1 DEFINITIONS AND INTERPRETATION
Meanings shall apply to capitalised terms used in this Agreement as specified in this provision, unless the context otherwise requires:
“Authority” means any governmental or semi-governmental, statutory or judicial body, instrumentality, department, commission, authority, tribunal, agency or other similar entity; “Authorities” has a corresponding meaning.
“Agreement” means this agreement and the schedule.
“Charges” means all charges payable by the Customer in accordance with this Agreement.
“Claim” means any claim or cause of action in contract, tort or under statute or otherwise.
“Confidential Information” means all information, whether or not in material form, all oral communications, documents and other information disclosed by a Party to the other Party which: (i) is by its nature confidential; (ii) is marked confidential or proprietary; or (iii) a Party informs the other Party at the time of disclosure is confidential or proprietary; and includes but is not limited to:
(a) Personal Information;
(b) information contained in this Agreement;
(c) trade secrets, know-how, techniques, business and marketing plans, projections, surveys, financial records, arrangements and agreements with third parties;
(d) customer information, information proprietary to customers, formulae, customer lists;
(e) designs, plans, models, and concepts not reduced to material form;
(f) all notes and other records (whether or not in material form) relating to the Confidential Information; and
(g) the fact that the parties have entered and/or will enter into any contemplated business transactions between them.
“Customer” means the customer detailed in first page of this Agreement.
“Default Event” means any of the following events:
(a) a failure by the Customer to pay or perform an obligation or covenant under this Agreement;
(b) non-compliance by the Customer with, or the fact of inaccuracy of, any representation made or deemed to be made or repeated by the Customer in this Agreement, or in any document delivered to Message Stick under, or in connection with, this Agreement;
(c) an Insolvency Event occurs in relation to the Customer;
“DNCR Laws” means the Do Not Call Register Act 2006 (Cth) and the Telecommunications Act 1997 (Cth) and the Telecommunications (Do Not Call Register) (Telemarketing and Research Calls) Industry Standard 2007.
“End Date” means the date on which this Agreement ends.
“Force Majeure Event” means an event which is beyond the control, and without the fault or negligence, of the Party affected, and which could not have been prevented by the Party affected exercising reasonable diligence and includes: an act of God, earthquake, cyclone, fire, explosion, flood, landslide, lightning, storm, tempest, drought, war (declared or undeclared), invasion, act of a foreign enemy, hostilities between nations, civil insurrection, explosion, government intervention, act of public enemy, sabotage, malicious damage, terrorism, civil unrest; contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel, confiscation, requisition, expropriation, prohibition, embargo, damage to property by or under the order of any Authority, strikes at a national level or industrial disputes at a national level, or any failure of the internet or telecommunications services.
“GST” includes any value added tax, consumption tax, gross receipts tax or any other tax or charge or impost of a similar nature payable in respect of goods and/or services supplied, consumed or otherwise in connection with this Agreement including any such tax levied charged or assessed under GST Law.
“GST Law” means the A New Tax System (Goods and Services) Tax Act 1999 (Cth).
“Insolvency Event” means with respect to a Party, the occurrence of any of the following events:
(a) an application is made to a court for an order, or an order is made, that the Party be wound up;
(b) an application is made to a court for an order appointing a liquidator or provisional liquidator in respect of the Party, or one of them is appointed, whether or not under an order;
(c) except to reconstruct or amalgamate while solvent, with the prior written consent of the other Party, the Party enters into, or resolves to enter into a scheme of arrangement or composition with, or assignment for the benefit of, all or any class of its creditors, or it proposes a reorganisation, moratorium or other administration involving any of them;
(d) an order is made, or the Party passes a resolution, for the winding up of the Party, or the Party otherwise dissolves itself, or gives a notice of intention to do so, except to reconstruct or amalgamate while solvent, and with the prior written consent of the other Party or is otherwise wound up or dissolved;
(e) the Party is or states that it is unable to pay its debts as and when they fall due or suspends or threatens to suspend making payments with respect to all or any class of its debts;
(f) a receiver or receiver and manager, or administrator or controller is appointed to the Party or any part of the property of the Party or steps are taken with respect to the making of such appointment;
(g) the Party takes steps or threatens to cease to carry on its business as a going concern; or
(h) any occurrence, similar to any of the above occurrences, happening to or in respect of the Party under the law of the relevant jurisdiction.
