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These are the standard terms and conditions of supply of the Custsoft
Software Pty Ltd and other services offered. ("the Service").
These terms apply to you as a user of the Service ("Client"
or "you"). Please read these terms and conditions carefully.
It is a condition of your use of the Service that you comply with
these terms and conditions.
1. Terms and Amendment Procedure
1.1 These are the terms upon which we agree to provide the
Service to the Client. The agreement made between us with these
terms commences on the date when your Services were commenced with
Custsoft Software Pty Ltd.
1.2 We may vary these terms, the amount we charge for any
Service, or the terms of the operation of the Service, at any time
by general notice on a page of the internet referred to on the home
page of our web site at http://www.custsoft.com.au. The changes
will become effective upon publication of the notice. Where we vary
the prices for Services, we will give at least 14 days notice of
the change by the same means, and the new prices will apply at the
end of that period.
1.3 If you use the Service after that publication, your use
will constitute an acceptance of the amended terms.
1.4 These terms constitute the agreement in its entirety and supersede
prior agreements.
1.5 We may from time to time run promotions and make special
offers of limited time duration ("Promotions"). All Promotions
are offered subject to their terms and may be withdrawn or altered
at Custsoft Software Pty Ltd's discretion. The terms of a promotion
will override these terms to the extent of any inconsistency.
2. Service
2.1 We will assign the Client a logon name and password which
will provide you with access.
2.2 Scheduled Maintenance - We must perform scheduled maintenance
to servers from time to time. We will attempt to perform all scheduled
maintenance at times which will affect the fewest customers.
2.3 Unscheduled Maintenance - We may need to perform unscheduled
maintenance.
2.4 Archiving of Data - We will archive your data onto backup
mechanisms on a regular basis for the purposes of disaster recovery.
In the event of equipment failure or data corruption, we will restore
from the last known good archive. In the event of corruption of
all of our archives, or in the event that an old archive is used
to restore data, you should be prepared to upload your data to your
web site. You must maintain a recent copy of your data at your premises
at all times. We will not be liable for incomplete, out-of-date,
corrupt or otherwise deficient client data recovered from our backups.
2.5 The Service is provided by Custsoft Software Pty LTD
from data centres in Australia. Custsoft Software Pty LTD will determine
in its absolute discretion from time to time the data centre location
from which your Service is provided.
2.6 In contracting with Custsoft Software Pty LTD for the
Services, the Client obtains no rights to the hardware and other
infrastructure and facilities used by Custsoft Software Pty LTD
to deliver the Service.
2.7 In the absence of any additional written agreement, these
terms and conditions (as varied from time to time) will apply to
any further Services you acquire from Custsoft Software Pty Ltd.
3. Payment
3.1 You must pay for the Service as notified to you by Custsoft
Software Pty LTD in accordance with the prices in force for Services
from time to time.
3.2 You must pay all Service time charges, minimum charges
and other amounts incurred by you or any designated users or incurred
as a result of any use of your password (whether authorised or not)
in accordance with the billing option selected and in advance.
3.3 Prices invoiced to you are inclusive of any government
taxes or charges unless otherwise noted, and exclusive of any registration
or delegation charges imposed by domain name authorities.
3.4 In addition you must provide and pay for:-
(a) the installation and use of telephone lines and all
other equipment needed to access the Service; and
(b) all government taxes, duties and levies (if any) imposed
on either you or us in respect of the Services or any other service
or goods supplied.
3.5 You must pay all amounts billed in accordance with your
billing option. No credit terms are given and payment is required
within 7 days of invoice. Billing period is on a monthly cycle beginning
on the 1st day of the month when you register.
3.6 You consent to us obtaining a credit reporting agency
report containing personal information about you (as well as information
concerning commercial creditworthiness and activities) for the purpose
of collection of payments, which are overdue.
3.7 You agree to pay all legal costs required for debt collection
on your overdue invoices. You also agree to pay Custsoft Software
Pty LTD interest of 12% per p.a. on all overdue accounts.
