Terms & Conditions

Customers must read and have fully understood and agreed to the following terms and conditions: Definitions

• "OMNISERVE" is Omniserve Pty Ltd a registered company, ABN 47 093 444 449. This Term incorporates its officers, directors, employees and contractors.

• "Account" means an account provided to use a service supplied by OMNISERVE.

• "Network" means hardware and/or software used to provide a service.

• "Internet" means the network of networks to which an account provides access.

• "You" or "the Customer" means that legal entity that is entering and bound by this contract with OMNISERVE. "You" and "the customer" may be used interchangeably.

• "Service", "Supply", "Product", "Goods" means the services or products for which OMNISERVE is contracted to provide and are used interchangeably.

• "Content", "Material", "Information" means any information which could be transmitted or received by digital means and incorporates static or active software programs or the results of programs and other online events or the results of online events any of which may be public or private or any combination thereof. These words are used interchangeably.

• "Publish", "Post", "Propagate" means to transmit or store or upload or download or receive content and are used interchangeably.

• "Suspension", means OMNISERVE initiated restriction or interruption to service(s) due to non-payment of account or breach of these terms and conditions or acceptable Usage Policy. A suspended account still incurs full charges and does not constitute termination of the customers' obligations under these terms and conditions.

• "AUP", means Acceptable Use Policy or Acceptable Usage Policy.

• 1Mb (one megabyte) is equal to 1,000,000 bytes for billing purposes.

• Plurals include singulars and vice versa.

• Masculine include feminine and vice versa.

1. Agreement

i. This document is the general terms and conditions. Other more specific terms and conditions may apply to specific products and/or services.

ii. In the circumstance where you purchase a service through a reseller then OMNISERVE has no direct contract with you however you are still bound through your reseller by these terms and conditions and the AUP.

iii. Provision to OMNISERVE products and services is through an account applied for by a customer who may be a reseller and dully approved by OMNISERVE. OMNISERVE reserves the right to refuse any application for whatever reason.

iv. This document incorporates the AUP document.

2. Privacy

i. OMNISERVE will endeavour not to release any information collected about you to a third party.

ii. OMNISERVE will not sell its database of customer details or details about customers to a third party.

iii. We also respect the right of users to remain anonymous and will endeavour not to knowingly disclose user identities unless directed by a court of law.

iv. The customer agrees that OMNISERVE may report any outstanding debts past 60 days due, including full customer details to relevant credit agencies.

3. Acceptable Use Policy

i. Customer agrees to be bound by the AUP and that this AUP agreement is a pre-condition of access to OMNISERVE services.

4. General Service

i. The customer agrees that any services provided are not continuous or faultless or error free and that interruption, delays, faults, degradations and outages to services may occur from time to time. For example interruptions may occur due to maintenance of software or hardware, outages also may be the result of hardware or software failure or external network failures, etc.

ii. The customer will not hold OMNISERVE responsible or liable for any interruption or delays or degradation to services.

iii. Where provision of a service involves the use of a third party service, for example a carriage service or a domain name service, the customer agrees that OMNISERVE has no responsibility for the performance or non-performance of these services.

iv. No service need be provided by OMNISERVE without either a signed application form or an online application submitted and appropriate consent to enter into a legal contract bound by these and other relevant terms and conditions.

v. Unless prior credit arrangements are in place OMNISERVE has the right to refuse to provide a service or suspend a service or terminate a service that is not paid for in advance.

vi. OMNISERVE reserves the right to refuse an existing account an application for a service.

vii. Due to changing technology and other such circumstances OMNISERVE reserves to modify the nature and type of services provided as it sees appropriate.

