TERMS AND CONDITIONS
1.1 TMA COMMS PTY LTD (ACN 167 961 659) (TMA) operate a number of Sites for the provision of Services.
1.2. By accessing or using these Sites and/or using the Services supplied by TMA, you agree to be bound by the following terms and conditions (Terms).
1.3 TMA provides the Services and the information on the Sites in accordance with these Terms together with any additional terms, conditions, notices or disclaimers placed on the Sites from time to time. Your use of the Services and access to the information and materials provided on the Sites is conditional upon your acceptance and compliance with these Terms.
- MODIFICATION OF TERMS, FEES
2.1 TMA reserves the right to amend, modify, add to or delete any of these Terms from time to time, including but not limited to the Fees associated with any of the Services provided by TMA, and such modifications shall be effective immediately upon posting of the modified terms or Fees on the Sites.
2.2 By continuing to use the Services, you accept any variations to these Terms or Fees unless you cease using the Services and notify TMA in accordance with these Terms.
- ADDITIONAL TERMS
3.1 In addition to these Terms important notices have been posted on the Sites. Your use of the Services and access to the Sites means that you also accept the terms, conditions, notices, disclaimers and policies posted on the Sites. TMA reserves the right to modify these notices at any time.
- WARRANTIES & ACKNOWLEDGEMENTS
By using the Sites or any of the Services, you warrant and acknowledge to TMA that:
4.1 your registration details are correct and you will maintain their currency by updating them through the online registration facility as necessary;
4.2 you will not use nor allow others to use the Services or any Recording or Personal Information for any purpose other than for which it was recorded or collected, or as permitted by Law;
4.2 you will at all times comply with the Law and only use the Services for your personal use or internal business requirements and not on behalf of any other person;
4.3 you will comply with all reasonable instructions issued by TMA with respect to the use of the Services;
4.4 you are solely responsible for giving any party to a telephone conversation that is subject of a Recording any and all necessary warning(s) or notice(s) of the Recording and the use that will or may be made of the Recording and the Personal Information and other information contained therein, and obtaining the express or implied consent of all parties to the call as required by Law;
4.5 you will secure Recordings and Personal Information against misuse, loss, unauthorised use, modification or disclosure and destroy or permanently de-identify Personal Information if no longer needed for any purpose for which the information may be used or disclosed, as authorised or as required by Law;
4.6 you will notify TMA immediately once you become aware of any unauthorised use of the Services;
4.7 you have made your own enquiries regarding your obligations under the Law (including, but not limited to, whether the Privacy Act is applicable to you) and that TMA has no obligation to advise you of such obligations;
4.8 TMA recommends you adopt and take all reasonable steps to comply with the Australian Privacy Principles (APPs) set out in the Privacy Act, irrespective of whether the APPs are applicable to you; and
4.9 where the APPs apply to you, you will:
(a) comply with the APPs;
(b) have in place appropriate written policies and procedures to ensure compliance with the APPs;
(c) take all reasonable steps to protect Personal Information you hold from misuse, loss and unauthorised access;
(d) ensure your employees, officers, servants and agents receive training and instruction in regards to compliance with the APPs and have signed acknowledgements that they have been trained and are aware of the APPs and will comply with them;
(e) only give access to Recordings and information contained in Recordings to employees that are authorised to access such information; and
(f) delete Recordings that are no longer required by you.
- AUTHORISATION CODE
5.1 You will be provided with an Authorisation Code being a logon name, password and, where applicable, an API key which will enable you to access and use the Services once your registration has been accepted by TMA.
5.2 Whilst using the Record Retrieve Service you have the discretion to block the CLI function for outgoing calls to recipients from the telephone handset or system you utilise to acquire the Services, regardless of the CLI being blocked or not:
(a) the CLI is permanently visible to TMA for all of your outbound calls; and
(b) TMA only uses its visibility of your CLI to identify the Account holder and verify this with your Authorisation Code and for no other purpose.
5.3 You undertake not to disclose the Authorisation Code to any third party and to take all reasonable measures to prevent disclosure of the Authorisation Code to any third parties. In the event that disclosure is made then TMA is entitled to exercise its rights under clause 8.
