IMPORTANT INFORMATION
These Terms of Use constitute a legally binding contract between messmo Pty Ltd (messmo) and the person (Subscriber) who accepts and subscribes to these Terms of Use.
By clicking the ACCEPT option on your mobile handset, or by accessing any part of the www.messmo.com or wap.messmo.com website (Website), the Subscriber is deemed to have accepted and subscribed unconditionally to these Terms of Use. Subscriber agrees that these Terms of Use constitute a document in writing signed by Subscriber under applicable laws and regulations. Subscriber is encouraged to print out or save a copy of these Terms of Use for future reference.
These Terms of Use govern Subscriber’s rights and obligations in respect of its access to and use of the Website and messmo’s proprietary, mobile internet, software technology platform (messmo® Platform). Subscriber’s acceptance of and strict compliance with these Terms of Use is a prerequisite to and fundamental condition of its access to and use of the Website and the messmo® Platform.
If Subscriber does not agree to be bound by these Terms of Use he/she must cease immediately all further use of the Website and the messmo® Platform.
ELIGIBILITY – CHILDREN UNDER 18.
messmo will only knowingly provide products or services to persons who can lawfully enter into and form contracts under applicable law.
If you are under the age of 18, but at least 13 years of age, you may order products or services only under the supervision of a parent or legal guardian who agrees to be bound by these Terms of Use.
Children under the age of 13 may view the Website but may not order products or services.
In consideration of the promises and obligations given and assumed herein, and intending to be legally bound, these Terms of Use provide as follows.
1. Definitions and Interpretation
In these Terms of Use, unless the context indicates a contrary intention:
Intellectual Property Rights means all industrial, commercial and intellectual property rights (including equivalent, neighbouring or proximate rights anywhere in the world that currently exist or are recognised in the future).
A person means any form of legal entity as well as any quasi-legal entity.
A reference to any document, material, information or data includes that document, material, information and data howsoever stored, recorded or embodied, including in any electronic or digital media or otherwise.
The word includes in any form is not a word of limitation.
2. Term
These Terms of Use remain in force until terminated by either party in accordance with clause 9 (Term).
3. Subscriber’s Obligations
3.1 Responsibilities Subscriber is and shall be wholly and exclusively responsible, at its own cost, for:
(a) all ancillary and collateral telecommunications equipment, hardware and software necessary to access and use the Website and/or the messmo® Platform;
(b) the use that it makes of the Website and the messmo® Platform, including any messages, data, information, graphics or other media that Subscriber sends or transmits (including all costs and charges imposed by any carrier or service provider in connection with receiving, sending or transmitting such messages, data, information, graphics or other media);
(c) complying with all laws, regulations and rules in the Subscriber’s country or jurisdiction; and
(d) complying with any recommendations or guidelines issued by messmo with respect to the use of the Website and/or the messmo® Platform, including any adjustments or replacements required in respect of collateral or ancillary equipment or software.
3.2 Restrictions on Subscriber
Subscriber shall not and has no right to either: (a) reproduce, publish, distribute, sub-license and/or resell either the Website and/or the messmo® Platform to any person; or
(b) use either the Website and/or the messmo® Platform to supply any service to any person; or
(c) modify, adapt, disassemble, decompile and/or reverse engineer either the Website and/or the messmo® Platform;
(d) access or use either the Website and/or the messmo® Platform to create, author, design, manufacture, market, publish, transmit, broadcast, distribute or sell any article, product, material or other matter that either: (i) infringes the rights of any person, including, without limitation, Intellectual Property Rights, trade secrets, rights of privacy and publicity, (ii) is libellous, defamatory or slanderous, (iii) condones, promotes, contains or links to adware, cracks, hacks or similar applications or programs, (iv) contains explicit sexual content, (v) does or may denigrate or offend any ethnic, racial, gender, religious or other group, through use of language, images, stereotypical depiction or otherwise, (vi) is designed to or does harass, threaten, defame or abuse others, (vii) exploits images or the likeness of minors, (viii) encourages the use of drugs or the under-age use of alcohol or cigarettes, or (ix) is generally offensive or in bad taste;
(e) (i) use "spam," "blast-faxes" or recorded telephone messages to market or sell any products or services, (ii) use, transfer or implant a virus, routine or any computer program or technology that disrupts, disables, interferes with or otherwise has a detrimental affect on the Website and/or the messmo® Platform, (iii) take any action that imposes any unreasonable or disproportionately large load on the Website or the messmo® Platform, (iv) use a robot, spider or other device or process to monitor the activity on or copy pages from the Website or the messmo® Platform, (v) collect electronic mail addresses or other information from other persons, (vi) impersonate another person or entity, (viii) engage in any activity that interferes with any person’s ability to use or access the Website and/or the messmo® Platform, or (ix) assist, procure or aid any person to engage in any activity prohibited by these Terms of Use; or
(f) frame or link or otherwise use or display the Website in such a manner so that it appears to be part of its own or someone else's website. Subscriber shall not deep link to any image on the Website.