4. Warranties and Liabilities
4.1 We do not warrant that:-
(a) the services provided under this agreement will be uninterrupted
or error free;
(b) the services will meet your requirements, other than
as expressly set out in this agreement; or
(c) the Services will be free from external intruders (hackers),
virus or worm attack, denial of service attack, or other persons
having unauthorised access to the services or systems of Custsoft
Software Pty Ltd.
4.2 Except as expressly provided to the contrary in this
agreement, all warranties whether express, implied, statutory or
otherwise, relating in any way to the subject matter of this agreement,
are excluded. Where any statute implies any term into this agreement,
and that statute avoids or prohibits provisions in a contract excluding
or modifying the application of or liability under such a term,
then the term will be taken to be included in this agreement. However,
our liability for any breach of the term will, if permitted by that
statute, be limited, at our option, to the resupply of the services
again; or payment of the cost of having the services supplied again.
4.3 Except as provided under clause 4.2, none of Custsoft
Software Pty LTD, its subsidiaries, officers, directors, employees,
partners or suppliers will be liable to you or any third party for:-
(a) any special, punitive, incidental, indirect or consequential
damages of any kind;
(b) any damages whatsoever, including, without limitation,
those resulting from:
(i) loss of use, data or profits, on any theory of liability,
arising out of or in connection with the use of or the inability
to use the Services;
(ii) the statements or actions of any employee or agent of
Custsoft Software Pty LTD;
(iii) any unauthorised access to or alteration of your web
site, transmissions or data;
(iv) any information that is sent or received or not sent
or received;
(v) any failure to store or loss of data, files or other
content;
(vi) your fraudulent, negligent or otherwise unlawful behaviour;
(vii) information, data or other material provided to Custsoft
Software Pty LTD by you or on your behalf; or
(viii) any Services that are delayed or interrupted.
4.4 You warrant that:-
(a) at the time of entering into this agreement you are not
relying on any representation made by us which has not been stated
expressly in this agreement, or on any descriptions or specifications
contained in any other document, including any catalogues or publicity
material which we have produced;
(b) you will conduct such tests and computer virus scanning
as may be necessary to ensure that data uploaded by you onto or
downloaded by you from the Server does not contain any computer
virus and will not in any way, corrupt the data or systems of any
person;
(c) you will keep secure any passwords used to upload data
to the Server; and,
(d) you hold and will continue to hold the copyright in the
Client Data or that you are licensed and will continue to be licensed
to use the Client Data.
4.5 You accept responsibility for all information and material
you issue over any Service, and indemnify us and hold us harmless
against any liability in relation thereto. In particular you undertake
that you shall not publish or issue any information which is illegal
or defamatory. You also acknowledge that we do not vet or approve
any information or material available through the Service. We do
not accept any liability for any loss, claim or damages arising
from or relating to information and material available through the
Service, to the full extent permitted by law. You access and use
such information and material at your own risk.
4.6 You agree to abide by our Acceptable Use Policy which
follows these Terms and Conditions and our Privacy Policy which
is located at http:www.custsoft.com.au and you agree that the terms
of those two policies form part of this agreement between you and
Custsoft Software Pty Ltd.
4.7 You are solely responsible for dealing with persons who
access the Client Data, and must not refer complaints or inquiries
in relation to such data to us.4.8 Except as provided in clause
4.2. we are not liable to you or any other person for:-
(a) cost, loss or liability (including loss of profit or
other consequential damage) arising from our supply or failure or
delay in supplying the Service;
(b) the content, context or confidentiality of any communications
made using the Service;
(c) loss or damage caused by third party software applications
forming part of the Service.
4.9 You indemnify us against all costs, expenses, loss or
liability that we may suffer (directly or indirectly) resulting
from:
(a) your breach of these terms;
(b) your use or misuse of the Service;
(c) the use or misuse of the Service by any person using
your account; and,
(d) publication of defamatory, offensive or otherwise unlawful
material on any web site forming part of your Service.
