Click To Call Me
Now Service Agreement
This Service Agreement constitute
the entire agreement and understanding between Callverse PTY Limited (ABN 60 125 299 809)
of 543 Glenmore Road, Edgecliff, NSW 2027, Australia
("we", "us, "our") and the Customer specified in sign up form
("you", "your") with respect to the use of Click To Call Me
Now's click to call service. They supersede any
other written or oral representations, understandings or
agreements.
Submission of the sign up form
constitutes your approval of these terms and conditions.
For any terms with the first letter
capitalized please see the definitions preceding bracketed words in
bold and listed at the end of this
Agreement.
1. Click To Call
Service
(a) We will provide you with our Click To Call Service which enables users to make a free phone call to you.
(b) You are liable for
all fees incurred as a result of use of your Service.
(c) We will use
reasonable endeavours to provide you with access to Service on a
continuous basis. However, you acknowledge
that:
(i) the Service is not error or fault free and that you may experience interruptions and usage difficulties from time to time;
(ii) we are not
responsible for the successful carriage and delivery of Service
messages, including over third party telecommunications
networks;
(iii) we may immediately
and without notice to you suspend access to the
Service:
(A) during any technical
failure, modification or maintenance involving the
Service;
(B) if you breach this
Agreement and have not remedied the breach within 15 days of us
notifying you of the breach and requesting that it be remedied;
or
(C) if you do or allow
to be done anything, which, in our reasonable opinion may have the
effect of jeopardising the operation of our or any third party's
business, facilities or the services we supply to our
customers.
(d) Click to Call Me Now
does not have any control over the visitor to your website using
the Click To Call Service.
2. Limitations on
Use
You
agree:
(a) not to take any
action that may, in our reasonable opinion, adversely affect or
impair any of our rights, title and interests in and to the
Service, and/or any of our Intellectual Property Rights in any
manner or form;
(b) to use the Service
for which:
(i) comply with all
applicable laws and regulations and the requirements of any
government or statutory body;
(ii) comply with all
reasonable industry and Click To Call Me Now's
policies, standards and codes.
(c) not to repackage,
market, license, distribute, transfer, lend, rent or otherwise
commercially exploit the Software or translate or export the
Software into any other computer
language;
(d) to notify us
immediately if you become aware of any unauthorized use by any
person of the whole or any part of the
Service;
(e) not to merge all or
any part of the Software with other computer programs, products or
services without our prior written
consent;
(f) not to reverse
engineer, reverse assemble or reverse compile or directly or
indirectly allow a third party to reverse engineer, reverse
assemble or reverse compile the Software or otherwise attempt to
discover any portion of the source code or trade secrets related to
the Software, except as and to the extent that you are legally
authorised to do so under any applicable
laws;
(g) not to introduce
into our system viruses, worms, trojan horses or other harmful or
malicious software;
(h) to indemnify us for
any loss, cost or damage we incur as a result of your failure to
comply with your obligations in this clause.
3. Fees and
Payment
(a) You will prepay via
credit card to use the service. If your balance falls below $5.00
the service will be suspended until you top up your
account.
(b) To the extent
permitted by law any prepayment of Charges is not
refundable.
(c) If your credit card
expires or we are for any other reason unable to debit Charges to
your credit card, we may immediately and without notice suspend
your use of the Service
4. GST
You must pay us on demand any goods
and services tax, value added tax or any other like tax ("GST")
which is payable as a consequence of any supply made or deemed to
be made or other matter or thing done under or in connection with
this Agreement by us (together with any fine, penalty or interest
payable because of your default). The
amount paid by you to us on account of GST must be sufficient to
ensure that the economic benefit to us of this Agreement remains
the same whether GST applies or not.
5. Exclusion of
Warranties
We shall use all reasonable efforts
to rectify (or provide work-arounds for) any defects in the
Services notified by you to us in writing. Except as
otherwise expressly stated in these terms and conditions, we make
no express or implied warranties to you and expressly exclude all
warranties, conditions and terms implied by statute, general law,
international convention or custom, including without limitation
any and all implied warranties with respect to merchantability,
fitness for purpose, title and non-infringement, except for any
implied condition or warranty, the exclusion of which would
contravene any statute or cause this clause to be void.
6. Limitation of
Liability
(a) To the extent
permitted by law, where the goods or services we supply under these
terms and conditions are subject to warranties or terms implied by
statute, general law, international convention or custom that
cannot be excluded, restricted or modified our liability for breach
of any such condition or warranty will be limited at our option
to:
(i) in the case of
goods, to the supply of the goods again or payment of the cost of
supplying the goods again; and
(ii) in the case of
services, the supply of the services again or payment of the cost
of supplying the services again.
