1. Service Term and Conditions Version 1-2015
This Agreement (including those conditions overleaf) sets out terms and conditions on which Straight2voicemail Pvt Ltd ABN 31 611101958 trading as Straight2Voicemail (us we our) will provide services (Services) to Customer (you). This Agreement commences upon you accepting this Agreement and us accepting your order and continues until terminated (Term). This is a continuing Agreement and how you terminate this Agreement is set out in clause 4 below.
2. General Charges and Billing
2.1 Your Plan or pay as you go service and its associated terms and conditions form part of and are incorporated into this Agreement.
2.2 You warrant that you are authorised to make this Agreement and are at least 18 years old.
2.3 We will provide the Services once your application has been processed and accepted and you have provided all relevant information to us. Our acceptance of your order will be indicated by us providing you with a confirmation email confirming your account for access to our broadcast portal through our website (“Website”).
2.4 You will set a username and a password on sign up which you must use to gain access to the Service. You agree to keep your username and password confidential. You must notify us immediately if you lose your username or password or if it is disclosed to anyone. It is your sole responsibility to protect your username and password and to immediately notify us of any suspect usage of your account. You may change your username and password for the Service at any time from your profile.
2.5 You are liable for all charges associated with the Service, even in the event your username or password has been lost or stolen.
2.6 You agree to provide us with correct and complete information about you as requested by us from time to time. Your failure to do so will constitute a breach of this Agreement and may result in the immediate termination of your access to the Service.
2.7 If your Plan has an Initial Term you may not cancel your order (once it has been accepted by us) or Services until completion of the applicable Initial Term.A Plan Initial Term commences for each Service upon us providing you with the confirmation email.
2.8 You agree to pay us for the Services in accordance with relevant terms, charges, rates and fees applying as set out in your selected Plan plus any applicable GST (Charges).
2.9 Unless otherwise stated you must pay the monthly Charges for your monthly Plan in advance and at least seven days prior to the commencement of the relevant month (Due Date). The monthly Charges are for a calendar month and monthly Charges will not be pro-rated for any unused portion of a month. Charges will not be refunded for unused months.
2.10 Where an amount is expressed to be GST exclusive and GST is applicable to that good or service you must pay the GST exclusive amount plus any applicable GST. GST means in respect of GST payable in Australia, GST as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
2.11 Without prejudice to any other remedy or right available to us: if you continue to use the Service after you have cancelled your Service and you have not already paid for that month of Service, or you use the Service without making the relevant monthly Charge in advance you must pay the relevant monthly Charge and you will incur an Administration Fee of $100.00 (plus GST).
2.12 You must pay us for the Services using PayPal or with our prior written consent by electronic funds transfer (EFT).
2.13 If you pay for the Services by way of a EFT direct debit from an account held by you at an approved financial institution and if a direct debit is dishonoured or cancelled, you agree to pay an administration fee of $100.00 plus any dishonour fees (plus GST).
2.14 Without prejudice to any other remedy or right available to us: (a), if you fail to make payment of any amount by its Due Date then we may suspend Services without notice to you, and in addition to the Administration fee set out above we may charge daily compounding interest on overdue amounts at a rate equal to 4% per annum above the interest rates for Local Courts Sydney NSW.
2.15 You are liable for all charges associated with the Service, including but not limited to Charges set out in your Plan.
2.16 You are responsible for and must pay the cost of all telecommunications and internet access charges incurred when using the Service, including any mobile phone call and data charges which are charged by your mobile phone provider, dial up connection charges or charges by any content provider.
2.17 We may vary the terms of this Agreement, including any Charges, rates or fees: (a) without notice to you if the variation arises due to a change in taxation law or other government action; and (b) by providing notice to you of any other variation provided that such notice is after completion of the Initial Term (if any), and in this event where the variation only relates to Charges we will use our reasonable endeavours to provide you with 14 days prior notice.
3. Information, Use, Limitations and Liability
3.1 You acknowledge and agree that the Service utilises a Voice over Internet Protocol (VoIP) service and is subject to available capacity, we do not guarantee that the capacity you require will always be available at any given time.
3.3 You must not use the Services in any way prohibited by any law, regulation or applicable standard or industry code, including, as applicable, the Telemarketing and Research Industry Standard 2007, the Privacy Act 1988 (Cth), the Do Not Call Register Act 2006 (Cth), the Spam Act 2003 (Cth), the Competition and Consumer Act 2010 (Cth) and applicable advertising standards, (together, “Regulations“).
3.4 You agree that you are solely responsible for complying with all Regulations.
3.5 Without limiting clauses 3.3 or 3.4, you must:
(a) comply with the Privacy Act 1988 (Cth) and all other laws which apply to you or us affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of data; and
(b) ensure that you have obtained all permissions from, and made all disclosures to, individuals whose personal information you provide or disclose to us as are necessary for us to provide the Services.