5. Suspension and Termination of Service
5.1 We may from time to time without notice suspend the Service
or disconnect or deny your access to the Service:-
(a) during any technical failure, modification or maintenance
involved in the Service provided that we will use reasonable endeavours
to procure the resumption of the Services as soon as reasonably
practicable; or
(b) if the Customer fails to comply with any agreement (including
failure to pay charges due) until the breach (if capable of remedy)
is remedied, or does, or allows to be done, anything which in our
opinion may have the effect of jeopardising the operation of the
Service.
(c) notwithstanding any suspension of any Service under this
clause you shall remain liable for all charges due throughout the
period of suspension.
5.2 Custsoft Software Pty LTD may without notice to you remove,
amend or alter your data upon being made aware of:-
(a) any claim or allegation; or
(b) any court order, judgment, determination or other finding
of a court or other competent body, that the data is illegal, defamatory,
offensive or in breach of a third party's rights.
5.3 We may end our agreement with you and cease providing
Services for any reason, on 30 days written notice to you. You may
close your account with Custsoft Software Pty LTD on 30 days written
notice from the 1st day of the month only to Custsoft Software Pty
Ltd.
5.4 If your account is closed you must pay all outstanding
charges immediately and we may delete all Client Data from any storage
media.
6. Domain Names
6.1 If you have requested that Custsoft Software Pty LTD
registers a .com, .net, .org, .biz or .info domain name on your
behalf, you agree that you have read and accept the TLD (Top Level
Domains) Policy applicable to .com, Net, .org, Biz and Info domain
names issued by the registrar MelbourneIT Limited located at URL:
http://www.melbourneit.com.au/policies/gtldtermcond.php3 .You agree
that you are aware of the consents, warranties and indemnity you
are required to give to register, maintain, transfer and renew your
domain name.
6.2 If you have requested that Custsoft Software Pty LTD
register a .com.au domain name on your behalf, you agree that you
have read and accept the Domain Name Allocation Policy applicable
to .com.au domain names issued by the registrar MelbourneIT Limited,
located at URL: http://www.melbourneit.com.au/policies/comaupolicy.php3.
6.3 You agree that in the event of a dispute in registering
a domain name or about a domain name after registration, MelbourneIT's
Dispute Resolution Policy and Rules for Dispute Resolution Policy
any variations to them from time to time bind Custsoft Software
Pty Ltd. You agree that by maintaining the registration of a domain
name after changes or modifications to the Dispute Resolution Policy
become effective, you are confirming your continued acceptance of
these changes and modifications. You agree that in the event of
a dispute you will submit to the jurisdiction of the courts as provided
in the Dispute Resolution Policy. The Dispute Resolution Policy
can be viewed at URL: http://www.melbourneit.com.au/policies/gtlddispute.php3
and the Rules for Dispute Resolution Policy can be viewed at URL:
http://www.melbourneit.com.au/policies/gtldrules.php3.
6.4 You agree that you must pay for any registration or delegation
charges imposed by MelbourneIT or any other domain name authorities
and you will be invoiced for these charges. You understand that
you cannot register a domain name without paying for it via invoice.
6.5 Custsoft Software Pty LTD makes no representation and
gives no warranty about your chosen domain name being available
for registration or use by you.
6.6 You expressly authorise and direct Custsoft Software
Pty LTD to:-
(a) be nominated as authorised billing contact for your domain
name with the domain name registrar;
(b) renew your domain name registration upon receipt of renewal
notification from the domain name registrar, and invoice you for
the relevant charge in accordance with Custsoft Software's list
price from time to time.
6.7 You indemnify Custsoft Software Pty LTD against all claims
arising out of your registration and use and renewal of registration
of your chosen domain name.
6.8 You indemnify Custsoft Software Pty LTD against all claims
arising from failure to renew or register your domain name as it
is your responsibility to monitor its renewal as it falls due and
ensure registration is completed for both registrations and renewals.
7. Products and Services
7.1 Custsoft Software Pty LTD's ecommerce, web site development,customised
software development and all other services and all upgrades and
additional products provided by Custsoft Software Pty LTD are offered
by Custsoft Software Pty LTD and purchased by you on following conditions:-
(a) Custsoft Software Pty LTD provides these Services and
software 'as-is' and without warranty of any kind, either express
or implied.