Subscriber acknowledges and agrees that messmo may in its sole and unfettered discretion, unilaterally and without notice, terminate these Terms of Use, disable and deny access to the Subscriber to the Website and the messmo® Platform, and take legal action against any Subscriber who engages in any activity or conduct that is prohibited by these Terms of Use and/or by any relevant law, regulation or rule.
4. messmo's Obligations
4.1 Access to and use of the Website and messmo® Platform
Subject to Subscriber complying with and discharging each of its obligations under these Terms of Use, messmo shall allow Subscriber to access and use the Website and the messmo® Platform during the Term.
4.2 Privacy
The messmo Privacy Policy declaring its commitment to the Privacy Act 1988 (Cth) (Privacy Act) for a company that, while not required by law, has decided to opt in to requirements as detailed in the Privacy Act is available at http://www.privacy.gov.au.
messmo may collect personal data concerning the Subscriber in the course of and incidental to Subscriber’s use of the Website and the messmo® Platform. messmo shall comply with, and Subscriber hereby consents irrevocably and unconditionally to messmo’s collection, use and disclosure of such data in accordance with, its Privacy Policy (the terms of which may be accessed through the link on the Website).
4.3 Training
Subscriber acknowledges that messmo has no obligation to Subscriber to provide any training or other support in relation to the use or operation of the Website and/or the messmo® Platform.
4.4 Modifications
messmo reserves the right to modify the organization, structure, content or "look and feel" of the Website and/or the messmo® Platform, and may change, suspend, or discontinue any aspect of the Website and/or the messmo® Platform at any time without notice or any liability to Subscriber or any person. messmo shall have complete discretion over the features, functions and other terms and conditions on which the Website and the messmo® Platform is made available.
5. Intellectual Property Rights
5.1 Reservation of title
Subscriber acknowledges that these Terms of Use do not convey and that it derives no right, title or interest in or to any Intellectual Property Rights that vest or subsist in or relate to the Website and/or the messmo® Platform other than pursuant to the express authorisation set out in clause 4.1. For example and without limitation, messmo owns the trade marks MESSMO and the MESSMO logo, as well as the copyright and patent rights in and to the Website and the technology that is embodied in the messmo® Platform.
messmo grants Subscriber a limited revocable licence to access and use the Website and the messmo® Platform for its intended purposes, subject to Subscriber’s compliance with these Terms of Use. This licence does not include the right to collect or use information contained on the Website for purposes prohibited by messmo; to compete with messmo; to create derivative works based on the layout or design, look-and-feel, or structure of the Website; or download or copy the Website (other than page caching). If Subscriber uses the Website in a manner that exceeds the scope of this licence or if it breaches these Terms of Use, messmo may revoke the licence and deny access to and use of the Website and the messmo® Platform.
5.2 Prohibition on infringement
Subscriber acknowledges and agrees that messmo does not permit, authorise or condone and hereby expressly prohibits Subscriber from accessing or using the Website and/or the messmo® Platform in a manner that infringes, or is likely to infringe, the Intellectual Property Rights, or any other rights or privileges, of any person anywhere in the world.
5.3 Feedback, suggestions, comments or requests
Any feedback, suggestions, comments or requests (“comments”) may be made to info@messmo.com and if you do make comments, you acknowledge that: they will not be considered confidential or proprietary, and messmo is under no obligation to keep such information confidential, and messmo will have an unrestricted, irrevocable, world-wide, royalty free right to use, communicate, reproduce, publish, display, distribute and exploit such comments in any manner it chooses.
6. Activation
To use and install the messmo® Platform, Subscriber is required to activate its subscription by clicking the ACCEPT option on Subscriber’s mobile handset. Subscriber agrees that if during this process Subscriber is requested to enter Subscriber’s mobile number, that Subscriber shall provide a valid, operating mobile number that is capable of making and receiving mobile phone calls and which is registered to Subscriber. Subscriber has no right to use the messmo® Platform until it has provided, if requested, Subscriber’s said mobile number and messmo reserves the right to disconnect, disable and deny access to the Subscriber to the messmo® Platform in the event of Subscriber’s failure to comply with this clause 6. 7. Warranties
7.1 Subscriber’s warranties
Subscriber represents and warrants to messmo that, in its use of the Website and the messmo® Platform, it: (i) will not infringe the Intellectual Property Rights, trade secrets, rights of privacy, rights of publicity or other legal right of any person, and (ii) will comply with all applicable laws, rules, and regulations.
