TERMS AND CONDITIONS

1. Services

HTM agrees to provide to the Customer and the Customer agrees to obtain from HTM by way of rental, software or hardware required for voice hold and professional voice work for the customers’ existing telephone service located at the Business Premises (“Services”).

2. Price

(a)        The Customer must pay HTM on the date of this Agreement the Establishment Fee.

 

(b)        In addition the Customer must pay HTM, by direct debit or as otherwise agreed, rental for the Services monthly in arrears or monthly in advance in the amount as detailed in the Order form on or before the day in the month as detailed in the order form.

 

3. Term

Minimum service period of 6 months from date of first service installation. This Agreement shall commence on the Commencement Date and end on the date occurring thirty (30) days of receipt of notice in writing by either party terminating this Agreement for any reason whatsoever.

 

4. Payment Terms

(a)        The customer must immediately sign the Direct Debit Form:

 

1. As presented by HTM to the Customer on the date of this Agreement; and

 

1. ii) If replaced from time to time, a new Direct Debit Form;

 

(b)        The Customer must not withdraw or revoke the Direct Debit Form unless it has terminated this Agreement in the manner as set out in this Agreement.

 

(c)        If payment of an amount required by this Agreement is not made under this Agreement, HTM may (in addition to such other rights that HTM may hold) terminate this Agreement immediately and without notice.

 

(d)        Where there is a sum of money payable to HTM which is not paid at the time it should have been paid, then in addition to such other rights that HTM may hold, the Customer must pay to HTM interest at a rate of 15%pa, compounding monthly.

 

5. Customer’s Obligations

(a)        The Customer must:

 

1. i) Keep all software, hardware and materials supplied by HTM in a safe and secure location.

 

1. ii) Must not copy, transfer or in any way infringe with the intellectual property rights of HTM.

 

iii)     Instruct all of its employees, agents, directors and contractors in the safe and proper use of any software, hardware and equipment supplied by HTM to perform the Services, reimburse HTM for the cost of repairs to any of their software, hardware or equipment damaged (fair wear and tear accepted).

 

1. iv) Inform HTM of any software or equipment that is damaged or is in a dangerous condition or in need of repair.

 

1. v) Ensure at the end of this Agreement that it delivers up and provides access to HTM and its employees, agents and contractors to recover and remove any software and equipment.

 

(b)        The Customer:

1. i) Gives consent to HTM to access the software, hardware and equipment for the purposes of completing and providing the Services including without limitation through the Customer’s internet connection.
2. ii) Gives consent to HTM to disclose any information under this Agreement to any third party notwithstanding any privacy laws.

iii)     Warrants that it has a computer which contains a soundcard and a business telephone system with hold capacity which is sufficient to allow HTM to carry out and perform the Services.

(c)        The Customer must indemnify HTM from and against all liabilities, claims, suits, demands, actions, costs; charges, damages, interest or other expenses caused directly or indirectly to any person or property (including the Customer, Customers, their servants or agents or any other person) by, through or in connection with the use or operation of any plant, software, hardware or equipment, and whether caused by any negligent act or omission or any breach of the Services under this Agreement.

 

(d)        The Customer shall on demand reimburse HTM for, and keep HTM indemnified against all expenses (including legal costs and disbursements on a full indemnity basis and including all and any fees charged by a debt collector) incurred by HTM in connection with the enforcement, attempted enforcement or preservation of any rights under these Terms and Conditions.

 

(e)        The Customer acknowledges and accepts all liability and risk arising from this Agreement.

 

(f)         HTM is not obliged to insure for any risk of loss or damage of the Customer.

 

(g)        HTM will not be liable to the Customer for any loss or damage to the Customer caused by any negligence whatsoever on the part of HTM, its servants and agents howsoever connected with the Services supplied by HTM.

 

(h)        HTM will not be liable for any loss suffered by either the Customer or any third party occasioned by delay in delivery of the Services supplied by HTM.

 

(i)         Property in the goods, software, hardware and equipment supplied to provide the Service remains with HTM and the Customer agrees to hold such items in a fiduciary capacity as bailee for HTM. The Customer will not, however, represent to any third parties that is in any way acting for HTM and HTM will not be bound by any contracts with third parties to which the Customer is a party;

 

(j)         The Customer shall if directed by HTM to store the said items supplies marked in such a way that it is clear that they are property of HTM but all costs of storage (whether or not storage is at the direction of HTM) shall be for the account of the Customer;

 

(k)     The Customer authorizes HTM by its servants or agents to enter any premises owned, leased or otherwise by the Customer at any time whatsoever by reasonable force to recover possession of any items, software, hardware and goods of HTM.

 

6. Warranties

To the maximum extent permitted by law, the Customer shall be responsible for and indemnify HTM from and in respect of any liabilities, claims, damages, actions, costs and expenses which may incurred by HTM as a result of or arising out of any breach by the Customer or the Customers of any warranties, covenants, obligations and conditions.

7. Goods and Services Tax

The cost of the Services if they are not described explicitly as being inclusive of GST are provided pursuant to this Agreement exclusive of GST and any payment made under this Agreement will be increased by the GST Rate.

8. General

(a)        This Agreement is governed by the laws which are in force and applicable to this Agreement in Queensland, New South Wales, Victoria, Tasmania, South Australia, Northern Territory, Western Australia, Australian Capital Territory and the Commonwealth of Australia.

