The Web
Messaging website is operated by Lattice Systems (ACN 113 423 359) (“Lattice”). Your access to and use of
the Web Messaging website is governed by these terms and conditions.
1. Service
1.1 These
terms and conditions together with your application comprises your Agreement
with Lattice Systems for the Web Messaging services (“Service”).
1.2 Lattice Systems will provide the Service
subject to the following:
(a) The Service is conveyed on the networks of third party
telecommunication carriers (“Network”). As a consequence the Service is
provided only within those areas where Network coverage is available. Network
coverage is available in those areas publicised by the carriers.
(b) Depending on the nature of your Service the Service may be
dependent on your equipment to send timely and accurate transmissions to Lattice Systems.
To the extent that the Service involves third party equipment, the internet and
computer networks and systems which are not under the sole control of Lattice Systems, Lattice Systems
accepts no responsibility for any failure or malfunction by them which may
impact the Service;
(c) The Service is not warranted to be continuous and may fail
due to a variety of technical factors to the Network such as interference from
other sources or degraded or non-existent radio reception in or near particular
places or technical failure of the internet or our website. Some of these
factors are the responsibility of the carriers, interface providers or internet
service providers and as such are not within Lattice Systems' control;
(d) It is technically impractical to provide the Service free
of fault or error. You acknowledge that the Network and the Service have
network coverage limitations, including reception and interference problems,
possible faults in transmission equipment, human errors including errors of any
carrier and third parties, and the physical location of equipment in relation
to transmitters. Additionally, you
acknowledge that Lattice Systems is not in control of all factors and that carriers and internet
service providers do not always alert Lattice Systems to technical problems with their
network or the internet and that we are not able to take action in these
instances, and that carrier’s networks may suffer lengthy delays from time to
time or lose messages, both factors being out of Lattice Systems' control and you
indemnify Lattice Systems from any consequences or actions in relation to these types of
occurrences;
(e) Lattice Systems may, without liability to you, suspend the Service
immediately for repairs, for repairs to your equipment, maintenance of any part
of the Network, computer network and systems, or where Lattice Systems is obliged to
comply with the requirements of any relevant authority; and
(f) As the Service is dependent on the Network, the internet
and computer networks and systems, some provided by third parties, Lattice Systems makes
no representations or warranties about the ability of messages to be delivered,
quality of the messages or about the time taken for the dispatch or delivery of
messages using the Service.
2. Fees
2.1 You are liable for all messages from the
commencement of the Service. You must pay the fees payable to Lattice Systems for all
messages in accordance with Lattice Systems' payment terms. Lattice Systems' records will be
conclusive evidence of messages sent. You agree to pay to Lattice Systems such charges for
the Service as are invoiced by Lattice Systems in accordance with the terms set out in Lattice Systems
invoice. The amount payable to Lattice Systems is the amount shown in your Application,
subject to change after the expiry of any fixed period as notified by Lattice Systems from
time to time.
2.2 As the Service is dependent on the provision of
services from third party carriers, Lattice Systems reserves the right issue accounts for
messages not previously billed and which occurred earlier than the previous
billing period (but not greater than 6 months prior).
2.3 Except to the extent that your Service is cancelled
or suspended by Lattice Systems, you are liable to pay all Service fees to Lattice Systems in respect
of the Service even if the identity of the person who used the Service changed,
or that any messages sent were not authorised by you.
2.4
All
fees payable to Lattice Systems by you in respect of the Service are exclusive of all
taxes, duties or levies payable in respect of the Service or this
Agreement. You must pay all taxes,
including goods and services taxes, relating to the Service and you indemnify Lattice Systems
and hold Lattice Systems harmless against all such taxes, duties and levies
2.5
All
prices displayed and products and services offered to be supplied on the Web
Messaging website are subject to change without notice.
2.6 Lattice Systems may charge a late payment fee on
any overdue amounts due under an invoice at the rate of 2% above the prime
lending rate of Lattice Systems principal banker calculated daily. Lattice Systems may also impose
a charge to cover its reasonable expenses and costs incurred in enforcing any
failure or delay in your payment (including the cost of engaging a mercantile
agent).
3. Your use of the Service
3.1 You acknowledge that Lattice Systems supplies the Service to you
on the condition you only use them for your own messages or business messaging
requirements and that you will not resupply the Service to any person or
otherwise sell the Service to any other person on a wholesale basis without
first obtaining the written approval of Lattice Systems.
3.2
Messages can contain up to 160 characters.
3.3
Lattice Systems
recommends the use of Internet Explorer © Version 5.5 or above.
3.4 You must not use, or allow any other person to use,
the Service in a manner which in Lattice Systems opinion:
(a) infringes the provisions of the Telecommunications
Act 1997 (Cth), the Radio Communications Act 1992 (Cth), or the Privacy Act
1998 (Cth) as amended from time to time or any other applicable statutes, laws,
rules or regulations of the Commonwealth or of the States or Territories;
(b) intentionally causes damage or injury to any person
or property or incites hatred against any person;
(c) includes the transmission or publication of any
obscene, defamatory, offensive, abusive, indecent, menacing or harassing,
mischievous or blasphemous material;
(d) includes the conduct of a business or other
operation that is illegal or perceived by Lattice Systems as unethical or would bring a
party into disrepute including without limitation, any conduct which
contravenes any industry code relating to the use of SMS;
(e)
impairs
the normal operation of the Network or telecommunications network or equipment
of any third party;
(f)
includes
the sending of unsolicited electronic mail messages to anyone, and/ or infringes
the Spam Act 2003 (Cth); or
(g)
knowingly
transmits any virus or other disabling feature to the Web Messaging website.