5. Responsibility

i. The customer must be over 13 of age. If the customer is under 18 years of age then a custodian must complete and be bound to this agreement as the responsible party for this contract in place of the customer.

ii. The customer agrees that by activating an online event (such as clicking an "I Agree" button) which incorporates agreement to these terms and conditions that this event legally binds them as if they had signed this contract and given full legal consent to be bound by these terms and conditions and any other relevant conditions referred to.

iii. OMNISERVE reserves the right to take action, including legal or suspension of or termination of a service, against a customer who interferes with the rights of another user online, or attempts to interfere with the smooth running of the internet or OMNISERVES' services. We reserve the right to discontinue, without refund or notice, any account or service where usage of the account or service is deemed to be an abuse, and we will charge the customer for costs incurred by any such abuse.

iv. What constitutes "abuse" will be entirely determined by OMNISERVE. Abuse includes but is not limited to the principals and points of the AUP.

v. The customer warrants that all details and information provided to OMNISERVE is correct, truthful and accurate.

vi. The customer warrants keeping up to date all contact and billing details in order to receive invoices and other communications from OMNISERVE.

vii. Where a service is provided without a password the customer must ensure that no unauthorised use of that service occurs.

viii. The customer agrees that where a password has been revealed or compromised or unauthorised use of a service occurs that the customer is still liable for any charges or consequences that may arise from that use.

ix. Where a customer believes a password has been revealed or compromised they must notify OMNISERVE at the earliest possibility.

x. The customer agrees that where an authorised third party uses a service provided by OMNISERVE that the customer has a responsibility for ensuring that the third party agrees and abides by these terms and conditions.

xi. OMNISERVE retains the right to refuse access if a customer does not present Caller Line Identification (CLID) to an access service.

xii. Specifically OMNISERVE accepts no responsibility for the customers' end of an access service or for the performance of any telecommunication or carriage or other service used to access our services.

xiii. OMNISERVE reserves the right to immediately suspend a service or refuse supply without notice if it believes that the customer may in any way not meet its obligations to pay for the services as they fall due.

xiv. OMNISERVE reserves the right to demand what it considers an appropriate bond to be held as guarantee by OMNISERVE where the customer has a history of late or non payment before a service will be resupplied or continuation of supply is to occur.

xv. The customer agrees that accounts and services are not transferable and that the customer is liable for all charges incurred by an account regardless or not of any third party, authorised or not, use of OMNISERVE service(s).

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6. No Liability

i. The customer fully indemnifies OMNISERVE, its employees, officers, directors, contractors and any other representatives against any proceedings, action, loss, damages or claims or other events which may arise from the customers account(s) or use, misuse or non-use of a service, product or goods supplied by OMNISERVE including, but not limited to, copyright breaches, defamatory comments or events, racial vilification, intellectual property infringements, illegal pornographic material, actions that contravene export controls, threatening or violent actions or behaviour or any other unlawful event in any part of the world where they may be unlawful.

ii. In relation to a claim against OMNISERVE, OMNISERVE may require you to conduct the defence and meet its cost for any legal proceedings or compensations or other events that are the results of your actions or inactions or failure to meet these terms and conditions or any Commonwealth Law or any other Law.

iii. Where OMNISERVE requires legal advice in relation to an activity of the customer, the customer agrees to cover the cost of that advice.

iv. The customer agrees to take full responsibility for any content that it publishes using an OMNISERVE service.

v. In any event OMNISERVES' sole liability will be limited to the cost of the service it supplies or its resupply where OMNISERVE chooses to.

vi. OMNISERVE reserves the right to remove or block access to any content published, posted or propagated by the customer using an OMNISERVE service, where there is a breach of the AUP.

vii. The customer warrants not holding OMNISERVE liable for any loss or damage or liability in the event or such blocking or removal of content.

viii. The customer agrees that full editorial control over its content remains with the customer and that OMNISERVE will not edit or alter content of published material.

ix. The customer warrants that all information provided to OMNISERVE is truthful and correct and accurate and up to date and that the person designated is of above 18 years of age and is legally empowered to act and enter into this contract as the customer or on behalf of the customer as indicated on the relevant application form.

x. The customer warrants that all information that may be relevant to the provision of service by OMNISERVE is disclosed by the customer to OMNISERVE prior to such provision and that any false or misleading or incomplete information provided is grounds for termination without notice and possible compensation to OMNISERVE.

xi. The customer warrants that no person under the age of 18 years will use a service provided by OMNISERVE without parental supervision and or filter software used to protect the minor.

xii. The customer agrees that OMNISERVE is in no way responsible for the content of the internet or information or actions or events which may be carried by, or from, or to, a third party or the customer or OMNISERVE using any OMNISERVE service.

xiii. The customer agrees that exposure to viruses and other harmful events may occur when accessing the general internet and dealing with such events is outside the responsibility of OMNISERVE and that it is entirely the customers' responsibility to deal with such exposures.

xiv. OMNISERVE will endeavour to maximise availability of its services, but accepts no responsibility for either our own or third party failures, or any other events which may interrupt, delay or degrade the service, or any consequential or ongoing loss, damage, claim or liability to the maximum extent permissible by law.

