF (A) THE TOTAL FEES PAID BY CUSTOMER TO REALAY IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY; AND (B) AUD $10,000.

12.3 Specific exclusions

Without limiting clauses 12.1 and 12.2, Realay is not liable for any loss or damage arising from (a) Customer's breach of these Terms (including the Acceptable Use Policy) or any Applicable Law; (b) any act, omission, failure, outage, latency, blocking, throttling, change in pricing, change in coverage, deprecation or termination by any Supplier, network operator, carrier or third party; (c) any inaccuracy, error, omission or unlawful nature of Content or recipient data; (d) any unauthorised access to or use of Customer's account or Credentials; (e) any End-User's receipt or non-receipt of any communication; or (f) any matter that, under these Terms, is Customer's responsibility.

12.4 Allocation of risk

Customer acknowledges that the allocation of risk in this clause 12 reflects the Fees charged by Realay and is fundamental to the basis of the bargain between the parties. The limitations and exclusions in this clause 12 apply even if any limited remedy fails of its essential purpose.

12.5 Australian Consumer Law

Nothing in this clause 12 limits or excludes any liability that cannot lawfully be limited or excluded under the Australian Consumer Law or other Applicable Law.

13. Indemnification

13.1 Customer indemnity

Customer must defend, indemnify and hold harmless Realay, its affiliates, and their respective officers, directors, employees, agents, Suppliers and sub-processors (the "Indemnified Parties") from and against any and all claims, demands, actions, proceedings, losses, liabilities, fines, penalties, costs and expenses (including reasonable legal fees on an indemnity basis) ("Claims") arising out of or in connection with:

• Customer's use of the Services or any Content (whether or not authorised);
• any breach by Customer of these Terms (including the Acceptable Use Policy), any Supplier Term, or any Applicable Law;
• any allegation that any Content infringes the rights of any third party (including intellectual property, privacy, publicity, contractual or other rights);
• any claim or complaint by any End-User, recipient, or third party arising out of any communication transmitted using Customer's account, including in respect of consent, opt-out, content, accuracy or fraud;
• any chargeback, levy, surcharge, fine or penalty imposed on Realay or any Indemnified Party by any Supplier, network operator, carrier, regulator or court arising from Customer's use of the Services;
• any unauthorised access to or use of Customer's account or Credentials, including any resulting traffic or activity;
• any breach by Customer of clause 9 (Data protection) or the Data Processing Addendum, including any failure to obtain required consents or to honour End-User rights requests;
• Customer's tax obligations under clause 6.9.

13.2 Procedure

An Indemnified Party will (a) promptly notify Customer of the Claim (provided that any failure to do so will not relieve Customer of its indemnity obligations except to the extent Customer is materially prejudiced); (b) at Customer's expense, give Customer reasonable cooperation in the defence of the Claim; and (c) allow Customer to control the defence and settlement, provided that Customer may not settle any Claim that imposes any non-monetary obligation, admission of fault or restriction on the Indemnified Party without that party's prior written consent (not to be unreasonably withheld).

13.3 No vendor indemnity

Customer acknowledges that Realay does not provide any indemnity to Customer (including any indemnity in respect of intellectual property infringement or data protection), and Customer's sole and exclusive remedy in respect of any Claim against it relating to the Services is whatever indemnity (if any) Realay is able to recover from the relevant Supplier and elects, in its sole discretion, to pass through to Customer.

14. Force majeure

14.1 Force majeure

Realay is not liable for any delay or failure to perform its obligations under these Terms to the extent caused by an event beyond its reasonable control, including (a) acts of God, fire, flood, earthquake, pandemic, epidemic; (b) war, terrorism, civil disturbance, riot; (c) acts of any government, regulator, or court; (d) labour disputes, strikes; (e) failure, malfunction, congestion or unavailability of any telecommunications, internet, power, hosting, or other utility service; (f) acts, omissions, failures, outages, throttling, blocking, deprecation or termination by any Supplier, network operator, carrier, sub-processor or any other third party; or (g) cyber-attacks, denial-of-service attacks or other malicious activity.

15. Assignment, changes and notices

15.1 Assignment by Realay

Realay may assign, novate, transfer, sub-contract or otherwise deal with its rights and obligations under these Terms, in whole or in part, at any time and without Customer's consent.

15.2 Assignment by Customer

Customer may not assign, novate, transfer, sub-license or otherwise deal with its rights or obligations under these Terms, in whole or in part, without Realay's prior written consent (which Realay may withhold in its sole discretion). Any change of control of Customer is deemed an assignment for the purposes of this clause.

