TERMS AND CONDITIONS EFFECIVE FROM 16 JULY 2007
Cars OnRequest, Property OnRequest, and Interact OnRequest are services from OnRequest Pty Ltd
1. DEFINITIONS
1.1 In this Agreement:
Commencement Date means the date set out in Item 1 of the Customer Agreement.
Confidential Information means any information of a private, confidential or secret nature concerning OnRequest or an End User, and which comes to the Customer's knowledge during the course of or in connection with subscribing to the Services.
Content means the content provided by the Customer to OnRequest to be used in providing the Services.
Customer includes the employees, principals and agents of the Customer and any other persons duly authorised to act on the Customer's behalf.
Customer Agreement means the document signed by Customer accepting the terms and conditions of this Agreement and setting the Commencement Date and Fees.
End User means an end user of the Services.
Fees means the fees set out in Item 2 of the Customer Agreement, or any other amounts agreed to in writing by the parties.
Force Majeuremeans where OnRequest is unable, wholly or in part, to carry out any obligation under this Agreement by reason of an act of God, strike, lockout or other interference with work, war declared or undeclared, blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental, or quasi-governmental restraint, expropriation, prohibition, intervention, direct or embargo, unavailability or delay in availability of equipment or transport, systems or technological failure, consents, permits, licences, authorities or allocations and any other cause whether of the kind specifically mentioned above or otherwise which is not reasonably within the control of OnRequest.
GST means GST within the meaning of the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (as amended).
Intellectual Property means any and all copyright (including future copyright and rights in the nature of copyright), moral rights, inventions (including patents), trade marks, service marks, business names, domain names, designs, know-how, ideas, systems, methods, processes, solutions, trade secrets, computer software (including source and object code) and circuit layouts, whether or not now existing, and whether or not registered or registrable.
Intellectual Property Rights means any and all intellectual and industrial property rights throughout the world and includes any right to apply for the registration of such rights and all renewals and extensions thereof.
Moral Rights means rights of integrity, rights of attribution and rights of an analogous nature that now exist or which may exist in the future.
MMS (Multimedia Messaging Service) allows for pictures, sound, videos and text. MMS messages allow for around 100KB of data - This equals about 30 seconds of video and around 6-10 pictures plus text and sound.
Services means the services provided by OnRequest for the provision of the mobile marketing services and any other services agreed to by the parties from time to time.
SMS (Short Messaging Service) is text only. Each message is limited to 160 characters, but multiple messages can be sent and linked to allow for longer text.
OnRequest includes the employees, principals and agents of OnRequest and any other persons duly authorised to act on OnRequest's behalf in connection with providing the Services.
Term means the period from the Commencement Date until such date that this Agreement is terminated in accordance with Clause 7 or expires by effluxion of time.
1.2 In this Agreement unless the context indicates a contrary intention:
the singular includes the plural and vice versa and words of one gender include any other gender;
words importing persons include corporations and all other entities recognised by law; reference to any party includes that party's legal personal representatives, successors, transferees and assigns;
references to clauses and schedules are references to clauses in and schedules to this Agreement;
reference to a right includes a benefit, remedy, discretion, authority or power, reference to an obligation includes a warranty or representation and a reference to a failure to perform an obligation includes a breach of warranty or representation; and clause headings in this Agreement are only for convenience and do not affect interpretation.
2. SERVICES
OnRequest agrees to provide the Services to the Customer on the terms and conditions of this Agreement.
