|Oi! On-Demand - Terms and Conditions|
1. These terms apply to our online on-demand service providing you with access and use of our Oi! software which allows you to create, manage and send emails for your business purposes (Service). These terms and our Policies are the sole terms of our contract with you about the Service. Except as required by the mandatory operation of law all implied terms and conditions are excluded.
2. In these Terms:
2.1 Act means Spam Act 2003 (Commonwealth).
2.2 email has the meaning given to electronic message in the Act and which is sent by you via the Service.
2.3 Oi! means our software product called Oi! (current and any future versions) that provides users with the tools and resources to create, manage and send emails.
2.4 Policies mean our policies from time to time in respect of the Service and includes our Fee Schedule and Prohibited Content Policy.
2.5 we or us means Rice Studios Pty Ltd (ACN 121 133 935).
3. We can amend these terms (including our Policies) on 30 days notice to you. You may terminate these terms on the day prior to the change taking effect if you do not accept the changes.
Starting the Service
4. You must complete the online registration form at our website (www.ricestudios.com.au) in order to use the Service. You are deemed to accept these terms in the online registration process by clicking the 'I accept these terms' button or by using the Service.
5. You warrant and agree that you will provide true and accurate information in completing the online registration.
6. Our customer service staff will then contact you via email once your application has been accepted. You are responsible for maintaining the security of your account, passwords and files.
Your Use of the Service
7. Please read clause 8 carefully. It is important that you understand and comply with clause 8.
8. At all times you agree:
8.1 you will ensure your use of the Service strictly complies with all applicable laws including the Act and in particular :
8.1.1 in respect of commercial electronic messages (within the meaning of the Act):
(a) you will not send unsolicited emails (see section 16 and Schedule 2 of the Act);
(b) you will include in all such emails the information required by the Act including accurate information identifying you and giving your contact details (see section 17 of the Act);
(c) you will ensure the email contains a functional unsubscribe facility and message about the same (see section 18 of the Act) and:
(i) the unsubscribe facility must remain operational for a period of 30 days after the date on which you send the email;
(ii) you agree that you will not remove, disable or attempt to remove or disable the unsubscribe facility; and
(iii) you are responsible for monitoring and processing unsubscribe requests and must remove from your email list any such email addresses within 10 days of receiving a request;
8.2 in respect of designated commercial electronic messages within the meaning of the Act you will include in such emails all the information required by the Act (including accurate information identifying you and giving your contact details (see section 17 of the Act));
8.3 other than for emails which are designated commercial electronic messages within the meaning of the Act you will not send any unsolicited emails or send emails to persons identified in any third party emailing list;
8.4 you will ensure that the content of your emails complies with all applicable laws (including mandatory codes of conduct as to content) and our Policies;
8.5 you will ensure that the content of your emails does not breach any legal obligations (including mandatory codes of code) applicable to the ISP we engage to host and provide the Service;
8.6 you will comply with our Policies;
8.7 you will comply with all mandatory laws as to privacy (including the National Privacy Principles if applicable to you) in respect of your use of the Service;
8.8 you will ensure that the content of your emails does not infringe the intellectual property rights of any person;
8.9 you will ensure you comply with any Spam laws applicable in countries where your emails are received; and
8.10 you will not send further emails to a person if you are using the Oi! feature that allows recipients to confirm whether they consent to you sending emails and that person does not use the feature to confirm they give such consent.
9. If the Act does not apply to you then this clause deems that the Act does apply to you and you agree to comply with the terms of the Act.
Fees and Payment
10. The fee for the Service is in Australian dollars and is as specified or calculated in our Fee Schedule (Fee). We may change the Fee Schedule on 30 days notice to you. You may terminate these terms on the day prior to the change to the Fee Schedule taking effect if you do not accept the changes.
11. If we require, you must provide us with a proper authorisation to charge the Fee to your credit card. We will issue you with an electronic tax invoice for the Fee for the Service each month (Invoice). You must pay the Invoice within the time specified in our Invoice or, if applicable we may charge the Fee to your credit card on the date we issue the Invoice. If for any reason we are unable to obtain full payment of the Fee we may without notice to you suspend your access to the Service until we receive payment in full. If you pay an Invoice by credit card you must also pay us a credit card surcharge. The credit card surcharge will be an amount equal to the total costs we incur from third parties because you pay us by credit card.
12. If the Fee is not paid on time, we may charge you interest at Westpac's indicator rate plus 2% from the date of the default until we receive payment in full. We may apportion any part payments you make against any outstanding principal or interest as we may decide.
13. You acknowledge and agree that you are responsible for paying the Fee regardless of whether delivery of emails through the Service to their intended recipients is prevented or blocked by any third party.
14. You may not deduct from the Fee any set off, counterclaim or other sum unless we agree in writing.
15. You may terminate these terms at any time by calling our customer support staff. On termination, you are not entitled to any refunds for any Fees paid and you must pay all Fees for the period up to termination.
16. We may terminate these terms or suspend the Services immediately by notice to you if:
16.1 you fail to pay the Fees in full within 5 working days of the due date;
16.2 you breach any of these terms or we (on reasonable grounds) suspect you are in breach;
16.3 you cause us to breach any obligation we have with the ISP hosting the Services; or
16.4 you commit an act of bankruptcy under the Bankruptcy Act or you become an externally-administered body corporate (within the meaning of the Corporations Act 2001) or a party takes action to make you an externally-administered body corporate.