3.6 Except as authorized by us in writing, Services are supplied to you provided that you do not resupply, disseminate or resell or otherwise make Services available to any person other than you.
3.7 You understand that the Internet contains viruses and other computer programs which may destroy or corrupt data on your systems. You agree to check your system for viruses on a regular basis. You agree that we have no control over such programs or viruses and that we are not liable for any damage to, or loss of data caused by a virus or other similar program.
3.8 We will take all reasonable steps using reasonable care and skill to provide you with the Services during the Term, however you recognise that we are dependent upon the operational performance and activities of other organisations mobile networks/ internet service providers involved in the provision and/or use of the Services.
3.9 You acknowledge and agree that: (a) it is not possible for us to provide the Services fault free; and (b) we do not warrant that the Service will be available continuously or free of fault.
3.10 You acknowledge and agree that you are responsible for the operation of the Services and you must ensure that they are used safely, properly, and used, maintained and kept in accordance with our instructions (e.g. security of passwords and Pins, ensuring numbers on the Do Not Call Register are not contacted, hours within which voice messages may be left, information which must be given in messages and information which must be available if requested).[Nick, we suggest including the specific requirements as part of the order process to maximise the chance of customers reading and understanding them.]
3.11 Our Service is in continuous development and consequently any specifications for the Services may be revised from time to time. You are not entitled to reject the Services, or to make a claim in respect of any failure of the same to comply with the specifications unless any departure is material and in this event clause 3.14 may apply.
3.12 Planned maintenance of the Service infrastructure will be undertaken in change windows allocated from time to time, and where reasonably possible this is undertaken at times which cause no or minimal disruption to Service users. Currently we endeavour to keep the change window to between 2am and 5 am Sunday AEST.
3.13 You indemnify and hold us harmless from all liabilities, damages, claims, actions, proceedings and expenses including all legal fees (on a solicitor client basis) arising out of: (a) your use of the Serviceor (b) your breach of any term of this Agreement.
3.14 To the maximum extent permitted by law:
(a) notwithstanding any other clause of this Agreement, in no circumstances will we be liable in contract, tort (including negligence or breach of statutory duty) or otherwise for loss (whether direct or indirect) of profits, business, or anticipated savings, corruption or destruction of data or for any indirect, special or consequential loss whatsoever;
(b) we exclude al conditions, warranties or guarantees express or implied under general law or custom including of merchantability and fitness for a particular purpose; and
(c) we are not liable to you or any person claiming through you for any costs, loss, liability, contribution, expense, damages, consequential, direct, indirect, special or economic loss, contractual, tortuous or otherwise whether caused by us or our agents or contractors , including but not limited tothose arising from: (a) any defect in the products/Services; or (b) any act or omission of us our employees agents or contractors (including negligence); or (c) any failure by us to perform fully the Services; (d) any inability to access the Service, or lack of availability of the Service or (e) any failure to comply with, or breach of, any Regulations,
provided that nothing in this Agreement excludes or limits any implied condition, warranty or guarantee the exclusion or limitation of which would contravene any statute or cause any part of this Agreement to be void or unenforceable, including under Competition and Consumer Act 2010 (Cth) (“Non-excludable Condition”).
3.15To the extent permitted by Law, you agree that our total liability to you or a person claiming through you for breach of a Non-excludable Condition is limited is limited at our option to supplying the Services again or paying for the cost of doing so.
4. Early Termination
4.1 This Agreement applies, during the Term and after an Initial Term (if any), on a month by month basis.
4.2 This is a continuing agreement and, to terminate this Agreement you must: (a) notify us in writing of the last date for Service at least 7 days prior and cancel your payments to us (Termination Date); and (b) not use the Service on or after the Termination Date; and providing always that any Initial Term (if any) has been completed. It is your responsibility to ensure that you do not make payment to us for Service on or after the Termination Date (e.g. by cancelling your automatic payment with PayPal). If you use the Service after the Termination Date you must pay the most recent applicable Plan monthly Charge.
4.3 You must cease using all usernames, passwords, logins and other material/software provided by us on termination of this Agreement.
4.4 We reserve the right to terminate or suspend access to the Service at our sole discretion at any time without liability and without prior notice to you if in our opinion it is reasonable or necessary.
4.5 You remain liable for any charges you incur up to the Termination Date of this Agreement, and no refund of any Charges, rates or fees, including any monthly in advance payments, will be granted, and credits applied by us to your account are not redeemable or convertible to cash or any other form of credit, and any unused Service or credits are forfeited on termination.
