Dear Customer, the following are Terms and Conditions that you, the customer, must comply with upon entering into a business transaction with Inpho InterActive.
Nature of Your Agreement with InPho InterActive
These terms and conditions form part of your agreement with Visiontek Pty Limited ACN 071 988 835 trading as InPho InterActive. You are deemed to have accepted these terms and conditions if you enter legal relations with InPho InterActive pursuant to a proposal or other document to which these terms and conditions are attached or if you accept payment according to a statement to which these terms and conditions are attached. These terms and conditions may only be amended by a document executed by InPho InterActive. These terms and conditions prevail to the extent of any inconsistency with the terms and conditions of any document issued by you. No document issued by you imposes terms and conditions in addition to, or inconsistent with, these terms and conditions unless expressly agreed by InPho InterActive
pursuant to a separate document issued by InPho InterActive. The agreement between InPho InterActive and you is made in New South Wales. That agreement is for an indeterminate period and may be terminated by either party as agreed in the (sales) Proposal for Establishment of Service or as otherwise agreed by both parties in writing. You submit to the non-exclusive jurisdiction of the courts of New South Wales.
• "Agreed Share" means the share of Net Call Revenue agreed between you and InPho InterActive.
• "Carrier" means a telecommunications provider authorised to operate, in the case of Australia under the Telecommunications Act, including without limitation Telstra (and), Optus and AAPT or in the case of New Zealand under the relevant Act, including without limitation Telecom New Zealand.
• "Information Service" means a telephone service whereby a telephone caller, calling from within Australia or New Zealand as the case may be, may receive certain information, whether by means of an operator, direct connection, recording, voice-activated facsimile transmission or otherwise.
• "Net Call Revenue" means the net revenue, if any, received by InPho InterActive from Your Carrier in respect of Your Information Service, after the deduction of all applicable taxes, expenses and offsets.
• "Service Numbers" means Australian or New Zealand telephone numbers as the case may be through which callers may receive particular information at various rates of charge, including without limitation, in the case of Australia, so-called 1300 numbers, 1800 numbers, 1900 numbers and the like or in the case of New Zealand, so-called 0800 numbers, 0900 numbers and the like.
• "System" means an interactive voice response system which coordinates Your Service Numbers, Your Information Service and Your Carrier.
• "Your Carrier" means the Carrier which operates Your Service Numbers.
• "Your Information Service" means an Information Service operated by you or on your behalf as specified in the InPho InterActive proposal or as otherwise agreed by InPho InterActive and you.
• "Your Service Numbers" means Service Numbers allocated to you in connection with Your Information Service.
• "Proposal for Establishment of Service" means the proposal submitted to you by Inpho Interactive's representative that will be signed by you and returned to our offices prior to the establishment of Your Information Service.
You must establish and maintain Your Information Service and ensure that Your Information Service functions properly and lawfully at all times. You must ensure that the information provided by Your Information Service is accurate and up to date. You must ensure that the content of Your Information Service is not prohibited or restricted by law and does not infringe the rights of any person. You must lawfully set and advertise Your Service Numbers and Your Information Service. You must provide to InPho InterActive all such information and materials as InPho InterActive may require for the purposes of establishing and maintaining the System. You must advise InPho InterActive if your Information Service is to be used as a telephone sex service and if your Service Numbers is to be used for a telephone sex service. Unless advised InPho Interactive has entered into an agreement with you in reliance on your express representations and warranties that Your Information Service will not be used as a telephone sex service and that Your Service Numbers will not be used for a telephone sex service. If Your Carrier assesses that its reserve against bad debts was not sufficient to cover actual bad debts incurred by callers to Your Information Service and raises a bad debt levy on InPho InterActive, you will, within 30 days of receipt of invoice from InPho InterActive, pay to InPho InterActive the total sum of such additional bad debt levy, irrespective of when that amount is invoiced and whether the Information Service is in service at the date of invoice. That you undertake to pay the account in full on or before the due date. In default of such payment, you undertake to pay late payment fees of 2.5% per month on any amount outstanding and to indemnify us and pay all costs and expenses on a solicitor and own client basis if legal action is necessary, and/or EC Credit Control Pty Ltd's fees, which we may incur in recovering from you any overdue amount. In addition You acknowledge that InPho InterActive retains Right of Use of Your Service Numbers and the right to offset The Agreed Share of the Net Call Revenue generated by these numbers against any outstanding amounts until the account is paid in full. You must fulfil your obligations to InPho InterActive at your sole cost and without causing InPho InterActive to incur any costs. In addition to the other remedies available to InPho InterActive, you must indemnify InPho InterActive against any and all costs and damages caused by your failure to fulfil your obligations, including without limitation, legal costs on a full indemnity basis.
InPho InterActive's Obligations
InPho InterActive must establish and reasonably maintain the System during the agreed times according to the specifications contained in the InPho InterActive proposal or the specifications otherwise agreed by InPho InterActive and you. InPho InterActive must pay you the Agreed Share. InPho InterActive will use all reasonable endeavours to account to you for the Agreed Share not later than the end of the calendar month following the calendar month in which the applicable Net Call Revenue is received. You acknowledge and agree that the amount of Net Call Revenue is affected by factors beyond the control of InPho InterActive, including without limitation, the pricing policies and accounting practices of Your Carrier. InPho InterActive makes no warranty or representation regarding the amount of Net Call Revenue nor as to the net value of the Agreed Share. InPho InterActive is entitled to retain all Net Call Revenue after deducting the Agreed Share. No more frequently than once in each calendar year you may inspect books and records kept by InPho InterActive in respect of the Agreed Share if you have given InPho InterActive not less than 30 days prior written notice.
Exclusion or Limitations of Liability
InPho InterActive is not liable to you or any other person for direct, indirect, consequential or incidental damages or expenses of any kind (including, without limitation, loss of profits, loss of life, personal injuries or other incidental or consequential damages) arising from or relating to the System. Unless expressly stated to the contrary in these terms and conditions, InPho InterActive makes no warranty or representation in relation to the System. All statutory and other warranties, promises or representations, however made or given and whether express or implied, as to quality, merchantability or fitness for purpose of the System are expressly negatived and excluded to the fullest extent permitted by law. These terms and conditions will not be read or applied so as to purport to exclude, restrict or modify all or any of the provisions of Part V of the Trade Practices Act 1974 or Part VIII of the Sale of Goods Act 1923 (NSW) or any other law which cannot be excluded, restricted or modified. If InPho InterActive incurs a liability to you under such legislation, the liability of InPho InterActive is limited to the replacement of the applicable goods and services or the supply of equivalent goods and services, or the payment of the costs of such replacement or supply.
All payments to be made by InPho InterActive are calculated inclusive of GST. If InPho InterActive makes any taxable supply to you for the purposes of the GST Act, you must pay on demand to InPho InterActive an amount equal to the GST payable in respect of that supply. To the extent that any payment by InPho InterActive is increased by reference to any GST for which InPho InterActive is not entitled to receive an input tax credit, you must pay to InPho InterActive on demand an amount equal to that increase. If InPho InterActive is subject to any penalties or interest, in consequence of a late payment of GST caused by you, you must pay to InPho InterActive on demand an additional amount equal to the amount of such penalties and interest. Without limiting the rights of InPho InterActive in circumstances where you fail or refuse to pay any amount payable to InPho InterActive under these terms and conditions, InPho InterActive is entitled to offset that amount from any other monies payable to you on any cause of indebtedness.