7.2 messmo’s warranties
messmo represents and warrants that it has the right to grant access to and license the use of the Website and the messmo® Platform to Subscriber subject to and in accordance with these Terms of Use.
7.3 Caveats
(a) messmo provides the Website and the messmo® Platform on an "as is" and "as available" basis. Nothing in these Terms of Use shall or may be construed as a representation or warranty by messmo that the functionality or operation of the Website and/or the messmo® Platform will: (i) be uninterrupted or free of errors and inaccuracies; (ii) meet Subscriber’s requirements; or (iii) operate in the configuration or with the hardware or software used by Subscriber. (b) Subscriber acknowledges and agrees that the Website and the messmo® Platform (as with technology generally), may have errors (or “bugs”) and may encounter unexpected problems. Accordingly, Subscriber may experience downtime and errors in the use or operation of the Website and/or the messmo® Platform.
(c) messmo does not and cannot control the transmission and/or receipt of communications, data and information across the internet and/or across telecommunication networks, and such transmission and receipt depends on the performance of persons and entities whose acts or omissions may produce situations in which the transmission and/or receipt of such communications, data and information may be denied, delayed, impaired, corrupted or disrupted and for which messmo is not liable.
(d) messmo does not warrant that any data, information or other content provided on the Website, whether concerning any goods or services or any other subject, is complete or accurate.
7.4 Exclusion of implied warranties
SUBJECT ONLY TO CLAUSE 8.1, ALL CONDITIONS, WARRANTIES, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE WEBSITE AND/OR THE messmo® PLATFORM (OR ANY OTHER GOODS OR SERVICES THAT MAY BE PROVIDED BY messmo), THAT WOULD OTHERWISE BE IMPLIED BY STATUTE, LAW, EQUITY, TRADE CUSTOM, PRIOR DEALINGS BETWEEN THE PARTIES OR OTHERWISE (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, SUITABILITY, FITNESS FOR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT) ARE HEREBY EXPRESSLY EXCLUDED.
7.5 No representation or reliance
(a) Subscriber acknowledges that neither messmo nor any person acting on messmo’s behalf has made any representation or other inducement to Subscriber to enter into these Terms of Use, except for representations or inducements expressly set out in these Terms of Use. (b) Subscriber acknowledges and confirms that it does not enter into these Terms of Use in reliance on any representation or other inducement by or on behalf of messmo, except for representations or inducements expressly set out in these Terms of Use.
8. Exclusion and Limitation of Liability
8.1 Subject to law
Nothing contained in these Terms of Use excludes, restricts, limits or modifies any:
(a) implied condition, warranty or other term of these Terms of Use where pursuant to applicable law to do so is unlawful or void; or
(b) liability in respect of a breach of these Terms of Use where pursuant to applicable law to do so is unlawful or void; or
(c) liability for fraud or deceit; or
(d) liability for death or personal injury caused by the negligence of either party.
8.2 Exclusion of liability
Subject only to Clause 8.1, in no event shall messmo be liable to Subscriber or to any person under or in connection with these Terms of Use or in respect of the use of (or failure or performance of) the Website and/or the messmo® Platform for:
(a) malfunctions, failures, defects, acts or omissions or any other default or liability caused directly or indirectly by:
(i) any third party;
(ii) actions of Subscriber that were not expressly authorised by messmo;
(iii) accident, misuse or abuse by anyone other than messmo;
(iv) alteration or modification of the Website and/or the messmo® Platform, or any component or part of the Website and/or the messmo® Platform, by anyone other than messmo;
(v) products (including any hardware or software) or services not licensed or supplied by messmo;
(vi) power surge or failure,
(vii) events of force majeure or events outside messmo’s actual control; or
(viii) any other condition not arising under normal operating conditions;
(b) any loss, cost, damage or expense of any nature arising or caused directly or indirectly by any breach of Subscriber’s obligations or responsibilities set out in these Terms of Use;
(c) any loss of profit, business interruption, loss of or damage to goodwill, and/or any expectation benefit;
(d) Subscriber’s liability to any person; or
(e) incidental, indirect, consequential, special, exemplary or punitive damages of any nature,
whether such liability is asserted on the basis of common or civil law or in equity, including pursuant to any statute, contract, tort (including negligence or strict liability) or otherwise and notwithstanding that messmo has been advised of the possibility of any particular loss or damage.
