1. ACCEPTANCE OF TERMS

1.1 Unless otherwise agreed in writing, the supply of all Services offered by AVANSER and/or its associates, related parties, successors and assigns (collectively referred to as “AVANSER”) to any persons (hereinafter referred to as “User”, “you” or “your”) shall be governed by the Terms & Conditions of Service (TCS) set herein.

1.2 This TCS is supplementary to the Website General Terms & Conditions, which govern the access and use of the Website, and all provisions are incorporated into the General Terms & Conditions by this reference. By using the Services described herein, you hereby acknowledge and agree to be bound by this TCS and the General Terms & Conditions.

2. DEFINITIONS

2.1 In these Terms & Conditions of Service (“TCS”), the following terms and expressions shall have the following meanings:

3. Provision of Services

3.1 In supplying the Services, AVANSER shall provide the following:

  1. a Phone Number through which the Services shall be utilised and which forms part of the Network of the Carrier;
  2. equipment required for handling and managing the Services which AVANSER in its sole discretion considers appropriate and necessary; and
  3. reasonable technical and sales support which AVANSER in its sole discretion shall consider appropriate and necessary.

3.2 Unless explicitly stated otherwise, any new services, features, content or applications offered or made available from time to time by AVANSER to you shall be subject to this TCS.

4. Your Obligations

4.1 In using the Services, you expressly agree and acknowledge that:

  1. the Phone Number provided is made available to you only in connection with the supply of Services by AVANSER, and forms part of the Services so supplied;
  2. accordingly:
    1. you are not entitled to, and you have no right or interest in, any Phone Numbers supplied by AVANSER to you if you decide to terminate the Services herein;
    2. you must not port any Phone Numbers supplied by AVANSER to an alternative service provider or Carrier or Network without the prior written consent of AVANSER. You hereby acknowledge and agree that AVANSER shall be entitled to receive compensation from you of an amount to be determined by AVANSER in its sole and exclusive discretion should AVANSER agree to grant consent to you in respect of the aforesaid porting;
    3. AVANSER may, without any notice or liability to you, discontinue or modify any Phone Numbers supplied to you at any time for any reason whatsoever, including but not limited to discontinuance or modification required by reason of a request made by the Carrier, Network requirements or statutory, regulatory and legal compliance. You hereby acknowledge and agree that:
      1. you must, unless this TCS is terminated in accordance with Clause 7, accept any such new or modified Phone Numbers issued to you by AVANSER and that AVANSER shall, but is not obliged to, give you written notice of any the discontinuance of, or modifications made to, a Phone Number as soon as is reasonably practicable; and
      2. you have no claim against AVANSER for any loss or damage you may suffer as a result of such discontinuance or modifications.
  3. AVANSER may from time to time, change, enhance or update any and all equipment described in Clause 3.1(b) for any reason whatsoever without any notice or liability to you. You hereby acknowledge and agree that you have no claim against AVANSER for any loss or damage you may suffer as a result of such change, enhancement or update.

4.2 You further acknowledge, agree and warrant that:

  1. you will refrain from taking any action which has or is likely to have the effect of interfering with or threatening the operation, stability, viability or integrity of the Network;
  2. you must only use the Services for your own business needs and requirements;
  3. you must not use the Services for your personal purposes nor for any purposes which are unlawful, abusive, harmful, threatening, defamatory or in any way infringing any copyright, trademark or other intellectual property rights of any other persons;
  4. you must not re-supply, re-sell, chain or group the Services in any way without the prior written consent of AVANSER;
  5. you are fully responsible for maintaining the confidentiality of your Services password and account issued to you by AVANSER, and are fully responsible for all activities the occur under the same. Accordingly, you must:
    • (i) immediately notify AVANSER of any unauthorised use of your password or account or any other breach of security; and
    • (ii) ensure that you exit from your account at the end of each session;
    • AVANSER will not be liable to you for any loss or damage you may suffer if a person quoting your password requests changes to your Service or account details. You will be responsible for all fees associated with your Service and account whether transactions were authorised by you or not.
  6. you must co-operate with AVANSER in relation to any complaints, enquiries or investigations into or in connection with any services offered by you, in which the Services supplied by AVANSER are utilised. You hereby agree and acknowledge that you shall, at AVANSER’s discretion, and without limitation, bear in full any costs associated with such complaints, enquiries or investigations.

4.3 You also agree that you must ensure that any other persons having access to, or are using, the Services, including your employee, contractor, officer, agent, authorised representative or other third party, shall be made aware of and will observe the same restrictions as described under Clauses 4.1 and 4.2 above.

5. Call Recordings and Personal Information

5.1 As part of the process of supplying the Call Recording Service to you or in any other Services supplied to you where Recordings are, at your option, made by us, whenever a Calling Party dials your Phone Number:

  1. you are requesting AVANSER to initiate an Incoming Call Recording. Once initiated, AVANSER will record the full length of the Incoming Call; and
  2. you are requesting AVANSER to collect or compile Personal Information in respect of the Calling Party.