(b) Custsoft Software Pty LTD gives no warranty that:-
(i) the Services will meet your requirements;
(ii) the Services will be uninterrupted, timely, secure,
or error-free;
(iii) the results that may be obtained from the use of the
Services will be effective, accurate or reliable; and
(iv) any errors in the Services software obtained from or
used through Custsoft Software Pty LTD's site, or any defects in
the Services, will be corrected.
(c) Custsoft Software will not be liable for acts or omissions
of third party providers such as ISP's, and any other provider who
may provide those services as part of the Custsoft Software Pty
LTD Services. You will deal with those providers at your own risk.
(d) You accept full responsibility for all online or system
transactions you originate or execute using the Services or Software
with or without credit and/or debit cards.
(e) You are responsible for and indemnify Custsoft Software
Pty LTD in respect of legal obligations you have to end-users of
the Services or Software under any legislation, including without
limitation the Privacy Act (Cth) 1998 as amended.
(f) Custsoft Software Pty LTD accepts no responsibility for
any cost, loss or liability (including loss of profit or other consequential
damage) that might arise through your use of their Services or Software.
(g) You indemnify Custsoft Software Pty LTD and hold us harmless
against any liability in relation to all transactions undertaken
using the Services or Software, including in respect of claims by
or in respect of services provided by third party providers.
9. Miscellaneous
9.1 The Client grants to Custsoft Software Pty LTD a license
to use and reproduce all Client Data in order to fulfil its obligations
under this agreement. In this agreement "Client Data"
means all information, data, text, logos, images, audio, movie clips
and/or content in any form that forms part of the Client's web sites
or emails.
9.2 Any website or software developed by Custsoft Software
Pty LTD shall remain the sole property of Custsoft Software Pty
LTD in relation to code and copyright.
9.3 A provision of, or a right created under this agreement,
may not be waived except in writing signed by the party granting
the waiver, or varied except in writing signed by the parties.
9.4 The law in force in New South Wales governs this agreement
and the transactions contemplated by this agreement.
9.5 You may not resell Services or assign your rights and
obligations under this agreement without our prior written consent.
(c) Custsoft Software Pty LTD Pty
Limited Custsoft Software Acceptable Use Policy
Updated 25 March 2002
This is Custsoft Software Pty LTD's Acceptable Use Policy. It applies
to you if you are a Custsoft Software Pty LTD Customer or User ("you").
It is intended to ensure that your use of Custsoft Software Pty
LTD's service is trouble free and that you have due regard to the
law and the needs of other users. Please read it carefully. It is
a condition of your use of our service that you comply with the
terms of this Policy.Please look out for any amendments to the Policy
that Custsoft Software Pty LTD ("we") might make in the
future. From time to time we will make amendments to it by giving
you notice of the change and you will then be obliged to comply
with the policy as amended.In this policy we use the following definitions:
Customer means the person or company which has entered into
an agreement with Custsoft Software Pty LTD for supply of Services
or Software whether via verbal agreement or written order or otherwise.
Daily Email Limit means the greater of:
(a) 1,000 messages per day sent via your own mailing list or email
client; or
(b) One message per mailing list per day, where you have purchased
additional mailing lists.
Potentially Prohibited Content means that content so defined
by the Broadcasting Services Act, 1992 (as amended).
Prohibited Content means that content so defined by the
Broadcasting Services Act, 1992 (as amended).
Service means all products and services offered by Custsoft
Software Pty LTD from time to time, which you use.
Spam means:
(a) mass-delivered and/or randomly delivered advertising or other
material;
(b) sent to groups of recipients who are not known to you, who have
not requested the material, or who have not granted permission for
the mail to be sent to them;
(c) delivered via email or discussion groups; and
(d) which does not contain an unsubscribe option.
Users means users of the Service who have not obtained it
as a Customer, but via a Customer who is authorised to resell the
Services such as a Custsoft Software Pty LTD Partner.Custsoft means
Custsoft Software Pty LTD ACN 059 849 688.