15.3 Changes to these Terms

Realay may amend these Terms at any time by posting an updated version on its website and (where the change is material) by giving written notice. Changes take effect on the date specified in the notice or, if none is specified, fourteen (14) days after posting. Continued use of the Services after the effective date of a change constitutes acceptance of the change. If Customer does not accept a change, its sole remedy is to terminate the Services under clause 7.2 before the effective date of the change.

15.4 Notices

Notices to Realay must be sent to [email protected]. Notices to Customer may be sent to the email address registered on its account, by in-portal notification, or to any other contact details Customer has provided. Notices are deemed received on the next Business Day after sending.

16. Governing law and dispute resolution

16.1 Governing law

These Terms are governed by the laws of Victoria, Australia.

16.2 Jurisdiction

The parties submit to the exclusive jurisdiction of the courts of Victoria and the courts entitled to hear appeals from those courts.

16.3 Escalation

Before commencing court proceedings (other than for urgent injunctive or interlocutory relief, or for the recovery of undisputed Fees), the parties must first attempt in good faith to resolve any dispute by escalation between authorised representatives, for a period of at least fifteen (15) Business Days from written notice of the dispute.

17. General

17.1 Entire agreement

These Terms (including the Data Processing Addendum at Annex 1, the Acceptable Use Policy in clause 5, any order form, and any policy referenced from these Terms) constitute the entire agreement between the parties in respect of their subject matter, and supersede all prior agreements, representations and understandings. Any additional or conflicting terms in any purchase order, vendor portal, standard form or correspondence issued by Customer are of no effect.

17.2 No reliance

Each party acknowledges that, in entering into these Terms, it has not relied on any representation, warranty or statement except those expressly set out in these Terms.

17.3 Severability

If any provision of these Terms is held to be invalid, illegal or unenforceable, that provision will be severed and the remaining provisions will continue in full force and effect.

17.4 Waiver

No failure or delay by Realay to exercise any right under these Terms operates as a waiver of that right.

17.5 Independent contractors

The parties are independent contractors. Nothing in these Terms creates a partnership, joint venture, employment or agency relationship.

17.6 Third parties

These Terms do not confer any benefit on any person other than the parties, except that the Indemnified Parties named in clause 13 may enforce that clause.

17.7 Counterparts and electronic signature

Where signed, these Terms may be executed in counterparts, including by electronic signature.

17.8 Survival

Clauses 1, 4, 5, 6, 7.6, 8.4–8.5, 9, 10, 11, 12, 13, 14, 15, 16 and 17, together with the DPA at Annex 1, survive termination.

17.9 Business Day

"Business Day" means a day other than a Saturday, Sunday or public holiday in Victoria, Australia.

A1. Definitions

Capitalised terms not defined in this DPA have the meanings given in the Terms. "Applicable Data Protection Law" means all laws and regulations applicable to the processing of Personal Information under this DPA, including the Privacy Act 1988 (Cth) and the Australian Privacy Principles, the General Data Protection Regulation (EU) 2016/679, the UK GDPR, the UK Data Protection Act 2018, the California Consumer Privacy Act, and any laws implementing or supplementing the foregoing.

A2. Roles and instructions

A2.1 Roles

Customer is the controller (or business or principal, as applicable) of Personal Information processed under the Terms; Realay is the processor (or service provider, as applicable). Where Realay engages Suppliers and other sub-processors, those entities are sub-processors of Realay.

A2.2 Instructions

Realay will process Personal Information only on the documented instructions of Customer (which include the Terms, Customer's configurations within the Realay portal and APIs, and any further written instructions reasonably accepted by Realay), unless required to do otherwise by Applicable Data Protection Law. Realay will notify Customer if, in its opinion, an instruction infringes Applicable Data Protection Law (but is not obliged to monitor Customer's instructions for legality).

A3. Confidentiality and security

A3.1 Confidentiality

Realay will ensure that personnel authorised to process Personal Information are bound by appropriate confidentiality obligations.

A3.2 Security

Realay will implement and maintain appropriate technical and organisational measures designed to protect Personal Information against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access, taking into account the state of the art, the nature of the processing, the cost of implementation, and the risks. Customer is responsible for configuring its account, enabling available security features (including multi-factor authentication), and using the Services in accordance with Realay's published security recommendations. Customer is solely liable for any incident resulting from its failure to do so.

A4. Sub-processors

A4.1 Authorisation

Customer authorises Realay to engage Suppliers and other sub-processors in connection with the Services, and to add, replace or remove sub-processors from time to time. Realay imposes on each sub-processor data protection obligations no less protective than those in this DPA, to the extent applicable to the services provided by that sub-processor.