3. ONREQUEST'S OBLIGATIONS
3.1 OnRequest will use its best endeavours to:
(a) provide the Services with due care and skill;
(b) provide general advice and information regarding the Services;
(c) report weekly by email (or as otherwise agreed) to the Customer on the mobile telephone numbers of End Users and the respective Content requested by those End Users using the Services, provided that:
(i) the End User has specifically requested the Customer's Content;
(ii) the Customer is in compliance with all of its obligations pursuant to this Agreement;
(d) where possible, maintain its servers and equipment at times which will affect the fewest customers;
(e) archive Content during the Term, however, OnRequest is not responsible for any corruption in its archives and the Customer is responsible for keeping an up-to-date copy of all Content during the Term;
3.2 OnRequest will not:
(a) monitor or censor Content, however, OnRequest may immediately remove or disable access to Content without notice to the Customer upon being made aware of any claim, allegation, court order, judgment, determination or other finding of a court or competent body that the Content is illegal or otherwise in breach of the rights of any person; and
(b) provide customer support to End Users using the Services;
4. CUSTOMER'S OBLIGATIONS
The Customer agrees and warrants that:
(a) it will provide Content to OnRequest in any form required to enable
OnRequest to provide the Services;
(b) it will comply with all applicable laws, regulations and codes of practice relating to the Content and the Services;
(c) the Content is not illegal, offensive, defamatory, misleading or deceptive, or breaches the Intellectual Property Rights of any person;
(d) it is the owner or authorised licensee of the Content and will continue to own or be authorised to use the Content for the Term;
(e) use of the Content by OnRequest in connection with the Services will not infringe the Intellectual Property Rights or other rights of any person;
(f) it will comply with any and all terms and conditions specified in the Customer
Agreement that apply to particular Services;
(g) it will strictly follow any operational procedures relating to the Services as notified by OnRequest from time to time;
(h) it has read, understood and will comply with OnRequest's Website Terms and OnRequest's Privacy Policy;
(i) it will execute all documents and do all things necessary to enable OnRequest to provide the Services;
(j) it will not re-supply the Services or any part thereof to any person;
(k) it will keep secure all passwords and access codes used in connection with the Services;
(l) it will provide OnRequest with access to it systems, personnel, premises and any other access reasonably required by OnRequest for the purpose of providing the Services;
(m) it will only use an End User's mobile telephone number and any other
Confidential Information collected by the Customer about an End User strictly in accordance with the following terms:
(i) the Customer may contact an End User by SMS/MMS or by telephone during ordinary business hours regarding the particular Content the End User requested using the Services;
(ii) the Customer must not contact an End User about any other matter whatsoever aside from the particular Content that the End User requested using the Services;
(iii) the Customer must allow the End User to interact with the Customer anonymously if requested by the End User;
(iv) in the event that an End User communicates to the Customer or
OnRequest that it does not wish to be contacted by the Customer, the Customer must immediately cease all contact with the End User;
(v) in the event that an End User communicates a complaint about the
Customer to OnRequest, the Customer agrees that OnRequest may disclose the Customer's contact details to the End User;
(vi) the Customer must not harass End Users or make contact with End
Users that is unreasonable in frequency or extent;
(vii) subject to Clause 6.2, the Customer must not disclose the End
User's mobile telephone number or other Confidential Information to any person outside the Customer's organisation;
(viii) the Customer must not use the End User's mobile telephone number or other Confidential Information for any purpose other than the purpose specified in Clause 4(m)(i) above; and
(ix) the obligations in this Clause 4(m) are continuing obligations that survive the termination of this Agreement.
5. FEES AND EXPENSES
5.1 The Customer must pay the subscription Fees to OnRequest monthly in advance on the first day of each month, except that the first of such payments is due within seven (7) days of the date of this Agreement and will be calculated on a pro-rata basis. A surcharge may apply where payment is made by credit card.
5.2 Online Purchase:
a) All prices are quoted in Australian dollars.
b) All goods purchased online must be paid for in advance before online credit is recharged or physicals items disptached for delivery.
c) A payment processing fee applies to customers who chose to pay using Visa and Mastercard. The fee is charged on the total amount of the purchase amount. The fee is 2% (GST inclusive).
d) After your transaction is processed you will be given a transaction ID. You should record this in case you need to make any query about your payment in the future. We will inform you by e-mail if your credit card payment is not successful.
e) You may not cancel an order once it has been submitted, even if our confirmation e-mail is still pending.
f) No refunds, credit or replacements are offered if you have changed your mind, make an incorrect choice, or failed to verify and accurately provide information when placing your order.
g) We use eWAY to guarantee the best possible security for our online transactions. eWAY has multiple firewalls to protect important data and features 1024 bit data encryption. No credit card information is stored on either eWAYs clustered web servers or OnRequest web site.
h) OnRequest will not be responsible for any damages, consequential losses (whether direct or indirect) suffered by a customer whose credit card is fraudulently used or is used in an unauthorised manner
5.3 All prices displayed and products and services offered to be supplied by OR are subject to change without notice.
5.4 OnRequest will provide the Customer with a valid tax invoice.
5.5 The Customer must pay any fees, taxes, duties or expenses of whatever nature associated with the Services (including but not limited to Goods and Services Tax) that is not specifically included in the Fees.