1. Some General Principles
1.1 Custsoft Software Pty LTD is not responsible for the
content of traffic. We exercise no supervision or control whatsoever
over the content of the information passing through our network.
(a) We do not assume any responsibility for information not
sent or expressly authorised by us.
(b) The responsibility for traffic that does not conform
with this policy and all possible consequences lies with the sender
of the traffic.
(c) We accept no responsibility for the consequences of unauthorised
breach of our system security such as hacking or denial of service
attacks.
1.2 You should familiarise yourself with your legal responsibilities.
You can view your legal responsibilities in relation to:
(b) procedures which you can implement to control access
to Internet content, including availability, use and appropriate
application of Internet content filtering software; and
(c) obligations which may exist in relation to your content
under the Broadcasting Services Act 1992 (as amended) or other applicable
state legislation, at either of the following web sites: http://www.iia.net.au;
or http://www.aba.gov.au.
1.3 You are responsible for use of your account. If you permit
others to use our Service, you are responsible for making users
of the Service aware of this policy and obtaining compliance of
your users with this policy. 1.4 You are responsible for complying
with conditions of use of other networks. If we provide you with
access to a network outside our Service you must comply with any
acceptable use conditions which apply to that network.2. Acceptable
Uses 2.1 It is your responsibility to ensure that you and others
whom you permit or enable to use Custsoft Software Pty LTD's Service
do so as follows:
(a) use our Service in a manner which does not violate any
applicable laws or regulations;
(b) respect the conventions of the newsgroups, lists and
networks that you use;
(c) respect the legal protection afforded by copyright, trade
marks, license rights and other laws to materials accessible via
our Service;
(d) respect the privacy of others
(e) use the Service in a manner which does not interfere
with or disrupt other network users, services or equipment;
(f) refrain from acts that waste resources or prevent other
users from receiving the full benefit of our services; and
(g) comply with Custsoft Software Pty LTD's terms and conditions
of supply.
2.2 Your use of our Services should be ethical and in accordance
with accepted community standards.3. Unacceptable Uses 3.1 You must
comply with the law. It is not acceptable to use our service for
any purpose which violates local, state, federal or international
laws. You should obtain independent legal advice about your potential
liability for the consequences of the publication of material on
a web site or content database. 3.2 Specific kinds of use are not
allowed. It is not acceptable to use our Service to do any of the
following ("Unacceptable Conduct"):
(a) send Spam;
(b) provide a capability on a Custsoft Software Pty LTD developed
or-hosted site which permits third parties to send Spam from a Custsoft
Software Pty LTD server;
(c) intentionally omit, forge, delete or misrepresent transmission
information including headers, return mailing addresses, Internet
protocol addresses;
(d) engage in any activity intended to withhold or mask Customer's,
or if you are an authorised reseller, its User's corporate identity
or contact information;
(e) send electronic chain letters;
(f) distribute messages to inappropriate or unrelated forums,
newsgroups or mailing lists;
(g) send email to a recipient after the recipient has unsubscribed
from your mailing list or has advised you by other means that they
do not wish to be on the mailing list;
(h) send more emails than the Daily Email Limit;
(i) undertake activities which cause or may cause third party
service providers to place Custsoft Software Pty LTD's Internet
protocol (IP) addresses on a blacklist and/or block those IP addresses;
(j) undertake any activity which impedes Custsoft Software
Pty LTD's ability to provide its Service;
(k) make transmissions of any type or quantity which adversely
affect our operation or jeopardise the use of our service, or its
performance for other subscribers;
(l) violate copyright or other intellectual property rights;
(m) illegally store, use or distribute software in order
to transmit threatening, libellous, obscene or offensive materials;
(n) engage in electronic 'stalking' or any other form of
harassment such as using abusive or aggressive language;
(o) misrepresent or defame others;
(p) harass or impersonate Custsoft Software Pty LTD or other
users;
(q) commit fraud, gain unauthorised access to any computing,
information, or communications devices or resources, including but
not limited to any machines accessible via the Internet;
(r) damage, modify or destroy the files, data, passwords,
devices or resources of Custsoft Software Pty LTD, other users or
third parties;
(s) engage in misleading or deceptive online marketing practices;
(t) conduct any business or activity or solicit the performance
of any activity that is prohibited by law;
(u) make an unauthorised transmission of confidential information
or material protected by trade secrets;
(v) place on the Internet, obtain through the Internet or
transmit using the Internet, Prohibited Content or Potentially Prohibited
Content;
(w) place on the Internet, obtain through the Internet or
transmit using the Internet any of the following:
(i) Content which is (or would be) classified RC or X by
the Classification Board. Such content includes:
(ii) Content hosted in Australia which is classified R and
not subject to a restricted access system which complies with criteria
determined by the ABA. Content classified R is not considered suitable
for minors and includes:
(x) propagate computer worms, viruses and other types of
malicious programs;
(y) use the service to interfere or disrupt other network
users, services or equipment;
(z) attempt to do any of the things set out in (a) to (y)
above.