17. Termination does not affect any of our rights or remedies existing before termination or arising from termination.
18. We will delete any of your archived data within 30 days after the date of termination. After termination, you are required to process all unsubscribe requests within 30 days of your last email campaign.
Liability and Indemnity
19. We give no warranty as to the functionality of the Service other than as set out in any written documentation we provide to you. To the extent allowed at law, we disclaim and exclude all conditions and warranties, expressed or implied (including any rights and remedies) imposed or conferred by statute, common law, equity, trade custom or usage any other warranty in respect of the Service and provide the Service on an "as is" basis. We give no warranty as to the suitability of the Service for your needs or what results you may or may not obtain by using the Service.
20. We do not warrant that the supply of the Service will be provided or available on an uninterrupted basis including in respect of the online hosting and access to the Services (which is beyond our direct control). We are not liable for any interruption to the Service other than if the Service is not available because of an application error with Oi! of more than 48 hours in any month (in which case we will reduce the Fee for that period by 15%).
21. Under no circumstances will we be liable to you for any amount for any consequential, contingent, special or indirect damages resulting from the loss of business, revenue or profit with respect to claims arising in connection to these terms including any act or omission by us in performing the Service or for a breach of contract or for negligence.
22. You agree that the Services are not goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption. Our maximum liability to you for a breach of these terms or a condition or warranty of supply (including a condition or warranty implied by the Trade Practices Act 1974 (TP Act) other than under section 69 of the same) is limited to (as we may decide):
22.1 in the case of goods, (i) the replacement of the goods or the supply of equivalent goods or the repair of the goods, or (ii) the payment of the cost of replacing the goods or of acquiring equivalent goods or of the cost of having the goods repaired; and
22.2 in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.
To the extent allowed by law, clause 22 will also apply to any supply we make to a consumer (as that term is defined in Section 4B of the TP Act).
23. Subject to clause 22, where you suffer any damages, loss, costs and expenses (damages) as the result partly of your own fault and partly of our fault then any damages which you are (despite these terms) at law able to recover from us are to be reduced to such extent as the court thinks just and equitable having regard to your contribution to the overall fault for such damages.
24. You indemnify us against any claim, action, damage, loss, liability or cost (including reasonable legal fees on a solicitor/client basis) which we may incur arising out of any breach by you of these terms or any negligence or wrongful act or omission by you.
Intellectual Property and Confidentiality
25. The Service consists of us providing you with a non-exclusive right to access and use Oi! on the following terms:
25.1 you may access and use Oi! online to create, manage and send emails until these terms are terminated or we suspend the Service;
25.2 you may only use Oi! for your own direct business purposes;
25.3 you must not sell, sub-license, time share, let or hire Oi! or use Oi! for the benefit of any other party or allow any other party to access or use Oi!.
26. You agree that you will not copy any Oi! template or any other feature or functionality from Oi! or the Service other than to use them for any purpose of sending emails under these terms.
27. We own all intellectual property rights, including but not limited to copyright, in Oi! and the Service and all our documents relating to the same.
28. You will not (directly or indirectly) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Service or Oi!
29. You acknowledge and agree that the Oi! and the name Rice Studios (and related graphics and designs and logos) are our trade marks (Marks). You are not authorised to use any of the Marks in any advertising, publicity or any other commercial manner without our prior written consent and your use of the Service does not give you any title or ownership in the Marks.
30. For every email sent via the Service, you agree that the Service may automatically add an identifying footer stating "Powered by Oi!" or a similar message.
31. We have no obligation to monitor the content provided by you or your use of the Service. However, we may monitor and remove any such content if we believe or it is alleged to breach these terms.
32. We will not use your customer list or any other customer information other than for the purposes of these terms and in providing the Service. We will not disclose your customer list or information unless required by law.
33. You may not assign your rights under these terms without our prior written consent. We may use third parties to provide any part of the Services without notifying you or obtaining your consent.
34. These Terms can only be amended by agreement in writing. We can only waive any of our rights under these terms by written notice to you.
35. You must pay us all our costs (on a solicitor/client basis) incurred in the recovery of monies owing by you or in otherwise enforcing our rights against you under these terms.
36. These terms are governed by the law of Victoria (Australia) and any dispute arising in connection with these terms is subject to the exclusive jurisdiction of the courts of Victoria and the Federal Court of Australia (Melbourne Registry).
37. Clauses 19 to 24 and clause 28 survive the termination of these terms.
38. In this terms:
38.1 singular includes plural and vice versa;
38.2 reference to a person includes a body politic or corporate, an individual and a partnership and vice versa;
38.3 no rule of construction applies to our disadvantage because we put forward these terms; and
38.4 if a provision of these terms would, but for this clause, be unenforceable:
38.4.1 the provision must be read down to the extent necessary to avoid that result;
38.4.2 if the provision cannot be read down to that extent, it must be severed without affecting the validity and enforceability of the remainder of these terms.
Version 1: Effective Date 18 October 2006