BETWEEN: Locatrix International Pty Ltd trading as mPoll.me (ABN 56 107 043 989) of Level 1, 129 Margaret Street, Brisbane, QLD, 4000; (“Company”)
AND: _________________________ (“Customer)
THE PARTIES AGREE:
- The Company shall, from the date of this agreement, provide the mPoll.me service (“the Service”) to the Customer for the duration described in Schedule A.
- The Company will issue an invoice to the Customer each period as described in Schedule A. The Customer will pay each invoice in full within 14 days unless an alternative arrangement between the Company and the Customer has been agreed to in writing. The Company may, in its sole discretion, limit or suspend the Customer’s access to the Service if an invoice remains unpaid either in full or in part, within the agreed payment period.
- The "billing date" is the date an invoice is generated each month. This is typically the date the Customer signed up for or upgraded to a paid account. This date does not change each month or when the Service is upgraded or downgraded to a different subscription level. If your billing date does not fall in a specific month, it will be assumed to be the last day of that month.
- The "billing period" is the period between billing dates each month. Your subscription’s monthly allotment of messages is per billing period.
The Customer must:
- at its cost, provide appropriate access devices, software, operating conditions, cabling, telephone lines, modems and internet connections required for it to access the Web Tools and otherwise receive the benefit of the Services;
- ensure that no unauthorised use is made of the Web Tools;
comply with all of the Company's operating and security requirements and procedures relating to:
- access to the Web Tools; and
- the use of the Services,
obtain and maintain throughout the term of this agreement all relevant licences, approvals, permits and certificates
- required in respect of delivery of the mPoll notification messages; and
- otherwise required in order to receive the benefit of the Service;
- comply with all applicable Laws (including the Privacy Laws) and industry codes and practices; and
- comply with the Company’s directions, policies and procedures relating to the use of the mPoll.me Systems and the Services.
- not act in any way that may have a detrimental effect on the goodwill or good standing of the Company or any supplier of the Company; nor act in any way that may expose the Company or any supplier to the Company to the risk of any legal or administrative action including prosecution under any Laws;
- not transmit any communication or Messages that may harm a minor in any way;
- not send unsolicited electronic commercial messages where the recipient has not consented to receive such messages;
- not act in any way that would interfere with the operation of the Service, nor any of the other business, network, hardware or software services utilised by the Company in the delivery of the Service.
- is solely responsible for all Messages (whether transmitted on its own behalf or on behalf of a third party) delivered via its use of the Service; and
- acknowledges and agrees that the Company has no editorial control over the Messages and is under no obligation to review, moderate, amend or modify the Messages as part of the Services.
- acknowledges and agrees that, notwithstanding paragraph 3(b), the Company and its network suppliers may, in their absolute discretion, monitor the Messages sent by or on behalf of the Customer using the Services.
- must bear all costs arising out of any complaints made in connection with the Messages (including complaints made by any Governmental Agency).
The Customer indemnifies the Company and its Personnel (those indemnified), and will hold those indemnified harmless, against all damages suffered or incurred by any or all of those indemnified arising, directly or indirectly, out of or in connection with:
- a breach of this agreement by the Customer;
- the transmission of any Messages (including any Damages sustained or incurred by those indemnified in connection with complaints or Claims relating to any Messages);
- any negligent or fraudulent act, error or omission on the part of the Customer, its Personnel or End Users;
- loss of or damage to any property or injury to or death of any person caused by any act or omission of the Customer, its Personnel or End Users; or
- any Claim by a third party (including any Network Operator or End User) against the Company relating to the Services or the subject matter of this agreement.
- The Company will maintain reasonable safeguards against the destruction, loss or alteration of any Customer-owned data in the possession or control of the Company.
The Company (and its personnel) will not:
- Use Customer-owned data held by the Service, or to which the Service has access, other than for the purposes of fulfilling it’s service delivery obligations under this agreement;
- Provide, or purport to provide, rights or access to Customer-owned data to any third party, other than in compliance with governmental, legal or regulatory authority obligations.
- The Company does not undertake, warrant or guarantee that the Services will be uninterrupted, continuous or error-free. The Company will have no liability whatsoever relating to the failure or, or interruption in the performance of the Service.
- In the event of a failure of the Service, the Company will use reasonable commercial endeavours to restore the Service to an operational state with a minimum practical delay.
The Company excludes all liability:
- In relation to the Customer using the Services (including any liability to third parties arising as a result of the transmission of any Messages using the Service); and
- for loss of revenue, loss of goodwill, loss of customers, loss of capital, downtime costs, loss of profit, loss of or damage to reputation, loss under or in relation to any other contract, loss of data, loss of use of data, loss of anticipated savings or benefits, the cost of procuring any substitute services, or any indirect, consequential or special loss, damage, cost or expense or other Claims for consequential compensation, incurred by or awarded against the Customer under or in any way connected with this agreement or the provision of the Services.
- Neither party is liable for any failure to perform or delay in performing its obligations under this agreement if that failure or delay is due to anything beyond that party‘s reasonable control. This clause does not apply to any obligation to pay money. The deadline for any obligation that is affected by the Force Majeure will be extended by a period equivalent to the period for which the Force Majeure has prevented that obligation being performed.
- Except where this agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
- The company reserves the right to change or modify the terms of this agreement at any stage. If so, the customer will be advised and the latest version of this agreement will be posted at https://mpoll.me.
- This agreement is governed by the laws of Queensland, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Queensland, Australia.