5.4 You must notify TMA immediately once you become aware of any unauthorised disclosure or use of the Authorisation Code.
6.1. Subscription Fees, Charges and Payment
- PROVISION OF SERVICES
(a) In consideration for TMA providing the Services, you shall pay and TMA shall receive the applicable Fees.
(b) The applicable Fees shall be the amounts stipulated in the Fees and Charges Table, as amended from time to time.
(c) You will only be able to access such Services to the extent that you have prepaid any applicable Subscription Fee on your Account.
(d) Unless otherwise provided, the Subscription Fee shall be paid monthly in advance, the first payment to be made on or before your registration and activation of your prepaid Account.
(e) You will only be able to use the Services provided your Account balance for invoiced Fees on Services have been paid in full by the due date on the invoice.
(f) In addition to your Subscription Fee, any Usage Charges as set out in the Fees and Charges Table that are payable shall be billed on the following months’ invoice and shall be payable by the due date on that invoice.
(g) If you do not pay the invoiced Fees when due, TMA shall, without prejudice to all or any of its other rights and remedies, have the right to:
(i) charge you an administrative fee (such fee will be notified to you on the invoice or otherwise) to cover TMA’s reasonable expenses and costs incurred in enforcing any failure or delay in your payment;
(ii) charge interest on any overdue amount at the penalty interest rate fixed by the Attorney-General under Section 2 of the Penalty Interest Rates Act 1983 (Vic), calculated from the time such amount falls due until it is received in full; and/or
(iii) suspend or Deactivate the Services if your Account is outstanding for at least 14 days from the due date on the invoice. If TMA suspends or Deactivates the Services, it may charge you a suspension fee, cancellation fee and/or reconnection or reactivation fee (such fee will be notified to you on the final invoice or otherwise). Reconnection or reactivation of the Services is subject to payment of the reconnection or reactivation fee.
(h) If you default in payment of any invoice when due, you shall indemnify TMA from and against all loss and damage in respect of any recovery action including without limitation all solicitors’ fees (on an indemnity basis), commercial agents’ commission, out of pocket expenses, bank fees, insurance and interest.
Any prices or charges referred to in these Terms and/or in any quotation are exclusive of any applicable goods, services, sales, value added and any other similar taxes unless stated otherwise. The total price payable by you for the Services is subject to any applicable goods, services, sales, value added and any other similar taxes.
6.3 Consequences of Deactivation
If your Account is Deactivated then you will forfeit and lose your Allocated Geographical Number and Authorisation Code associated with your Account and they can not be retrieved, reactivated or reinstated thereafter. In the event you are Deactivated then TMA will not be liable for any resulting loss or damage to you or third parties whatsoever.
6.4 Force Majeure
If any circumstance, matter or thing beyond TMA’s control (including, but not limited to, strikes, lock outs, acts of terrorism, fire, flood or drought) TMA is unable to supply the Services in whole or in part then it will be relieved of that obligation to the extent and for the period that it is so unable to perform and will not be liable to you in respect of such inability.
6.5 User Responsibilities:
(a) In using any of our Services you are responsible for your actions and the actions of any person you have authorised to use our Services through your Account.
(b) You are responsible for all charges incurred from the use of your Account.
(c) If you act recklessly or irresponsibly in your use of our Services or your actions endanger any person or the integrity or security of our network, systems or equipment, your access may be restricted, suspended or terminated without prior notice.