(b)        The parties submit to the jurisdiction of the Courts of Queensland, relevant Federal Courts and Courts competent to hear appeals from them.

(c)        This Agreement may be executed as a number of counterparts and shall bind each party from the date upon which this Agreement was executed and delivered by that party. Delivery may be in person or sent by facsimile or email transmission to the other party. Signed facsimile or emailed copies of this Agreement shall be sufficient evidence of the execution of this Agreement and binding upon the parties.

(d)        The Customer shall not without the prior written consent of HTM assign or attempt to assign this Agreement or sub-let or attempt to sub-let the whole or any part of the provision of the Services, nor enter into or attempt to enter into any sub-contract for the provision of the Services or any portion thereof, nor assign its interest in the monies payable or to become payable to it under this Agreement.

9. CONFIDENTIAL INFORMATION

(a)        The Customer acknowledges that during the Term the Customer may become acquainted with or have access to Confidential Information, and agrees to maintain the confidence of the Confidential Information and to prevent its unauthorized disclosure to or use by any other person, firm or company.

(b)        The Customer agrees not to use the Confidential Information for any purpose other than for the benefit of HTM during or after the Term the Customer’s engagement with HTM.

(c)        The Customer must not remove the Confidential Information from the custody of HTM without the written consent of HTM.

(d)        The Customer must not for any reason either for the Customer or any third party appropriate, copy, memorise or in any manner reproduce or reverse engineer any of the Confidential Information.

10. 10. INTELLECTUAL PROPERTY RIGHTS

(a)        The parties acknowledge and agree that HTM owns the Intellectual Property. The Customer covenants and agrees that it will at all times during the Term keep secret and confidential all Intellectual Property except that which is in the public domain and which may otherwise be disclosed in the performance of duties and obligations under this Agreement.

 

(b)        At the end of this Agreement, the Customer must, without demand, return to HTM all originals and copies of all documentation in whatever form comprising Intellectual Property including all extracts or summaries or confidential information that the Customer may make or have and any software or hardware that they create based upon, including or comprising Intellectual Property.

 

11. FORCE MAJEURE

(a)        If either party is rendered unable, wholly or in part, by Force Majeure to carry out or observe any of it’s obligations under this Agreement, it shall give to the other party prompt written notice providing full details of the Force Majeure. The obligations of the parties under this Agreement, to the extent affected by Force Majeure, shall be suspended and no claim by either of the parties hereto against the other party shall avail by reason of such Force Majeure provided that the party giving such notice shall, to the extent practicable, take all reasonable steps to remove the Force Majeure as soon as possible. Such reasonable steps shall not require the notifying party to settle any reasons for Force Majeure on unfavourable terms.

12. Definitions

“Act” means the A New Tax System (Goods and Services Tax) Act 1999 (CTh);

 

“Agreement” means the Terms and Conditions including the Order Form for the Services;

 

“Confidential Information” means information relating directly or indirectly to HTM, its assets and the operation and affairs of HTM including but not limited to performance of the Services and trade secrets, marketing information, software customer lists, financial information and business plans whether or not in some tangible form (and where recorded in some tangible form, whether the recorded is an original or a copy of or extract from the original or another copy or extract)

“Customer” means the party identified under the heading “Customer Trading Name” and “Name of Legal Entity” in the Order Form;

 

“Direct Debit Form” means a form signed by the Customer which allows direct debit of a Customer’s bank account;

 

“Establishment Fee” means the amount calculated by multiplying by 3 the Package Amount;

 

“Force Majeure” means delay or inability to perform caused by war, whether declared or not, insurrections, strikes, lockouts or other industrial disturbance, inability to obtain materials, unavailability of equipment, fire, storm or other severe action of the elements, accidents, government or statutory restrictions or from other causes whether like or unlike the foregoing which are unavoidable or beyond the reasonable control of either of HTM but shall not include, for the avoidance of doubt, a lack of funds or the unserviceability of plant and equipment (for any reason);

 

“GST Law” has the meaning given to that term in the Act or should the Act be repealed, means any Act of Parliament imposing or relating to the imposition or administration of a goods and services tax in Australia and any subordinate legislation made under that act of Parliament;

 

“GST Rate” means the rate of GST applicable to the Supply under the GST Law at the time Supply;

 

“Intellectual Property” includes but is not limited to any Confidential Information or documentation owned, received or developed by HTM or Customer during the term of this Agreement, which is not publicly available and relates to information used, acquired or developed by HTM in the course of HTM business including but not limited to technical data software, marketing information such as membership lists, financial information and business plans prepared by for on behalf of HTM;

 

“HTM” means Happy Talk Media Pty Ltd (ACN 164 273 910);

 

“Order Form” means the document labeled “Service Agreement Order Tax Invoice Form”, the terms of which form part of this Agreement;

 

“Package Amount” means the monthly rental for the Services set out in the Order Form;

 

“Services” means the services required to be performed for the Customer by HTM selected on the Order Form (either Package A, Package B, or Package C) and described in Clause 1 of these Terms and Conditions;

 

“Term” means from the Commencement Date to the date this Agreement is terminated.

 

All terms in the Order Form have the same meaning in this Agreement.