3.5 You must comply with any written notice which Lattice Systems
may give you in relation to any action necessary to be taken, to eliminate any
interference or threat to the operation, stability, viability or integrity of
the Web Messaging website, the Service or any related Network.
4. Term and Termination
4.1 This Agreement will automatically terminate if Lattice Systems'
right to provide the Service ceases for any reason.
4.2 You may terminate this Agreement by giving Lattice Systems one
month notice in writing at the end of which time this Agreement and your
obligations to Lattice Systems will be at an end. Until the expiry of the period you must
continue to pay Lattice Systems all message charges and all fees.
4.3 Lattice Systems may immediately suspend or discontinue the
provision of the Service to you and any person using your Service or terminate
this Agreement with immediate effect by giving notice to you at any time if, in
Lattice Systems opinion:
(a)
You
or any person using your Service breach any terms of this Agreement (including
any terms relating to payment or use of the Service);
(b)
Your
use of the Web Messaging website or the Service threatens the operation or
stability of the Web Messaging website, the Service or any related Network.
(c)
You
enter, or threaten to enter into, or are in jeopardy of becoming subject to any
form of insolvency administration, whether formal or informal;
(d)
You
cease, or threaten to cease, or are in jeopardy of ceasing to conduct any
business carried on by you in the normal manner;
(e)
You
fail to make any payment or breach any other term of this Agreement;
(f)
You
or any person using the your Service breaches any licence, permit,
authorisation or law relating to the use of the equipment or the Service;
(g)
Lattice Systems'
right to provide the Service or any carrier’s right to provide access to the
Network ceases or is suspended or interrupted for any reason;
(h)
Your
use of the Service is unlawful, improper or otherwise objectionable;
(i)
You
fail to pass our credit checks or you become an unacceptable credit risk;
(j)
Your
conduct or the conduct of any person using your Service is likely to adversely
affect any communications network; or
(k)
Any
carrier or related supplier is required to undertake repairs or maintenance to
any part of the Network or to comply with a request from any regulatory or
government authority.
5. General Provisions
5.1
Lattice Systems
is not liable to you or any other person using your Service in any
circumstances.
You indemnify and hold Lattice Systems
harmless for:
(a)
any
economic loss or damage including, any loss of revenue, profits, actual or potential
business opportunities, contracts or anticipated savings or profits;
(b)
any
indirect or consequential loss or damage; or
(c)
any
loss or damage relating to the acts or omissions of any carrier or other third
party, and all other matters beyond our control; or
(d)
any failure to provide part or all of the Service or to
deliver any messages or any delay in the delivery of messages; suffered or
incurred by you or any other person using your Service.
5.2 To the extent permitted by law, Lattice Systems excludes all
liability for breach of any express or implied term or warranty and also
excludes all liability for Lattice Systems' negligence in connection with the performance
of its obligations under this Agreement.
5.3 Where liability for any term implied by law cannot
be excluded, and to the extent permitted by law, Lattice Systems liability for any
breach of such an implied term is limited to (at our election):
(a)
in
the case of services, the cost of having the Service supplied again; and
(b)
in
the case of goods, the lower of the cost of replacing the goods, acquiring
equivalent goods or having the goods repaired.
5.4 Lattice Systems will not be liable for any loss, damage,
expense or claim suffered or incurred by you or any person using your Service
because of a failure or delay in Lattice Systems complying with the terms of this
Agreement if that failure or delay has arisen as a result of causes beyond the
reasonable control of Lattice Systems.
5.5 You indemnify Lattice Systems, its employees and agents against
loss, damage, expense or claim arising from a breach of this Agreement by you
and any breach of these terms by any person using your Service.
5.6 Where you comprise more than one person, this
Agreement binds each of you jointly and severally.
5.7 This Agreement and your Application constitute the
entire agreement between you and Lattice Systems in relation to its subject matter. All previous negotiations and
representations are excluded. Lattice Systems however reserves the right to alter these
terms, including pricing, and to pass on terms required by any carrier or
telecommunications supplier, at any time on notice to you. For the purposes of
this clause, adequate notice will be provided.
5.8 Lattice Systems may at any time assign or deal with the whole
or any part of this Agreement. You may
not assign or deal with your rights or obligations under this Agreement without
Lattice Systems prior written consent.
5.9 Lattice Systems reserves the right to vary and update these
Terms and Conditions, including pricing, at any time upon notice to you. You
will be deemed to have accepted any such variation if you continue to use the
Service after such notice is provided.
5.10 Terms
used in this document have a corresponding meaning to those in your
Application.
5.11 If any term of this Agreement is held invalid, unenforceable
or illegal for any reason, this Agreement will otherwise remain in full force,
apart from that term, which will be deemed to be deleted.
5.12 This Agreement is governed by the law in force in the
State of Victoria. The parties agree to submit to the non-exclusive
jurisdiction of the Victorian courts and tribunals for determining any dispute
concerning this Agreement.
ACN 113 423 359