7. Service Level Agreements

i. The customer agrees that any service level agreements exclude any events outside of OMNISERVES' control. This excludes issues like but not limited to: viruses, link flooding, malicious attacks etc.

ii. Where a service level agreement is in place that has not been met by OMNISERVE it is the customer responsibility to lodge a claim within 14 days under that agreement.

iii. Any compensation resulting from a service level agreement will be considered paid by crediting the customers account with appropriate amount.

8. Charges and Payments

i. The customer agrees to pay all fees as specified by OMNISERVE as a precondition of supply of services.

ii. Payment information and due dates will be provided with your invoices, and we reserve the right to charge which ever is the greater of $11 or 5.5% (inc GST), as handling fee on late payments. Any or all services may also be suspended or terminated at OMNISERVES' discretion until payment including any tax is received in full and any reconnection fees.

iii. OMNISERVE may charge a 5% surcharge on Amex or Dinners credit card payments or 3% surcharge on other credit card payments.

iv. The customer agrees OMNISERVE may send invoices to the customer via email.

v. It is the customers' responsibility to ensure that a current active email address is supplied to OMNISERVE for the delivery of invoices.

vi. All moneys paid to OMNISERVE are non-refundable.

vii. Bonuses paid by OMNISERVE are not transferable into cash or refundable and can only be used as credit to be expensed on an account.

viii. All pricing is subject to change with 1 months notice. Please check the OMNISERVE web sites for latest details.

ix. Title to any goods provided by OMNISERVE, remain the property of OMNISERVE until payment is received in full.

x. OMNISERVE reserves the right to offset any amounts owed against any amounts due.

xi. Overdue amounts are payable immediately.

9. Disputes

i. Where a dispute over an amount invoiced occurs the customer agrees to pay any undisputed amounts by the due date of those amounts.

ii. The customer must produce evidence to substantiate any disputed amounts prior to invoice due date.

iii. The customer will not withhold payments for other amounts not related to that dispute.

iv. OMNISERVE will endeavour to investigate any issues arising from a dispute and make a determination within 60 days, upon which the amount will be withdrawn, corrected or become immediately payable by the customer.

10. Prepayments and Refunds

i. Where discounts are provided for plans greater then one month, prepayments on these plans are not refundable. This includes 3, 6 and 12 months or greater plans.

ii. Refunds are available in the first 30 days of a service and thereafter at one month notice on monthly plans.

iii. Prepayments on plans greater then 3 months constitute a minimum commitment for the length of that service. Plans may upgraded be at any time or changed at the end of period. Plans however may not be downgraded or refunded during the pre-commitment period.

11. GST

i. The customer agrees to pay Goods and Services Tax or other applicable tax and that services are generally quoted with GST.

12. Filtering

i. Where OMNISERVE provides filtering software or services, such as SPAM or virus filtering or general or other filtering services, the customer agrees that such software can not be perfect and may occasionally fail to filter unwanted material, and the customer will not hold OMNISERVE responsible or liable for any consequences arising from material slipping through.

13. Force Majeure

i. In the event of an act of major catastrophe such as terrorism, earthquake, riot, civil disorder, flood, fire, storm or other major disaster OMNISERVE reserves the right to suspend all its obligations under this contract or void the contract at its option.

14. Termination and Suspension

i. Either party may terminate this agreement in writing giving signed 1 months notice, by way of fax or normal postal mail or by hand delivery. Email or verbal notice is insufficient to terminate this contract.

ii. OMNISERVE may terminate this contract without notice where a breach has occurred of this agreement or the AUP.

iii. Until proper notice has been provided to OMNISERVE, the customer agrees that they are still incurring monthly or any other contractual charges and fees even if a service is unused, suspended or inactivated.

iv. Where a minimum term has been specified for a service the customer is liable for and must pay the remaining portion of the contract as calculated by OMNISERVE.