“Intellectual Property Rights” means any intellectual, industrial or commercial property, or right of a proprietary nature, including:
(a) any patent, trade mark, service mark or design;
(b) any copyright or work of authorship;
(c) any business, trade or commercial name or designation, brand name, internet website or domain name;
(c) any other industrial or commercial right derived from intellectual knowledge or activity of any industrial, scientific, literary or artistic nature or description, whether relating to any manufactured or natural service or otherwise;
(d) any licence or other right to use or grant the user, or to become the registered proprietor or user of, any previous item, whether registered or unregistered or recorded or unrecorded, stored or incorporated in any medium of any nature or description.
“Interest Rate” means the interest rate of 4% above the Bank’s Bill Swap Reference Rate (“BBSY”) being the Average Bid for 30 days (rounded to the nearest two decimal places) as quoted on the BBSY screen of Reuters on the day the quote is given and as advertised in the Australian Financial Review the following day.
“Law” means the common law and requirements of all statutes, rules, ordinances, codes, industry and professional standards, regulations, proclamations and by-laws or consents issued by an Authority, present and future in Australia.
“Liability” means charges, claims, payments, actions, judgments, damages, losses (including any special, indirect or consequential loss or damage), costs, fees, expenses, liabilities and obligations.
“Minimum Charge” means the minimum monthly amount payable by the Customer.
“Minimum Charge Period” means the period specified in this Agreement.
“Monthly Subscription Charges” means the minimum monthly amount payable by the Customer.
“Parties” means Customer and Message Stick, and “Party” means one of them.
“Personal Information” has the same meaning given to it by the Privacy Act.
“Privacy Act” means the Privacy Act 1988 (Cth).
“Services” means those services to be provided by Message Stick as specified in this Agreement.
“Spam Act” means Spam Act 2003 (Cth).
“Start Date” means the later of the date specified and the date upon which Message Stick commences the provision of the Services to the Customer in accordance with this Agreement.
“Subscription Plan” means a fixed term plan which relates to the Services as specified in this Agreement.
“Subscription Period” means period during which the Subscription Plan shall be applicable as specified in this Agreement.
“Usage Charge” means those charges payable by the Customer on account of use / consumption of the Services determined on a usage basis in accordance with this Agreement.
In this Agreement, headings and terms appearing in bold typeface are for convenience only and do not affect the interpretation of this Agreement and, unless the context otherwise requires
(a) words importing the singular include the plural and vice versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning;
(d) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any Authority;
(e) a reference to “dollars” or “$” is to an amount in Australian currency.
(f) a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, whether passed by the same or another Authority with legal power to do so, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
(g) a reference to a party to a document includes that party’s successors and permitted assigns;
(h) the terms “including”, “for example”, “such as” and similar terms do not imply any limitations;
(i) no provision of this Agreement shall be construed adversely to a Party solely on the ground that the Party was responsible for the preparation of that provision;
(j) where the day on or by which any thing is to be done is not a business day, that thing must be done on or by the next business day.
Where this Agreement specifies:
(a) that the term of this Agreement is fixed, this Agreement shall commence on the Start Date and shall run for the term. Thereafter, this Agreement shall automatically continue for a further 12 months’ period on the same terms and conditions unless a Party notifies the other Party in writing at least 30 days prior to the expiry of this Agreement that it does not wish to renew it.
(b) no fixed term then this Agreement shall commence on the Start Date and shall continue until terminated in accordance with clause 20.
(c) that it is a Subscription Plan, this Agreement shall commence on the Start Date and shall continue for 12 or 24 months, as specified in this Agreement plus any bonus months as specified in clause 8.6.
- PROVISION OF SERVICES
In consideration for entry into this Agreement and payment of the Charges, Message Stick shall:
(a) provide the Services to the Customer; and
(b) grant the Customer a non-exclusive non-transferable right to use the Services on the Terms and Conditions of this Agreement.
- USE OF SERVICES
4.1 Responsibility for Use
The Customer shall be solely responsible for the use, supervision, management and control of the Services. The Customer shall:
(a) ensure that the Services are at all times:
(i) protected from misuse, interference, damage, destruction or any form of unauthorised use; and
(ii) used in compliance with this Agreement; and
(b) immediately notify Message Stick in the event of unauthorised use, or suspected unauthorised use.