5.6 If payment of any Fees by the Customer is overdue by seven (7) days or more,
OnRequest may, at its option and without prejudice to any of its other rights or remedies, do one or more of the following:
(a) immediately suspend the Services without notice to the Customer;
(b) terminate this Agreement in accordance with Clause 8;
(c) charge interest on any overdue amount at the rate fixed for the time being under the Penalty Interest Rates Act 1983 (Vic); and
(d) demand payment of any collection fees, including but not limited to legal costs on a solicitor and own client basis.
5.5 Prices quoted, whether in a price list, by written quotation or verbally, for the supply of goods and services, exclude GST and any other taxes or duties imposed on or in relation to the goods and services. The Customer must pay any GST and any other taxes or duties imposed on the goods and services.
5.6 Where there is any change in the costs incurred by Us in relation to the goods or services, We may vary our price for the goods or services in order to take account of any such change, by notifying You.
5.7 Pricing includes the cost of delivery of the goods to You, however OR reserves the right to charge for the cost of delivery if the delivery location is outside a metropolitan area.
5.8 We charge for each SMS pushed, for every 160 characters and for each MMS pushed. Please refer to individual contract for pricing details with regards to messages requested.
6. DELIVERY OF GOODS AND SERVICES
6.1 We will take all reasonable steps to deliver Content to your mobile phone upon request. However, in some circumstances, Content may be undeliverable due to technological difficulties or because receiving mobile phone is not working properly, is switched off, is out of range, is not a compatible handset or if the message storage space on the mobile phone is full. In such case we will be unable to deliver the message. However, you must still pay OR for each time you use OR to push Content, even if that Content is not delivered or received. Our liability is limited to the fullest extent permitted by law.
6.2 Any period or date for delivery of goods or provision of services is intended as an estimate only and is not a contractual commitment. We will use our reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services but will not be liable for any loss or damage suffered by You or any third party for failure to meet any estimated date.
7. RETURNS AND EXCHANGES
7.1 We will not be liable for any defects, shortages, damage or non-compliance with the specifications in the Agreement unless You notify Us in writing with full details within 7 business days of delivery of the goods or provision of the services.
7.2 If You do not give the notice as required in clause 6.1, You are deemed to have accepted the goods or services.
7.3 When any defects, shortages, claim for damage or non-compliance with the Agreement specifications is accepted We may, at our option, replace the defective or missing goods or re-provide services.
7.4 We will not accept goods for return that:
(a) have been altered in any way; or
(b) have been used.
7.5 You must obtain our prior written approval for the return of goods and pay all freight charges associated with the return of goods unless We accepts the reasons stated for the return is due to its fault.
8 CANCELLATION
8.1 If, through circumstances beyond our control We are unable to effect delivery or provision of goods or services, then We may cancel your order (even if it has already been accepted) by notice in writing to You.
8.2 No purported cancellation or suspension of an order or any part thereof by You is binding on Us after that order has been accepted.
9 CONFIDENTIAL INFORMATION
9.1 The Customer must keep confidential any and all Confidential Information, and such obligations are continuing obligations throughout the Term and at all times following the termination of this Agreement.
9.2 The Customer must not, without the prior written consent of OnRequest, disclose any Confidential Information to any person, except as required by law or if the information enters the public domain (other than by a breach of confidence).
9.3 The Customer must comply with all the laws and regulations (including privacy laws) which relate to any obligations of OnRequest to keep the personal information and affairs of End Users confidential.
9.4 The Customer agrees and expressly permits OnRequest to use the Customer's name and Content for promotional purposes.
10. INTELLECTUAL PROPERTY
10.1 The Customer agrees that all Intellectual Property owned by or licensed to
OnRequest remains the sole property of OnRequest (or its licensor) and must not be used by the Customer without OnRequest's prior written consent.
10.2 The Customer grants a non-exclusive and continuing licence to OnRequest for the Term to use, reproduce and disseminate Content in any form in connection with providing the Services.
10.3 The Customer agrees that all Intellectual Property Rights in any improvements made by OnRequest to Content remains the sole property of OnRequest, unless otherwise agreed in writing.