8.3 Links
messmo may, in its sole and unfettered discretion, and without Subscriber’s consent, place links on the Website to other websites that are owned or operated by other persons. Subscriber acknowledges and agrees that messmo is not responsible for the operation of or content located on any such website, and messmo cannot and does not warrant that the content of such websites is accurate, complete, legal and/or inoffensive. By choosing to link to these other websites, Subscriber acknowledges and agrees that it may not make any claim against messmo for any damages or losses of any kind arising from the other website and/or the link.
8.4 Limitation of liability
Subject to Clause 8.1, and except to the extent specifically excluded under Clause 8.2 or elsewhere in these Terms of Use, messmo’s sole liability to Subscriber for any and all breaches of any term or terms of these Terms of Use, whether express or implied, shall be limited to the substitution or replacement of any product or service that has been ordered and paid for by Subscriber using the Website.
8.5 Indemnity
Subscriber shall indemnify and save harmless and hereby releases unconditionally messmo, without set off or adjustment, against and from any liability, loss, cost, expense or damage, including all legal fees, arising from or relating to: (a) its use of the Website and/or the messmo® Platform and/or any messages, data, information, graphics or other media that Subscriber sends or transmits, including any alleged or actual violation of any law directly or indirectly arising from such use; (b) any breach or alleged breach by it of these Terms of Use; and (c) any infringement or alleged infringement by Subscriber of any person’s Intellectual Property Rights, rights of privacy or publication, or otherwise anywhere in the world.
9. Termination
9.1 Termination
(a) At any time and with or without cause, messmo may immediately terminate either these Terms of Use or any or all rights and privileges granted to Subscriber hereunder, including suspending Subscriber’s access to and/or use of the Website and/or the messmo® Platform. In no event shall any such termination or suspension by messmo relieve Subscriber of any obligation that has accrued under these Terms of Use prior to the date of such termination or suspension.
(b) Subscriber may terminate these Terms of Use at any time upon written notice to messmo. In no event shall any such termination by Subscriber relieve Subscriber of any obligation that has accrued under these Terms of Use prior to the date of such termination.
9.2 Effect of termination
(a) On any expiry or termination of these Terms of Use, messmo may disable and deny access to the Subscriber to the Website and the messmo® Platform and messmo shall have no liability to Subscriber or any person for doing so.
(b) The expiry or termination of these Terms of Use shall not prejudice or affect any cause of action, right, remedy or defence which shall have accrued or shall thereafter accrue to either party.
10. General
10.1 Severability
If a clause or any part of any clause of these Terms of Use or a right or remedy of a party under these Terms of Use, is found to be void, invalid or unenforceable by any court or tribunal having jurisdiction in respect of these Terms of Use, then:
(a) it shall be read down or severed in that jurisdiction only to the extent that it is void, invalid or unenforceable; and
(b) it does not effect the validity or enforceability of that term or clause in another jurisdiction or the remaining terms or clauses in any jurisdiction.
10.2 Variation
messmo may amend unilaterally these Terms of Use in its sole and unfettered discretion at any time, and Subscriber hereby agrees to abide by and be fully bound by such amended terms. The amended terms shall be effective automatically and immediately once they are posted on the Website, and Subscriber’s continued use of the Website and the messmo® Platform on or after such effective time constitutes its unequivocal and unconditional acceptance of the amended terms. These Terms of Use may not be otherwise amended. If Subscriber does not agree to any amendments to these Terms of Use or to any of the current terms, its only right and remedy is to cease using the Website and the messmo® Platform.
10.3 Waiver
A waiver, consent, election or acquiescence given by a party under these Terms of Use is only effective and binding on that party if it is given or confirmed in writing by that party.
10.4 Assignment
(a) messmo may at any time transfer, assign, novate or otherwise dispose of any or all of its rights or obligations under these Terms of Use on giving Subscriber no less than five (5) days notice in writing.
(b) Subscriber may not assign, novate, sub-contract, outsource or otherwise transfer or dispose of its rights and obligations under these Terms of Use without the prior written consent of messmo.
10.5 Entire Contract
To the extent permitted by law, in relation to its subject matter, these Terms of Use:
(a) embody and constitute the entire legal and contractual relationship of the parties, including the entire terms agreed by the parties; and
(b) supersede, replace and terminate by mutual consent any prior written or oral representations, negotiations, understandings, agreements or contracts between the parties.
10.6 Governing Law and Jurisdiction
(a) These Terms of Use shall be governed by and construed in accordance with the law in force for the time being in Queensland, Australia (without regard to its conflict of law rules).
(b) Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland, and the courts competent to determine appeals from those courts, with respect to any proceedings that may be brought at any time relating to these Terms of Use. |