4.2 Restrictions on Use
Without limitation to any other provision, the Customer must not (nor cause or permit a third party to):
(a) use the Services or related documentation in combination by any means and in any form with other goods and services not contemplated by this Agreement or approved by Message Stick;
(b) use the Services related documentation in a manner or for a purpose which is:
(i) not reasonably contemplated or not authorised by Message Stick; or
(ii) improper, immoral or fraudulent;
(iii) infringes any person’s Intellectual Property Rights; or
(iv) restricts or interferes with the provision of the Services by Message Stick to any other customers or users.
(c) modify or alter the Services or related documentation without the prior written consent of Message Stick;
(d) reverse assemble or reverse compile the whole or any part of the Services; or
(e) enter into any transaction, including but not limited to resale, relating to the Services or related documentation with a party other than Message Stick, without Message Stick’s prior written consent.
4.3 Obligations as to Content
(a) The Customer must use reasonable efforts to ensure that its employees, contractors and agents do not, use the Services to send or make available information or data which is Illegal, defamatory, misleading or deceptive, indecent, obscene, pornographic, offensive, racist or menacing.
(b) The Customer will use reasonable efforts to ensure that any information and data provided, including but not limited to Personal Information, owned or used by the Customer in association with the Services is:
(i) accurate and has been collected and used in compliance with all relevant Laws including without limitation the Privacy Act; and
(ii) used with the consent, and in compliance with, the directions of any third party that holds copyright or any other Intellectual Property Rights in any of that information and data, as may be applicable.
(c) Message Stick may at any time refuse to forward any information or data that it reasonably believes does not comply with this clause, and shall not be liable for so doing.
Message Stick shall provide the Customer with an electronic invoice each month on account of the Charges payable by the Customer.
(a) The Customer shall pay the Charges to Message Stick within fourteen (14) days of the date of the invoice.
(b) Where a Customer pays their account by credit card a 1.5% credit card processing fee will be levied on the total invoice.
5.3 Late Payment
(a) Without prejudice to any other remedies Message Stick may have under this Agreement or otherwise, if the Customer fails to pay any Charges by the due date Message Stick may, with 5 business days notice to the Customer charge interest at the Interest Rate on the outstanding Charges or any other monies due and unpaid by the Customer, until such time as the Customer has paid, in full, the outstanding amount and any interest accrued on the outstanding amount, and the Customer shall pay to Message Stick on demand any reasonable costs incurred by Message Stick in relation to collection of any amounts owing, including any legal costs incurred by Message Stick, on a full indemnity basis.
(b) Where a Customer exceeds the contractual payment terms, a late payment fee may apply.
(c) Where a Customer unduly exceeds the contractual payment terms, the Services may be suspended. Should this occur, and the Customer wishes to continue to use the Service, then a reconnection fee will be charged to the next monthly invoice.
(a) The Customer must make full payment of all Charges in accordance with clause 5.2 notwithstanding any dispute as to the amount stated on any invoice.
(b) The Customer shall notify Message Stick in writing of any dispute with respect to the whole or any portion of the amount claimed in an invoice submitted by Message Stick. Such notice must be given within 7 days of receipt of the relevant invoice.
(c) If it is determined by Message Stick, acting reasonably, that some or all of the amount in dispute ought not to have been paid by the Customer, Message Stick shall credit that amount towards the payment of the next invoice issued by Message Stick in accordance with clause 5.1 or where there is to be no further invoice issued by Message Stick, Message Stick shall reimburse to the Customer the relevant amount.
(d) Customer must notify Message Stick of any charge disputed in good faith, with supporting documentation, in accordance with clause 5.2, or Customer shall be deemed to agree to such charges and no adjustments to charges or invoices will be made.
5.5 Rate Changes
(a) Rates which are specified in this Agreement are subject to change at any time upon Message Stick giving no less than thirty (30) days’ prior written notice to Customer. Customer agrees that such notice may be included in a Message Stick invoice.
(b) Notwithstanding the preceding clause, Customer acknowledges and agrees that each year Message Stick may increase the rates by the greater of the CPI rate, or 5.9% without prior notice to Customer.