(d) You agree that you will not use, attempt to use or allow your Services to be used to:
(i) store, send or distribute any content or material which is restricted, prohibited or otherwise unlawful under any applicable Law, or which is likely to be offensive or obscene to a reasonable person;
(ii) store, send or distribute Confidential Information, copyright material or other content which is subject to third party Intellectual Property rights, unless you have a lawful right to do so;
(iii) do anything, including store, send or distribute material which defames, harasses, threatens, abuses, menaces, offends violates the privacy of or incites violence or hatred against, any person or class of persons, or which could give rise to civil or criminal proceedings;
(iv) do any other act or thing which is illegal, fraudulent or otherwise prohibited under any Law or which is in breach of any code, standard or content requirement of any other competent authority;
(v) do anything, including store, send or distribute material, which interferes with other users or restricts or hinders any person from accessing or using any of the Services;
(vi) store, send or distribute any viruses or other harmful programs or material;
(vii) send or distribute unsolicited advertising, bulk electronic messages or otherwise breach your spam obligations set out in these Terms, or overload any network or system including our network and systems;
(viii) use another person’s name, username or password or otherwise attempt to gain access to the Account of any other customer;
(ix) authorise, aid, abet, encourage or incite any other person to do or attempt to do any of the above acts; and
(x) in the case of unlimited plans, excessively use the service in a manner which may hinder or prevent us from providing services to other customers or which may pose a threat to the integrity of our network or systems.
(a) The Record Retrieve Service will keep your recordings for one year, after which they may be deleted, unless previously deleted by you.
(b) The WordBench Service will keep your calls for six months, after which they may be deleted, unless previously deleted by you.
- HELP DESK SUPPORT SERVICES
7.1 Provided that you comply with your payment and other obligations under these Terms, Help Desk Support Services will be provided as part of your registration whereby you will be provided with advice and assistance in connection with the use of the Services through email or online methods.
7.2 Where you require assistance, TMA will use reasonable efforts to provide an initial response as soon as practicable after a request from you.
7.3 You shall co-operate fully with TMA’s personnel in the diagnosis of any alleged non-conformity of the Services.
- SUSPENSION, CANCELLATION AND TERM/TERMINATION
TMA may, without liability and with immediate effect, suspend the Services:
(a) if TMA has given you notification that a Service is being used for a purpose which does not comply with these Terms;
(b) to comply with any lawful order, direction or determination of any regulatory body with jurisdiction over TMA or the Services and that in the event this occurs, you will not be entitled to any refund for any prepaid Subscription Fees nor will TMA be liable for any loss or damage to you or any third party clients or end users of your business;
(c) to perform necessary maintenance or other service work in connection with the Services;
(d) if you excessively use the capacity or resources of our network in a manner which may hinder or prevent us from providing Services to other customers or which may pose a threat to the integrity of our network or systems; or
(e) if your Account with TMA is not in credit or in sufficient credit to meet liability for payment of applicable Fees.
8.2 Cancellation by You
(a) If you have a Subscription Service, you must give TMA written notice that you wish to cancel your Subscription Service or, where available, you may cancel your Subscription Service by logging into your Account and selecting the cancellation button.
(b) If you have a Minimum Contract Term Subscription Service and you wish to cancel during the minimum contract term then the remainder of the term on your Minimum Contract Term Subscription Service will be invoiced to you and must be paid out in full for your Deactivation to be effective.
Without prejudice to its other rights, TMA may terminate its provision of the Services to you immediately on written notice to you and/or your access to the Sites if:
(a) you commit a breach of these Terms that is capable of being remedied and you do not rectify the breach within 5 days of being notified in writing of the breach;
(b) you commit a breach of these Terms and Conditions that is not capable of being remedied;
(c) an event occurs which results in TMA being unable, in its reasonable opinion, to continue to provide the Services to you (such as a change in any Law);
(d) you become insolvent; or
(e) you fail to comply with the Law at anytime.
8.4 Consequences of Cancellation and Termination
(a) If the Services are cancelled or terminated for any reason before the end of the period for which you have prepaid Fees, your Account will be Deactivated and you will not be entitled to any refund for those prepaid Fees
(b) All clauses of these Terms that are capable shall survive termination or expiration of the provision of the Services.
8.5 Expiration of Account Balance
Unless otherwise provided, the Fees for the Services must be paid in advance. Any unused credit or balance will expire if your Account is not used for 12 months.
- LIMITATION OF LIABILITY
9.1. TMA acknowledges that provisions in the Competition and Consumer Act 2010 (Cth) (as amended) and other statutes from time to time in force imply or impose statutory guarantees, conditions or warranties into contracts for the supply of Services which cannot be excluded, restricted or modified or can only be restricted or modified to a limited extent (Non Excludable Terms). Nothing in these Terms is intended to exclude or restrict the application of the Non Excludable Terms. Other than the Non Excludable Terms, TMA hereby excludes all conditions, warranties, guarantees, terms and obligations expressed or implied by law in connection with these Terms, or any Services provided under them.