v. The customer agrees that suspension of an account or service, by OMNISERVE, does not terminate this contract or the customers' obligations under this contract.

vi. OMNISERVE reserves the right to suspend an account via way of blocking supply or access to a service or degradation of a service. Notice will endeavour to be made via email with reasons prior to such suspension. Where such notice fails or is not received the blocking of supply or service will be deemed to constitute notice.

vii. The customer agrees to pay any reconnection charges in relation to suspension or termination of services.

viii. The customer agrees that once an account has been put on hold or suspended it is the customers' responsibility to contact OMNISERVE to either terminate or correct any causes for the suspension prior to reestablishment of the supply of a service.

ix. Once OMNISERVE suspends an account the customer waives any right under any service level performance agreements or right of access or supply until such time as the customer demonstrates to OMNISERVE that the reasons for suspension have been dutifully addressed to OMNISERVES' satisfaction.

x. Once a service is terminated, OMNISERVE has the right to remove any content, public or private, that you may have published, posted, propagated and/or received.

15. Domains

i. The customer agrees that OMNISERVE can not guarantee provision of a domain name nor the timeliness of provision for domains and that rules and regulations outside of OMNISERVE control govern the use, fees and issuing of domains.

ii. The customer also agrees that domain name applications are not an instantaneous process and that while a domain may appear to be available, by the time the application is processed and forwarded the domain may no longer be available.

iii. The customer grants OMNISERVE full right to choose an appropriate registrar in procuring domain names on behalf of the customer and the right to change registrars as it sees fit. OMNISERVE will give customer an opportunity to refuse such change vie email notice.

iv. The customer agrees that transfer of domain names is outside the responsibility of OMNISERVE and that it is the customers' responsibility to authorise and finalise transfer of domain names to and from OMNISERVE.

16. Resellers

i. The customer agrees not to resell any services provided by OMNISERVE without an appropriate application form duly submitted and approval granted by OMNISERVE. ii. Where a service has been resold through you any obligations falling on you are to be forwarded and made clear, obvious and binding on the entity that the service is resold to. iii. A reseller warrants not reselling a service in such a way that the use of the service breaches these terms and conditions and the AUP.

17. Backups and Recovery

i. OMNISERVE will perform periodic backups of any web material published to a mirror disk where appropriate. OMNISERVE will also periodically backup such material to digital media. In the event of a disaster such as hardware failure, OMNISERVE will attempt to recover from any backups the customers' web content. Where such recovery fails for whatever reason the customer must be prepared to re-upload to our service any such content. ii. Recovery of material lost by a customer will incur a recovery fee. iii. The customer agrees that due to the dynamic content of email activities, email spools are not backed up and that there is no guarantee of receipt of any email items. iv. The customer agrees that they must maintain their own copy of any content published via the OMNISERVE service and that OMNISERVE should never be used as any "master" or primary or critical or sole copy of any content. v. Where a customer loses material and requires OMNISERVE to recover such material from backups OMNISERVE may charge for this service if it is able to provide it.

18. Intellectual Property

i. You hereby grant to OMNISERVE and warrant that you have obtained all authorisations, licences and consents necessary for OMNISERVE to perform its obligations and exercise its rights under these terms and conditions and that these are granted to OMNISERVE for this purpose. ii. The customer agrees that no intellectual property rights are assigned to the customer in the use of a service provided by OMNISERVE unless otherwise specifically contracted. iii. Likewise none of the customers' intellectual property rights are assigned to OMNISERVE via the use of a service provided by OMNISERVE unless otherwise specifically contracted or required for OMNISERVE to provide its services. iv. Any rights or licences to content granted to OMNISERVE survive the termination of this contract unless otherwise agreed in writing.

19. Directors Guarantee

i. Where a customer is a legal entity other then a natural person, such as a company, all directors or equivalent of that legal entity unconditionally warrant paying and fully personally guaranteeing any debt to OMNISERVE of that entity for all and every service provided by OMNISERVE.

20. Evolving Contract

i. OMNISERVE reserves the right to modify these terms and conditions and the AUP from time to time and will make available any such changes by posting them to the internet. Any such changes are effective from the date they are so posted.

21. Governing Law

i. This contract is governed by the laws in force in the state of Victoria in the Commonwealth of Australia.

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