10.4 The Customer consents and will obtain all other necessary written consents at its expense, to any act or omission that would otherwise infringe any Moral Rights or other analogous legal rights in any Content in favour of OnRequest, including but not limited to:
(a) OnRequest's right to adapt, edit, alter or modify any Content and to incorporate or merge Content or any part thereof with other material; and
(b) OnRequest's right not to provide attribution of the authorship of any Content.
11. TERMINATION
11.1 Either party may terminate this Agreement by giving the other party thirty (30) days prior written notice.
11.2 OnRequest may immediately terminate this Agreement by written notice to the Customer if the Customer:
(a) is in breach of any of its obligations under this Agreement and fails to rectify same within seven (7) days after OnRequest gives the Customer written notice requiring the Customer to remedy the breach;
(b) is guilty of serious misconduct or any other conduct which affects or is likely to adversely affect the interests of OnRequest;
(c) dies, becomes bankrupt, appoints an administrator or receiver, is wound up or makes any arrangement or composition with its creditors;
(d) is disqualified from being a director of any company; or
(e) commits a breach of Clause 4(b), 4(c), 4(d), 4(e) or 4(m) of this Agreement.
11.3 Upon termination of this Agreement for any reason, the Customer must:
(a) immediately pay any outstanding Fees due and payable to OnRequest (including any interest and collection fees);
(b) immediately surrender to OnRequest and cease using any and all Intellectual
Property belonging to OnRequest of whatever nature; and
(c) not represent that it is affiliated, associated or otherwise connected in any way with OnRequest.
11.4 Termination by OnRequest pursuant to this Clause 8 is without prejudice to any other rights OnRequest may have at law or in equity.
12. RELATIONSHIP BETWEEN THE PARTIES
12.1 Nothing contained in this Agreement will be construed or have effect as constituting any relationship of employer and employee, agency, partnership or joint venture between OnRequest and the Customer.
12.2 The Customer agrees that its subscription to the Services is non-exclusive and that OnRequest may provide services that are identical with or similar to the Services to third parties during the Term.
13. LIMITATION OF LIABILITY
13.1 The Customer acknowledges and agrees that OnRequest has made no representations or warranties, express or implied, with respect to the Services other than those expressly set out in this Agreement.
13.2 The Customer acknowledges and agrees that OnRequest does not warrant that:
(a) the Services will be uninterrupted or free from error;
(b) the Services will meet the Customer's requirements or expectations other than as expressly set out in this Agreement; and
(c) the Services will be free from viruses or unauthorised access.
13.3 To the extent permitted by law:
(a) the Customer releases OnRequest from all liability for any loss or damage (whether foreseeable or not) suffered by any person in connection with the
Services, whether the loss or damage arises from negligence, default, lack of care, misrepresentation or any other cause;
(b) OnRequest excludes all conditions and warranties implied by law;
(c) the liability of OnRequest in respect of a breach of this Agreement to, at the sole discretion of OnRequest, the re-supply of the Services or payment of the cost of re-supplying the Services; and
(d) the liability of OnRequest in respect of any other claim made in connection with this Agreement is limited to the Fees paid by the Customer pursuant to this Agreement.
13.4 OnRequest will not be in breach of this Agreement as a result of:
(a) a Force Majeure event;
(b) any delay in or inability to provide the Services or perform any other obligation under this Agreement caused directly or indirectly by the Customer or any third party; and
(c) any delay in or inability to provide the Services or perform any other obligation under this Agreement caused by technical difficulties or equipment failure beyond OnRequest's reasonable control.
14. INDEMNITY
14.1 The Customer hereby indemnifies OnRequest on a continuing basis from and against all actions, claims, demands, liabilities, losses, damages, costs and expenses of any kind which OnRequest suffers or incurs in connection with or arising in any way out of this Agreement, the relationship between the Customer and OnRequest or the performance, and non-performance or breach by the Customer of any of its duties or obligations under this Agreement. This indemnity includes, without limitation, legal costs calculated on a solicitor and own client basis in defending any action or seeking advice concerning any breach or suspected breach of this Agreement or the enforcement or attempted enforcement of any provision of this Agreement.