4.6 If your Plan has an Initial Term then if for any reason you cease to use the Services prior to the expiry of that Initial Term, you must pay: (a) all applicable Charges incurred during and for the Initial Term (which you agree is a genuine pre-estimate of our loss and damage due to your cancellation); and (b) any other monies owing by you to us or our related bodies corporate (as defined in s 9 of the Corporations Act 2001 (Cth).
4.7 Without prejudice to any other right or remedy available to us we may terminate this Agreement immediately without notice, if you:
(a) commit a material breach of this Agreement,; or (b)are repeatedly in breach of this Agreement; or (c) are the subject of a bankruptcy order, or become insolvent; or make any arrangement or composition with or assignment for the benefit of your creditors or go into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over your assets.
4.8 You may terminate this Agreement by notice if we: (a) commit a material breach of this Agreement and we do not remedy same within 14 days of a written notice to do so; or (b) become insolvent; or make any arrangement or composition with or assignment for the benefit of our creditors or go into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over our assets.
5. Intellectual Property Obligations
5.1 Excluding open source code and subject to clause 5.2, intellectual property rights (including copyright, and trademarks) on and in all software/goods/services supplied to or used by you under this Agreement are owned by us or our licensors. During the Term of this Agreement and subject to you not being in breach of this Agreement we grant you a non-exclusive non-transferable license to use the software/goods/services for the purpose of using the Services and for no other purpose. You must not: modify, decompile, copy, disassemble, reverse engineer or reproduce the software/goods/services unless expressly permitted by us in writing.
5.2 Notwithstanding any other clause in this Agreement, the license to use any software/goods /services or documentation that belongs to third parties and supplied to or used by you under this Agreement are subject to the terms and conditions of the third parties’ licensing arrangements as notified to you.
6 Disclosure of credit information
6.1 You agree and authorise us and our related bodies corporate to use and exchange your credit information before, during and after the provision of credit to you with any of our agents and any credit reporting agency (for any or all of the following purposes:- assessing your order/application for credit worthiness, to notify of a default by you, allowing a credit reporting agency to create and maintain a credit information file about you), credit providers, carriers, carriage service providers, your business references or employees in accordance with the Privacy Act 1988 for the following purposes:
(a) considering or applying our credit policy to your application
(b) ongoing credit management of your account (s) with us or any of our related bodies corporate, including your overdue payments;
(c) ongoing maintenance of credit records about you;
(d) development, research and promotion of our products and services;
(e) to enable Service delivery to you; and
(f) any purpose permitted under the Telecommunications Act 1997.
6.2 You agree that credit information referred to in clause 6.1 includes:
(a) personal identifying details such as name, addresses, date of birth, employer, driver’s licence, passport and any other photo identification numbers;
(b) details and status of any of your accounts with us or our related bodies corporate;
(c) your credit history, including if you have made credit defaults, dishonoured cheques or credit infringements;
(d) information about your credit worthiness or capacity; and
(e) your personal details even if the application is for a business or a company.
6.3 Where you are in default of payment to us or any of our related bodies corporate you agree that we or our agent may utilise any information collected and recorded by us in relation to your account to assist us and our related bodies corporate in the process of debt recovery.
7.1 If we are unable to perform any of our obligations because of a matter beyond our reasonable control (including but not limited to lightning, flood, severe weather, fire, civil disorder, industrial disputes (whether or not involving our employees), acts of Government or other authorities, or events beyond the reasonable control of our suppliers), we will have no liability to you for failure to perform.
7.2 You warrant that you have not relied on any representation made by us which has not been stated in this Agreement nor upon any descriptions or illustrations of specifications contained in any document produced, displayed or provided by us.
7.3 You may not assign any of your Agreement rights or obligations without our consent.
7.4 If we delay in acting upon a breach of this Agreement that delay will not be regarded as a waiver of that breach, and any waiver given must be express, in writing, and is limited to that particular breach.
7.5 Terms expressed or which by their sense or context are intended to survive the expiration or termination of this Agreement do so, including but not limited to clauses 3, 4, 5, 6 and this clause 7.
7.6 These terms and all matters relating to this Agreement are governed by and construed in accordance with the laws of New South Wales. You irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales located exclusively in Sydney.
7.7 This Agreement (including any variation) constitutes the entire agreement between you and us in relation to Services. To the extent permitted by law, all other representations and warranties are excluded and any invalid, unenforceable, or illegal terms will not affect enforceability of any other of these terms. Inthis Agreement, the words “such as”, “including” and similar expressions are not used or intended to be interpreted as words of limitation.
7.8 You must in good faith co-operate and promptly provide us with information and assistance reasonably requested by us to allow us to provide you the Services or enforce this Agreement.