A4.2 Notification

Realay maintains a current list of sub-processors and will make it available to Customer on reasonable written request, subject to confidentiality obligations. Realay will use reasonable efforts to notify Customer of material additions or replacements of sub-processors that materially affect the processing of Personal Information on behalf of Customer.

A4.3 Objection

If Customer reasonably objects to a new sub-processor on data protection grounds, Customer's sole and exclusive remedy is to terminate the affected Services under clause 7.2 of the Terms (with no refund).

A4.4 Liability

Realay's liability for sub-processor acts and omissions is limited as set out in clause 12 of the Terms.

A5. International transfers

Customer authorises the transfer of Personal Information across borders, including to jurisdictions outside Australia, the EU, the UK, and the US, in connection with the Services. Realay will implement appropriate transfer mechanisms (such as standard contractual clauses, the UK addendum, or equivalent) where required by Applicable Data Protection Law.

A6. Assistance

A6.1 Data subject requests

Realay will, taking into account the nature of the processing and at Customer's expense, provide reasonable assistance to enable Customer to respond to End-User rights requests. Where Realay receives a request directly, it will (where lawfully permitted) refer the End-User to Customer.

A6.2 Breach notification

Realay will notify Customer of any personal data breach affecting Personal Information processed on behalf of Customer without undue delay after becoming aware of it, and (where reasonably practicable) within seventy-two (72) hours of becoming aware. Realay will provide such information as it reasonably has available to assist Customer in meeting its breach notification obligations. Customer is primarily responsible for notifications to regulators and End-Users in respect of breaches affecting Personal Information for which Customer is the controller. Nothing in this clause limits or excludes Realay's own notification obligations under Part IIIC of the Privacy Act 1988 (Cth) or other Applicable Data Protection Law where they apply to Realay as an APP entity in its own right.

A6.3 DPIAs and audits

Realay will provide Customer with such information as is reasonably necessary to demonstrate Realay's compliance with this DPA. On reasonable prior written notice, and not more than once per year (except where required by Applicable Data Protection Law or following a confirmed personal data breach), Customer may request an audit, which will be satisfied by Realay providing a current third-party audit report (such as SOC 2 or equivalent) where one is reasonably available. Any further audit will be at Customer's expense, conducted by an independent auditor agreed by both parties, and subject to confidentiality obligations.

A7. Retention, return and deletion

A7.1 Retention during the term

Realay retains Personal Information processed on behalf of Customer (including message content, recipient identifiers, message metadata, and related operational data) for a minimum of three (3) months from the relevant Chargeable Event, message or other operational transaction, except where Applicable Law requires a shorter period. Realay does not guarantee retention beyond this three-month minimum and may delete, sample, archive, anonymise or aggregate such Personal Information at any time at its discretion. Customer is responsible for exporting and retaining on its own systems any Personal Information it requires for longer-term compliance, audit, business continuity or End-User-rights-response purposes.

A7.2 Return and deletion on termination

On termination of the Terms or this DPA, and at Customer's written election made within thirty (30) days of termination, Realay will return or delete Personal Information processed on behalf of Customer (except to the extent retention is required by Applicable Law or for backup, audit or dispute purposes, in which case the Personal Information will remain subject to this DPA for as long as it is retained).

A8. Australian Privacy Act

To the extent the Privacy Act 1988 (Cth) and the Australian Privacy Principles apply, Realay will (a) handle Personal Information in a manner consistent with the APPs to the extent reasonably necessary to provide the Services; (b) cooperate with Customer in responding to access, correction and complaint requests; and (c) notify Customer of any data breach to which the Notifiable Data Breaches scheme applies. Customer is responsible for any further compliance, including assessing whether a breach is an "eligible data breach" and notifying the OAIC.

A9. Details of processing

Subject matter and duration

The provision of the Services for the term of the Terms.

Nature and purpose

The transmission, routing, storage, reporting on and analysis of communications between Customer's systems and End-Users via cloud communication channels (SMS, voice, email, OTT messaging, and conversational/contact-centre features), as configured by Customer.

Categories of data subjects

Customer's End-Users, customers, employees, contractors, and any other natural persons whose Personal Information Customer chooses to process via the Services.

Categories of Personal Information

Identifiers (name, phone number, email, account ID), communication content and metadata (timestamps, sender/recipient, channel, status), device and usage data, and any other Personal Information Customer elects to submit. Special categories of Personal Information are processed only to the extent Customer or its End-Users include such data in Content; Customer is solely responsible for the lawful basis for any such processing.

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