This
website is operated by Lattice Systems Pty Ltd (ACN
113 423 359) (“Lattice Systems”). Your access to and use of the Lattice Systems websites and products are
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 1 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