5.2 In using the Call Recording Service or any other Services where Recordings are, at your option, made by us, you expressly agree and acknowledge that:

6. Billing and Payment

6.1 You will be charged in accordance with the rate schedule published or notified by AVANSER from time to time. AVANSER reserves the right to change the rates from time to time. All Charges are exclusive of GST.

6.2 You shall pay any and all amounts invoiced by AVANSER to you in relation to the provision of Services by the due date specified in any such invoice. Without limiting any other rights AVANSER may have under this TCS or by force of law or equity, if you fail to make full payment of the aforesaid by the due date, AVANSER may:

6.3 You hereby acknowledge and agree that you are not entitled to set off or deduct any amounts due and owing by you under this TCS, whether or not an existing dispute or claim has been made by you against AVANSER or for any reason whatsoever.

7. Term and Termination

7.1 This Agreement shall continue until terminated.

7.2 This Agreement will immediately and automatically terminate if AVANSER’s right to provide the Services ceases for any reason.

7.3 AVANSER may immediately suspend or discontinue the provision of the Services to you, or terminate this Service Agreement with immediate effect by giving notice to you at any time if, in AVANSER’s reasonable opinion:

7.4 Either party may terminate this agreement with 30 days advance notice in writing.

8. Intellectual Property

8.1 For the purposes of this TCS, “Works” mean any and all proprietary materials and information embodied in, or relating to, the Services, including:

8.2 You hereby acknowledge and agree that:

9. Confidentiality

9.1 AVANSER will at all times maintain as confidential, Confidential Information, meaning all Works, technical and business information and associated matter now in your possession and control or which may exist in the future including but without limitation data, reports, studies and customer information. Confidential Information shall not include information which is generally available in the public domain or was known by AVANSER prior to the disclosure by you or by your employees, representatives or associates.

9.2 Unless expressly stated otherwise in this TCS or in any other terms of service as may be specified by AVANSER in respect of the provision of any service, or unless prohibited by any laws or regulations, all Data resulting from the provision of the Services may be used for AVANSER’s own internal research and record keeping purposes and whilst respecting the confidentiality of such Data, AVANSER may extrapolate and use the Data for the aforesaid purposes.

10. Status of User

10.1 In using the Services, you acknowledge and agree that:

11. Compliance with Laws

11.1 You will at all times comply with the provisions of all laws to your use of the Services and any Recording, including without limitation the Telecommunications Act 1997 (Cth), Privacy Act 1988 (Cth), and the Telecommunications (Interception) Act 1979 (Cth) and all regulations or guidelines promulgated thereunder. In particular, you are solely responsible for giving the Calling Parties any necessary warning about the presence of any Recordings made of an Incoming Call and the use or uses that will be made of the same.

11.2 AVANSER shall have no obligation to advise you upon compliance with any such laws. You shall indemnify and keep indemnified AVANSER from and against any liability arising from any claim that your use of the Service and/or a Recording breaches any law.

12. Limitation of Liability and Indemnity

12.1 In the event that this TCS ­­­­­constitutes a supply of services by AVANSER to a person as defined in the Competition and Consumer Act 2010 (Cth), (“the Act”), to the fullest extent permitted by law, all conditions, warranties, representations, liabilities and obligations, whether expressed or implied, including any conditions or warranties as to merchantability, fitness for purpose or correspondence with description or representations as to results arising from the use of the Services, are hereby excluded by AVANSER.

12.2 AVANSER shall not be liable, under any circumstances, for your indirect, special, incidental or consequential loss or damage that may arise in respect of this TCS or loss of profit, business, revenue, goodwill or anticipated savings, and AVANSER’s liability under this TCS shall be limited solely to the supplying of the Services again or the payment of the cost of having the Services supplied again, as AVANSER may select.

12.3 You shall indemnify AVANSER against all claims, demands, liabilities, loss, expenses, costs and damages incurred by or made against you, as a result of, or arising in connection with, any breach of your obligations under this TCS, including, without limitation, any failure to comply with Clauses 5.2(b)(ii), 5.2(d) and 5.2(e) in respect of Incoming Call Recordings and Personal Information.

13. General

13.1 AVANSER may, from time to time, make reasonable variations to this TCS if necessary to comply with any contractual, statutory or a regulatory requirement.

13.2 This TCS contains the entire understanding and agreement between the parties as to its subject matter. No oral explanation or information provided by any party to another shall affect the meaning or interpretation of this agreement or constitute any collateral agreement, warranty or understanding between the parties.

14. Applicable Law

14.1 The laws of the state of New South Wales govern this TCS and the parties agree to submit to the jurisdiction of New South Wales courts and tribunals.

15. Waiver and Severability of Terms

15.1 The failure of AVANSER to exercise or enforce any right or provision of this TCS shall not constitute a waiver of such right or provision.

15.2 If any provision of this TCS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this TCS remain in full force and effect.