9.2. TMA is not liable to you or any other person for any loss or claim of any kind in connection with these Terms, or any Services provided under them, except to the extent caused directly by the negligence or wilful misconduct of TMA.
9.3. If any Non Excludable Terms apply, then to the extent to which TMA is entitled to do so, its liability under those Non Excludable Terms will be limited at its option to:
(a) the supplying of the Services again; or
(b) the payment of the cost (if any) of having the Services supplied again.
9.4. To the extent permitted by law, TMA will be under no liability to you or any third party in any circumstances for any indirect, special or consequential loss or damage, including but not limited to loss of revenue or loss of profit howsoever arising and whether in an action in contract, tort, in equity, under statute, or on any other basis.
9.5. Notwithstanding anything to the contrary contained in these Terms, TMA’s liability to you for any cause whatsoever and regardless of the form of the action, will at all times be limited to the amount paid, if any, by you to TMA for the Services.
10.1 To the extent permitted by law, you agree to indemnify TMA and its employees, officers, servants or agents against any claim, loss, liability or damage, costs, charges and expenses (including TMA’s legal costs on a solicitor/ own client basis) suffered or incurred by TMA which arise directly or indirectly in relation to:
(a) any breach by you or your employees, officers, servants or agents of any provision of these Terms or of any Law;
(b) any act or failure to act, negligent or otherwise, by you or any of your employees, officers, servants or agents;
(c) your or your employees, servants or agent’s unlawful use, misuse, unauthorised access, modification or disclosure of a Recording or Personal Information, except to the extent that any such Loss is caused by the negligence or other wrongful act of TMA or its employees, officers, servants or agents; and
(d) any other use of the Sites or the Services in violation of these Terms.
10.2 The indemnities contained in these Terms and Conditions:
(a) are continuing obligations, independent from your other obligations under these Terms and any Law; and
(b) continue after the provision of the Services has ceased.
- NOTICE OF BREACH
You agree to promptly inform TMA of any breach, or suspected breach, by you of these Terms and of any conduct of any other person which you think may be a breach of these Terms, whether the conduct has ceased, is continuing, or may occur in the future.
- INTELLECTUAL PROPERTY
12.1 All Intellectual Property displayed on or available on via this Sites or connected with the Services, including content, data, information, tables, text, designs, graphics, layouts, names, logos, reports, articles, tools, email communications, source code, software and any other material, is owned or used under licence by TMA. Unless expressly provided otherwise, nothing in these Terms is to be taken to create any form of assignment to you of any of Intellectual Property or associated rights owned or used under licence by TMA and/or its suppliers.
12.2 You must not infringe any Intellectual Property rights owned or used under licence by TMA, or the Intellectual Property rights of any third party. You agree to indemnify TMA against any action taken by a third party against it in respect of any such infringement. TMA reserves all of its rights under this clause.
12.3 All material on this Sites is subject to copyright and should not be reproduced without the permission of TMA and/or its suppliers.
12.4 Without prejudice to TMA’s other rights, you acknowledge and agree that we have the right to immediately cease hosting and to remove from our network or systems any content upon receiving a complaint or allegation that the material infringes copyright or any other Intellectual Property rights of any third party.
- THIRD PARTY CONTENT AND LINKS
13.1 TMA is not responsible for any third party content, external websites, networks, advertisements, directories, software, servers, products and services, databases, information systems and the internet as a whole (Third Party Content) which you may access from the Sites or which is linked to the Services from time to time.
13.2 TMA accepts no responsibility nor liability for promotions shown or advice given in Third Party Content and cannot be held liable for any loss or damage incurred as a result of reliance on any Third Party Content. TMA provides Third Party Content and links to you for convenience purposes only, and the inclusion of any Third Party Content or link does not imply endorsement by TMA of the Sites or any association with its operators.
- SOFTWARE LICENCE
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