- STANDARD BASIS
Where it is specified in this Agreement that the Usage Charges payable by the Customer are to be determined on a usage basis, then the Customer must pay all costs incurred in relation to the Services as set out in this Agreement.
- MINIMUM CHARGE BASIS
7.1 This clause 7 applies where it is specified in this Agreement that the Usage Charges payable by the Customer are based on a Minimum Charge.
7.2 The Customer must pay to Message Stick the Usage Charges. During the term of this Agreement, where the Usage Charges are less than the Minimum Charge, Message Stick shall invoice the Customer the Minimum Charge amount and Customer agrees that it is liable to pay that amount.
7.3 If this Agreement is terminated prior to the expiry of the Minimum Charge Period the Customer must pay to Message Stick the Minimum Charge that would be payable by the Customer to Message Stick for the remainder of the Minimum Charge Period or for the period from the date upon which this Agreement is terminated up to and including the End Date (whichever is the later).
- SUBSCRIPTION PLAN
8.1 This clause 8 applies where it is specified in this Agreement that the Usage Charges payable by the Customer based on a Subscription Plan.
8.2 The Customer must pay to Message Stick the Monthly Subscription Charge in accordance with clause 5.
8.3 If at the end of each month it is determined by Message Stick that the Customer has utilised the Services in excess of or in addition to the Services included in the Subscription Plan, then the Customer shall pay to Message Stick all Usage Charges incurred.
8.4 If at the end of the month it is determined by Message Stick that the Customer has not used the Services in an amount less than or equal to the Services included in the Subscription Plan, the balance of the Services shall not be carried forward to the next month and the Customer shall forfeit those Services and shall not be entitled to any refund of any part of the Monthly Subscription Charge.
8.5 If this Agreement is terminated prior to the expiry of the Subscription Period the Customer must pay to Message Stick the Monthly Subscription Charges that would otherwise have been payable by the Customer to Message Stick for the remainder of the Subscription Period.
9.1 If the Customer is on a Subscription Plan and in the opinion of Message Stick is of good standing, the Customer may request to upgrade its plan, at no additional fee, by sending a written notice to Message Stick no less than ninety (90) days prior to the expiry date.
9.2 The Customer cannot downgrade its plan during the term of the Subscription Plan.
- COMPLIANCE WITH LAW
The Customer shall only use the Services in compliance with all relevant Laws.
10.2 Spam Act
(a) Without limitation to clause 10.1, the Customer shall ensure that any messages or communications sent using the Services shall be in compliance with the Spam Act.
(b) Message Stick may at its discretion refuse to send any broadcast communications that meet the commonly accepted definition of Spam as contemplated by the Spam Act.
10.3 DNCR Laws
Without limitation to clause 10.1, where applicable the Customer must comply with all requirements of the DNCR Laws when using the Services and must take all reasonable steps to ensure that its employees and agents comply with the DNCR Laws.
10.4 Failure to Comply
Without limitation to any other rights and remedies available to Message Stick, Message Stick reserves the right to suspend the provision of Services, terminate this Agreement or take any such other appropriate action against the Customer in the event that Message Stick becomes aware that the Customer has used or permitted the use of the Services in contravention of any Law including but not limited to the Spam Act, the DNCR Laws, and the Privacy Act.
- SUSPENSION OF SERVICES
11.1 Without Notice
Message Stick may, at any time without notice to the Customer suspend all or any part of the Services to:
(a) rectify unforeseen defects or failures with the Services which, in Message Stick opinion, require urgent or immediate attention;
(b) comply with any Law or direction of any Authority;
11.2 With Notice
Message Stick may at any time upon providing the Customer with reasonable notice suspend all or any part of the Services to carry out upgrades or maintenance, or to repair the Services.
- INTELLECTUAL PROPERTY
The parties acknowledge that Message Stick owns all Intellectual Property Rights subsisting in the Services and any documentation supplied by Message Stick in connection with the Services. Nothing in this Agreement transfers ownership of any of the Intellectual Property Rights subsisting in the Services or related documentation.
(a) Message Stick represents and warrants that it has ownership of all Intellectual Property Rights subsisting in the Services
12.2 Exercise of Rights
The Customer must not exercise any of the rights of Message Stick as owner of the Intellectual Property Rights subsisting in the Services and related documentation except as expressly permitted by the terms of this Agreement.