14.2 Without limiting the generality of Clause 11.1, the Customer hereby indemnifies
OnRequest on a continuing basis from and against all actions, claims, demands, liabilities, losses, damages, costs and expenses of any kind which OnRequest suffers or incurs in connection with or arising in any way out of any claim or proceeding brought by a third party in connection with:
(a) any Content;
(b) any End Users' Confidential Information; and
(c) any misuse of the Services.
14.3 The indemnities in this Clause 11 survive termination of this Agreement by either party for any reason.
15. ASSIGNMENT
15.1 The Customer must not assign, sub-license or sub-contract this Agreement or any right or obligation under this Agreement without OnRequest's prior written consent.
15.2 OnRequest may assign any and all of its rights under this Agreement at any time without giving any prior notice to the Customer.
16. GOODS AND SERVICES TAX
16.1 Except where express provision is made to the contrary and subject to this Clause, the consideration payable by any party under this Agreement represents the value of any taxable supply for which payment is to be made.
16.2 Subject to Clause 16.4, if either party makes a taxable supply in connection with this Agreement for a consideration which, under Clauses 16.1 or 16.3 represents its value, then the other party must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
16.3 If this Agreement requires either party to pay or reimburse or contribute to an amount paid or payable by the other party in respect of an acquisition from a third party for which the other party is entitled to claim an input tax credit, the amount required to be paid, reimbursed or contributed by the first party will be the value of the acquisition by the other party plus, if the other party's recovery from the first party is a taxable supply, any GST payable under any provision of this Agreement.
16.4 A party's right to payment under this clause is subject to a valid tax invoice being delivered by that party to the other party.
17. NOTICES
17.1 A notice, demand or other communication given or made under this Agreement must be in writing signed by or on behalf of the party giving it and may be served on the other party by being delivered or sent by prepaid post to the party's address specified in this Agreement or sent by facsimile transmission to the party's facsimile number or sent by electronic mail ("email") to the party's email address.
17.2 A communication if:
(a) delivered, will be taken as served upon delivery;
(b) posted, will be taken as served two business days after posting;
(c) sent by facsimile transmission, will be taken as served upon receipt of a transmission report generated from the facsimile machine which sent the transmission indicating that the facsimile was successfully sent in its entirety to the facsimile number of the recipient; or
(d) sent by email, will be taken as served upon receipt of a delivery status notification generated by the computer which sent the transmission, indicating that the email was successfully sent in its entirety to the email address of the recipient.
17.3 Any of these methods of service is valid even if the intended recipient does not receive the communication or, where it is posted, it is returned to the sender unclaimed.
18. WHOLE AGREEMENT
This Agreement and the signed Customer Agreement constitutes the whole of the agreement between the parties. It supersedes and extinguishes any previous agreement or understanding between the parties about the subject matter of this Agreement and any representation or warranty previously given.
19. SEVERANCE
If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, the provision must be read down so as to give it as much effect as possible. If it is not possible to give the provision any effect at all, it is severed from this Agreement. Any reading down or severance does not affect the validity and enforceability of the remaining provisions in that jurisdiction or the validity and enforceability of the offending provision in any other jurisdiction.
20. WAIVER
No failure by either party to exercise and no delay in exercising any right under this
Agreement will be taken as a waiver of the right. No waiver of any right is effective unless made in writing. Waiver of any particular right does not in any way release the other party from strict compliance in the future with the same or any other obligation.
The rights and remedies provided in this Agreement are cumulative and do not exclude any other rights provided by law.
21. TIME OF THE ESSENCE
Time is of the essence of this Agreement.
22. VARIATION OF AGREEMENT
This Agreement can be amended or varied only by a written document executed by the parties or by persons duly authorised to sign on behalf of the parties.
23. FURTHER ASSURANCES
Each party will execute any further document and do any thing necessary or desirable to give full effect to the provisions of this Agreement.
24. DURATION OF PROVISIONS
The provisions of this Agreement do not merge in or end on completion of the transaction contemplated by this Agreement but remain in full force and effect to the extent that they have not been fulfilled or satisfied or are capable of having effect.
25. COUNTERPARTS
This Agreement may be executed in a number of counterparts, all of which taken together constitute one and the same document.
26. GOVERNING LAW
This Agreement is governed by and shall be construed in accordance with the laws of Victoria.