3.3 It is not acceptable to use our Service to solicit subscribers
to become subscribers of other competitive services.
3.4 Resale of our Services to others is strictly forbidden
under all circumstances unless expressly approved by Custsoft Software
Pty LTD in writing. The Partner program provides for the resale
of services.
4. Third Party Complaint Process
4.1 From time to time, Custsoft Software receives complaints
from third parties ("Complaints") regarding Unacceptable
Conduct, allegedly being conducted by Customers or their Users.
Custsoft Software Pty LTD will make reasonable endeavours to resolve
such complaints by working with Customers. The complaint process
set out here does not apply to complaints the subject of court order
or proceedings, or where Custsoft Software Pty LTD reasonably believes
that it must take urgent action without reference to the Customer.
4.2 Custsoft Software Pty LTD's policy is to put the complaining
party in direct contact with the party best able to answer the complaint.
Accordingly, Custsoft Software Pty LTD's Customers authorise and
direct Custsoft Software Pty LTD to provide to third party complainants
the relevant Customer's email contact details.
4.3 You have a right to complain to the ABA about content.
If you become aware that a web site hosted by Custsoft Software
Pty LTD contains Prohibited Content or Potentially Prohibited Content,
you can make a formal complaint to the Australian Broadcasting Authority
by contacting them at: ABA, Head Office, Level 15 Darling Park,
201 Sussex Street, Sydney NSW 2000, or through their web site at
URL http://www.aba.gov.au.
5. What We May Do to Ensure That This Policy is Being Followed
5.1 We may monitor your account but will respect your privacy.
We may monitor the conduct of your account to determine whether
this policy is being followed.
5.2 If we monitor the conduct of your account we will safeguard
your privacy subject to the terms of our Privacy Policy. You may
request our Privacy Policy by emailing support@custsoft.com.au
5.3 We may suspend or terminate your account and/or notify
the authorities. If we believe that your use of the Service may
break the law or that you have not complied with this policy we
may:
(a) warn you by email (but we are not obliged to do so);
(b) suspend your access to the Service;
(c) terminate your account without notice; and/or
(d) notify and provide relevant information to the authorities,
as appears appropriate in the circumstances.
5.4 In the event of taking action under 5.3 we reserve the
right to delete any or all of your information, material, software
or other content stored on our system in our sole discretion.
5.5 We may, in our absolute discretion and without notice
to you, suspend or terminate your access to the Service:
(a) where we are made aware that a court order, judgment,
decree, determination or otherwise has been made to the effect that
the Customer data is illegal, offensive, objectionable or in breach
of a third party's rights; and
(b) if we are directed to do so by the ABA under a takedown
notice in accordance with its obligations under the Broadcasting
Services Amendment (Online Services) Act 1999 (as amended).
5.6 You agree that you will have no claim against Custsoft
Software Pty LTD in respect of any action reasonably taken by Custsoft
Software Pty LTD in its implementation of the terms of this Acceptable
Use Policy, and you indemnify Custsoft Software Pty LTD against
any claim by a User arising out of the same. Custsoft Software Pty
LTD January 2002
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