12.3 Modifications and Developments
Unless otherwise agreed by the parties in writing, Message Stick shall own all Intellectual Property Rights in any modification, adaptation or development of the Services carried out by the Customer notwithstanding that any such modification, adaptation or development by the Customer may be in contravention of this Agreement, and the Customer shall do all such things that are necessary to confer those Intellectual Property Rights to Message Stick.
12.4 Message Stick indemnifies and holds harmless the Customer in respect of any liability, loss or expense incurred by the Customer, its officers, employees or affiliates arising from of or in connection with any infringement of any third party Intellectual Property rights resulting from:
(i) the use by the Customer of the Services or related documentation;
(ii) the use by the Customer of any Intellectual Property created or provided by Message Stick under or in connection with this Agreement.
- CONFIDENTIAL INFORMATION
Where a Party (“Recipient”) receives Confidential Information from the other Party (“Discloser”) during the term, and after termination or expiration of this Agreement, the Recipient shall keep that information confidential and shall:
(a) not publish or disclose the Confidential Information to any person except as permitted under this Agreement or with the prior written consent of the other Party;
(b) not use the Confidential Information for any purpose, except where strictly necessary for the performance of its liability under this Agreement.
13.2 Permitted Disclosure
(a) The Recipient may disclose Confidential Information on a confidential basis to any officer or employee of that Party to the extent it is reasonably necessary for the performance of its obligations under this Agreement.
(b) The Recipient shall ensure that each officer or employee that receives Confidential Information pursuant to clause 13.2(a) is informed of, and shall comply with, the confidentiality obligations of the Recipient under this Agreement.
13.3 Permitted Exemptions
This provision shall not apply to any Confidential Information which:
(a) is in or comes into the public domain, other than through a breach by the Recipient of an obligation of confidentiality under this Agreement;
(b) can be shown by the Recipient to have been known to the Recipient before being disclosed to it by the Discloser;
(c) subsequently comes lawfully into the possession of the Recipient from a third party;
(d) is required by compulsion of Law to be disclosed to a third party; or
(e) is disclosed to a Party’s legal advisers in the course of obtaining legal advice.
14.1 Message Stick may sub-contract the provision of all or any part of the Services without the prior approval of the Customer.
14.2 Message Stick will ensure subcontractors comply with clause 13 in respect of any Confidential Information from the Customer that it may receive
(a) All amounts payable under this Agreement or any other agreement or document entered into between the parties are GST exclusive amounts. The Customer must in addition to the stated amounts pay GST on such amounts.
(b) Message Stick must give to the Customer a tax invoice in accordance with any applicable GST Law.
Each party represents and warrants that:
(a) it has the power to enter into and perform its obligations under this Agreement and to carry out the transactions contemplated by it and to carry on its business as contemplated in this Agreement;
(b) it has taken all necessary steps, including any corporate action necessary in the event that it is a corporation, to authorise its entry into and performance of all of its obligations under this Agreement and to carry out the transactions contemplated by this Agreement;
(c) the execution and performance by it of this Agreement and each transaction contemplated by this Agreement does not and shall not in any respect violate the provisions of:
(i) any statute, decree, rule or regulation or any determination, order or award of any court Authority binding on it;
(ii) its constitution or other constituent documents;
(iii) any other document or agreement which is binding on it or its assets;
(d) it is not knowingly in default or difficulty under any deed, agreement, financial commitment or other document or obligation which is reasonably likely to adversely affect the ability of the Party to comply with its obligations under this Agreement;
(e) so far as it is aware, it is in full and ongoing compliance with all companies and securities legislation and regulations and all other legislation and regulations to which the Party may at any time and from time to time be subject;
(f) no Insolvency Event has occurred and is continuing in relation to it; and
(g) no litigation or administrative or other proceedings before or of any Authority have, to its knowledge, been initiated or threatened against it or any of its assets which would or might have a materially adverse effect upon its business, assets or financial condition.
16.2 Reliance on Warranties
Each party acknowledges that the other party has entered into this Agreement in reliance upon the warranties in this clause. For the avoidance of doubt, a breach of any of the warranties set out in this clause shall be a material breach of this Agreement.
