The
Video Ezy SMS Link website is operated by Oxygen Interactive marketing Pty Ltd
(ABN 12103003809)
(“Oxygen Interactive marketing ”). Your access to and use of the Video Ezy SMS
Link website is governed by these terms and conditions.
1. Service
1.1 The
Video Ezy SMS Link website is operated by Oxygen Interactive marketing Pty Ltd
(ABN 12103003809)
(“Oxygen Interactive marketing ”).Your access to and use of the Video Ezy SMS
Link website is governed by these terms and conditions.
These terms and conditions
together with your application comprises your Agreement with Oxygen Interactive
marketing for the Oxygen SMS Link
(“Service”).
1.2 Oxygen Interactive marketing
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 Oxygen Interactive
marketing . 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 Oxygen Interactive marketing , Oxygen Interactive marketing 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 Oxygen Interactive marketing ’s
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 Oxygen Interactive marketing is not in control of all factors and that
carriers and internet service providers do not always alert Oxygen Interactive
marketing 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 Oxygen Interactive marketing
’s control and you indemnify Oxygen Interactive marketing from any consequences or actions in
relation to these types of occurrences;
(e)
Oxygen Interactive marketing 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 Oxygen
Interactive marketing 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, Oxygen Interactive
marketing 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 Oxygen Interactive marketing for all messages in accordance with
Oxygen Interactive marketing ’s payment terms. Oxygen Interactive marketing ’s
records will be conclusive evidence of messages sent. You agree to pay to Oxygen
Interactive marketing such charges
for the Service as are invoiced by Oxygen Interactive marketing in accordance with the terms set out in
Oxygen Interactive marketing ’s invoice. The amount payable to Oxygen
Interactive marketing is the amount
shown in your Application, subject to change after the expiry of any fixed
period as notified by Oxygen Interactive marketing from time to time.
2.2
As the
Service is dependent on the provision of services from third party carriers,
Oxygen Interactive marketing 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 Oxygen Interactive
marketing , you are liable to pay all Service fees to Oxygen Interactive
marketing 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
2.4
All fees payable
to Oxygen Interactive marketing 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 Oxygen Interactive
marketing and hold Oxygen
Interactive marketing harmless
against all such taxes, duties and levies
2.5
2.5
All prices
displayed and products and services offered to be supplied on the Video Ezy SMS
Link website are subject to change without notice.
2.6
Oxygen Interactive marketing 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 Oxygen Interactive marketing 's principal banker calculated daily. Oxygen Interactive marketing 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 Oxygen
Interactive marketing 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 Oxygen Interactive
marketing .
3.2
3.2
Messages
can contain up to 160 characters.
3.3
3.3
Oxygen
Interactive marketing 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
Oxygen Interactive marketing ’s 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 Oxygen Interactive
marketing 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)
(e)
impairs the
normal operation of the Network or telecommunications network or equipment of
any third party;
(f)
(f)
includes the
sending of unsolicited electronic mail messages to anyone, and/ or infringes the
Spam Act 2003 (Cth); or
(g)
(g)
knowingly
transmits any virus or other disabling feature to the Video Ezy SMS Link
website.
3.5 You must comply with any
written notice which Oxygen Interactive marketing 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 Video Ezy SMS Link website, the Service
or any related Network.
4. Term and Termination
4.1
This
Agreement will automatically terminate if Oxygen Interactive marketing ’s right
to provide the Service ceases for any reason.
4.2
You may
terminate this Agreement by giving Oxygen Interactive marketing 3 months notice in writing at the end of
which time this Agreement and your obligations to Oxygen Interactive marketing
will be at an end. Until the expiry
of the period you must continue to pay Oxygen Interactive marketing all message charges and all
fees.
4.3 Oxygen Interactive marketing
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 Oxygen Interactive marketing 's
opinion:
(a)
(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)
(b)
Your use of the
Video Ezy SMS Link website or the Service threatens the operation or stability
of the Video Ezy SMS Link website, the Service or any related
Network.
(c)
(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)
(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)
(e)
You fail to make
any payment or breach any other term of this Agreement;
(f)
(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)
(g)
Oxygen
Interactive marketing ’s 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)
(h)
Your use of the
Service is unlawful, improper or otherwise objectionable;
(i)
(i)
You fail to pass
our credit checks or you become an unacceptable credit risk;
(j)
(j)
Your conduct or
the conduct of any person using your Service is likely to adversely affect any
communications network; or
(k)
(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
5.1
Oxygen
Interactive marketing is not liable
to you or any other person using your Service in any
circumstances.
You indemnify and hold Oxygen Interactive marketing harmless for:
(a) (a)
any economic
loss or damage including, any loss of revenue, profits, actual or potential
business opportunities, contracts or anticipated savings or
profits;
(b) (b)
any indirect or
consequential loss or damage; or
(c) (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) (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, Oxygen Interactive marketing excludes all liability for breach of any
express or implied term or warranty and also excludes all liability for Oxygen
Interactive marketing 's 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, Oxygen Interactive marketing 's liability for any breach of
such an implied term is limited to (at our election):
(a)
(a)
in the case of
services, the cost of having the Service supplied again;
and
(b)
(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
Oxygen
Interactive marketing 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 Oxygen Interactive
marketing complying with the terms
of this Agreement if that failure or delay has arisen as a result of causes
beyond the reasonable control of Oxygen Interactive marketing
.
5.5
You
indemnify Oxygen Interactive marketing , 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
Oxygen Interactive marketing in
relation to its subject matter. All
previous negotiations and representations are excluded. Oxygen Interactive
marketing 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 include posting of a notice on
the Video Ezy SMS Link website.
5.8
Oxygen
Interactive marketing 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 Oxygen Interactive marketing
's prior written consent.
5.9
Oxygen
Interactive marketing 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.