(b) To the extent
permitted by law, our liability to you for any loss or damage,
whether arising in contract, negligence or otherwise shall not
exceed the total amount we actually received from you with respect
to the Service. We will not be liable in any event
(whether in contract, tort or otherwise) for any consequential,
indirect, incidental, special, punitive or exemplary damages,
including without limitation any loss of profits or loss or
corruption of data or loss of anticipated savings, loss of goodwill
or economic loss, even if we have been advised of the possibility
of such loss or damage.
(c) Each party's
liability in contract, tort, negligence, under statute or otherwise
must be reduced by the extent, if any, to which the other party
contributed to the loss.
7. Intellectual
Property
You acknowledge that the Software is
a commercially valuable, proprietary product, the design and
development of which reflects the effort of skilled development
experts and the investment of considerable time and expense, and is
subject to copyright and other Intellectual Property
Rights. We are the owner, or authorised licensee, of
all rights, title and interests in and to the Software and, except
as otherwise specifically granted under these terms and conditions,
you obtain no right, title or interest in or to the Software.
Except as expressly permitted by law you will not decompile or
reverse engineer the Software. All source code of the Software is
our valuable secret.
8. Confidentiality
(a) Neither party will
disclose to any third party without the prior written consent of
the other party any Confidential Information received from the
other party. This restriction does not apply to
information which is or becomes generally available to the public
(other than as a result of a breach of an obligation under this
clause), is independently developed by the recipient or is required
by law to be disclosed.
(b) Each party will only
use the Confidential Information of the other party for the sole
purpose of performing its obligations under this
Agreement.
(c) This clause does not
prevent us from disclosing the existence of this Agreement to third
parties for the purposes of marketing to customers and potential
customers.
9. Term and
Termination
(a) This Agreement will
commence once you have ticked the box to agree to the terms and
conditions.
(b) We may terminate these terms and conditions at any time with immediate effect if you breach any of these terms and conditions and fail to remedy that breach within 21 days after receiving notice of the breach requiring you to do so.
(c) These terms and
conditions will terminate automatically if either party becomes the
subject of an Insolvency Event.
10. Consequences of
Termination or Expiration
(a) Upon the termination
of these terms and conditions for any reason, all rights granted to
you under these terms and conditions cease and you
must:
(i) immediately
discontinue all use of the Software and the Service;
and
(ii) immediately pay to
us any outstanding Charges.
(b) The provisions of
clauses 7, 8 and 9 survive termination or expiration of this
Agreement.
11. Force
Majeure
Other than in relation to any
payment obligations under these terms and conditions no party will
be in breach of its obligations under these terms and conditions to
the extent that the failure or delay occurs because of a Force
Majeure Event and the affected party will be granted a reasonable
extension of time to complete its performance of any obligations
affected by that Force Majeure Event.
12. General
Provisions
(a) This Agreement may
only be varied by agreement of both parties in
writing.
(b) All notices to be
given by a party to the other party must be in writing and shall be
sent by facsimile or electronic mail to their respective addresses
on the Application Form or as varied by written
notice. This is in addition to any other mode of
service permitted by law.
(c) Any provision of
these terms and conditions will be read down to the extent
necessary to prevent that provision or these terms and conditions
being invalid, voidable or unenforceable in the
circumstances.
(d) You may not assign
or attempt to assign any of your rights or obligations under these
terms and conditions without our prior written consent which shall
not be unreasonably withheld.
(e) These terms and
conditions are governed by the laws of New South Wales and each
party irrevocably submits to the exclusive jurisdiction of the
Courts of that State.
13. Definitions
"Confidential Information" in
relation to a party, means all information relating to that party
including, without limitation, that party's,
systems, processes, data, customers, personnel, assets, products,
services and affairs, which is disclosed, communicated or delivered
to the other party or which comes to the other
party's knowledge, or into its possession,
before, on or after the date of these terms and
conditions.
"Force Majeure Event" means
an event or circumstance that, despite its reasonable effort and
without its fault or negligence, a party is unable to control and
includes, without limitation, any act of God, war and other
hostilities, fire, flood, strikes, lock-outs, delays in transport,
breakdowns in machinery, or restrictions or prohibitions or any
other acts by any government or semi-government
authority.
"Insolvency Event" includes,
without limitation, an arrangement, compromise, winding up,
dissolution, official management, appointment of administrator,
liquidator, provisional liquidator or controller, assignment for
the benefit of a creditor, scheme of arrangement with creditors,
insolvency, bankruptcy or if it applies, a merger, amalgamation,
reconstruction or change in the constitution of an entity for the
purpose or having the effect of altering a party's rights with its
creditors, or anything having a substantially similar effect to any
of the events specified under the law of any
jurisdiction.
"Intellectual Property Rights" means all rights, whether registrable, registered or unregistered under the laws of any jurisdiction throughout the world, including, but not limited to any copyrights, patents, designs, trade marks, service marks, trade names, business names, get up, trade secrets and any applications for, or rights to obtain or acquire, any such intellectual property rights.