- INDEMNITIES AND RELEASES
The Customer agrees to use the Services at its own risk. To the extent permitted by law, the Customer releases Message Stick and its employees, from Claims and demands to the extent relating to:
(a) any statement, representative, warranty, promise, undertaking or agreement in connection with the provision of the Services unless the same is specified in this Agreement (including the preamble);
(b) any loss of or interruption to data or computer time, loss due to any inaccuracy, alteration or erroneous transmission of data outside Message Stick’s reasonable control, or
(c) suspension or termination of the Services in accordance with the terms of this Agreement or as otherwise directed by any Authority;
except as expressly provided in this Agreement.
18. LIMITATION OF LIABILITY
(a) The Customer acknowledges that it has made its own assessment as to the condition, quality, value, suitability and fitness for the purpose of the Services and has placed no reliance in that assessment on any statement, conduct or representation by Message Stick in relation to those matters except as provided in this Agreement (including the preamble). Any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.
(b) Where legislation implies in this Agreement a condition or warranty, and that legislation voids or prohibits provisions in a contract from excluding or modifying the application or exercise of, or liability under, such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement and the liability of Message Stick for a breach of such condition or warranty shall be limited, at its option, to one or more of the following:
(i) in the case of supply of a product:
(A) the replacement of the product or the supply of equivalent product;
(B) the cost of replacing the product or acquiring equivalent product; or
(C) the repair of the product or the payment of the cost of having the product repaired; and
(ii) in the case of services:
(A) the supply of the services again; or
(B) payment of the cost of having the services supplied again.
- FORCE MAJEURE
Each of Message Stick and the Customer shall not be liable to the other Party for any Liability incurred by that Party as a direct result of a Party failing or being prevented, hindered or delayed in the performance of its liability under this Agreement by reason of a Force Majeure Event.
19.2 Notice of Delay
The Party affected by a Force Majeure Event shall as soon as practicable notify the other Party in writing of any anticipated delay due to that Force Majeure Event and use reasonable efforts to perform its obligations under this Agreement.
Either Party may terminate this Agreement immediately on providing written notice to the other Party, if delay due to a Force Majeure Event continues for a period in excess of 30 days from the date of notification.
- DEFAULT AND TERMINATION
20.1 Consequences of Default
If a Default Event occurs, Message Stick may, in its absolute discretion and without prejudice to any other rights that it may have, at any time prior to rectification of the Default Event, either:
(a) require the Customer to immediately pay all amounts in relation to any Services which have been invoiced but remain unpaid; and/or
(b) temporarily and indefinitely suspend the provision of Services; and/or
(c) require the Customer to pay in advance before supplying any further Services to the Customer; and/or
(d) confirm this Agreement as a binding Agreement and seek damages and/or any other remedies legally available to Message Stick; and/or
(e) treat such Default Event as a repudiation of this Agreement by the Customer and accept the Customer’s repudiation, terminate this Agreement and recover from the Customer any amount payable under clause 20.3.
20.2 Termination by Notice
Subject to clause 20.3, this Agreement may be terminated by either Party upon giving the other Party not less than 30 days’ notice in writing.
20.3 Obligations on Termination
(a) Upon expiration or termination of this Agreement, the Customer must pay to Message Stick any and all amounts due and payable to Message Stick under this Agreement, including but not limited to any amount due and payable under clauses 7.3 and 8.5;
(b) Within 30 days following termination of this Agreement Message Stick shall reconcile all accounts and return to the Customer any Confidential Information of the Customer which is in the possession of Message Stick.
- PERSONAL INFORMATION
Each Party agrees to comply with its obligations under the Privacy Act regarding the collection, storage, use and disclosure of Personal Information.
(a) Message Stick may transfer any right or liability under this Agreement without the prior written consent of the other party
(b) the Customer must cannot transfer any right or liability under this Agreement without the prior written consent of the other party.
(a) Any notice to or by a Party under this Agreement shall be in writing and signed by the sender or any lawyer acting for that Party or, if a corporate Party, an authorised officer of the sender, including any director, secretary or person notified in that capacity by that corporate Party, or under the seal of or any power of attorney conferred by the sender.
(b) Any notice may be served by delivery in person or by post or transmission by facsimile to the address or number of the recipient and shall be effective for the purposes of this Agreement upon delivery to the recipient or production to the sender of a facsimile transmittal confirmation report.
- GOVERNING LAW
The Agreement shall be governed by and construed under the law of the State of New South Wales, Australia.
- GENERAL PROVISION
25.1 Entire Agreement
(a) This Agreement, including all Schedules attached hereto, constitutes the final, complete and entire agreement between the parties with respect to the subject matter hereof, and supersedes any previous proposals, negotiations, agreements or arrangements, whether verbal or written made between the parties with respect to such subject matter. There are no other verbal agreements, representations, warranties, undertakings or other agreements between the parties. If Customer requires use of a Customer-form purchase order in connection with any of the Services to be performed hereunder, Customer hereby acknowledges and agrees that to the extent such purchase order contains any pre-printed or other terms and conditions, such terms and conditions, whether in addition to or in conflict with this Agreement, shall have no effect whatsoever and this Agreement shall govern the relationship between Message Stick and Customer.
(b) Except where specifically provided, this Agreement shall not be altered in any way until such time as the Parties agree in writing.
25.2 Further Assurance
Each Party shall execute any document and perform any action necessary to give full effect to this Agreement, whether prior or subsequent to performance of this Agreement.
Any failure or delay by any Party to exercise any right under this Agreement shall not operate as a waiver and the single or partial exercise of any right by that Party shall not preclude any other or further exercise of that or any other right by that Party.
The rights of a Party under this Agreement are cumulative and not exclusive of any rights provided by Law.
Any provision of this Agreement which is invalid in any jurisdiction shall be invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this Agreement or the validity of that provision in any other jurisdiction.
25.6 Survival of Terms
Clauses 12, 13, 16, 17, 18, 20.3, 21, 24 and 25 shall survive cancellation, termination, expiration or suspension of this Agreement.
- USER ACCOUNT AND USER ACCESS SECURITY POLICY
26.1 Inactive accounts
Message Stick reserves the right to cancel or suspend user accounts or passcodes access where there has been no activity on the account for a period of 12 consecutive months. The user account shall remain open, and the client can contact the Message Stick to re-issue new accounts passcodes and passwords.
26.2 Strong Password / Passcode Policy
Message Stick requires customers to use ‘strong’ passcodes and passwords. A strong passcode / password is one that is:
(a) Numeric: six-ten numeric digit passcode, consisting of non consecutive or the same numbers (i.e.: 123456; 888888; 654321)
(b) Alpha / Numeric: six-ten alpha/numeric characters; consisting of non consecutive characters or familiar name (i.e.: Sydney office; ABC123)
26.3 Periodic sweeps
Message Stick shall periodically sweep its database to identify and change ‘soft’ passcodes to ‘strong’ passcodes/passwords. Message Stick may communicate to account owners advising them of this action undertaken to mitigate risk of unlawful usage of user accounts.
- ADDITIONAL TERMS AND CONDITIONS
If it is specified that the Services or part of the Services are Cisco WebEx Services, the Customer agrees to be bound by the Cisco WebEx Terms of Service to the extent that the Services are Cisco WebEx Services. The Terms of Service can be found at http://www.webex.com.au/companyinfo/terms-of-service-webex.html. By using the product Customer agrees that it has read, understood and shall comply with the Cisco WebEx Terms of Service.
27.2 Microsoft Services
If it is specified that the Services or part of the Services are Microsoft Services, in addition to the terms and conditions contained here, the Customer must comply with the Microsoft Terms of Service located at http://office.microsoft.com/en-us/help/HA101063371033.aspx. By using the Microsoft Services, Customer agrees that it has read, understood and will comply with the Microsoft Terms of Service.
27.3 Webcasting Services
- FOOTNOTES, CHARGES AND FEES
(a) Where the Customer schedules a Message Stick Meeting Centre call with the assistance of customer service instead of utilising the online portal or using the on-demand service, a booking fee will apply.
(b) A connection fee shall apply to all active lines in a conference call. An active line includes both participants and moderators.
(c) Except where Customer is on a Subscription Plan, all new moderators shall incur a setup charge.
(d) Fees and charges are subject to change, and information is available from the tariff sheets upon request.
(e) All other services including, but not limited to, enhanced services, moderator dial out, international will be charged at default rates unless specifically outlined in this agreement.
(f) Setup fees may be applied on selected services.
END OF TERMS and CONDITIONS