By using the Lead Cleansing Service you agree to the following terms and conditions.
RECITALS
Customer engages Noojee Telephony Solutions (NTS) to provide Services on the following terms and conditions.
OPERATIVE PART
Definitions
In this Agreement unless the context otherwise requires:
1. Agreement means this agreement, its recitals, clauses and any schedule of this agreement.
2. Clause means a clause of this Agreement.
3. Confidential Information includes, without limitation, NTS’s information which relates to: the personnel, policies or business strategies of NTS; the terms upon which the Services is offered pursuant this Agreement.
4. Force Majeure means an act, omission or circumstance over which NTS could not have reasonably exercised control.
5. Party means a party to this Agreement and its successors, trustees and permitted assigns.
6. Services means lead cleansing services supplied to Customer by NTS from time to time.
7. Sub-clause means a sub-clause of this Agreement. Items appearing in bold type in the Schedules shall be interpreted as defined terms.
Interpretation
In the interpretation of this Agreement unless the context otherwise requires:
1. Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.
2. Words denoting the singular number shall include the plural number and vice versa.
3. Words denoting any gender shall include all other genders.
4. A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same.
5. Money references are references to Australian currency.
6. Headings used in this Agreement are for convenience and ease of reference only, and are not part of this Agreement and shall not be relevant or affect the meaning or interpretation of this Agreement.
7. Every obligation, covenant, agreement, condition express or implied in this Agreement and entered into by more than one party shall bind them jointly and each of them severally. No remedy, expressly granted to NTS excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to NTS.
8. This Agreement may not be construed adversely to NTS simply because NTS prepared the Agreement.
9. If any provision or part provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision or part provision which shall be deemed deleted.
10. The recitals, clauses and any schedule to this Agreement form part of this Agreement and shall be read in the following order of precedence:
11. the recitals and clauses of this Agreement; and thereafter in the order specified in the schedules, if any.
Service
Noojee Telephony Solutions (NTS) offers a subscription based Call Scrubbing service which is designed to identify disconnected telephone numbers within large batches of numbers. Subscribers of the service submit lists of telephone numbers and potentially associated data to the Call Scrubbing service for processing. Subscribers submit the 'batches' of telephone numbers via NTS' web site for processing. NTS processes the supplied numbers using an automated system which may take days or weeks to process the supplied numbers. The duration is dependent on the quantity and quality of numbers submitted as well as the system load which may vary from time to time. NTS email a report and list of cleansed numbers for that given day as well as a summary of the remaining subscription credit. The report is emailed at around 10:00pm AEST each night. The cleansing process is only run during business hours. NTS may offer potential subscribers a free trial of the service. Trial subscribers are subject to the same terms and conditions as standard subscribers. NTS undertake reasonable efforts to ensure the quality of the data supplied. The subscriber should however expect that the data will on average contain a 2% error rate.
DNC Compliance
NTS have consulted with the Australian Communications and Media Authority and have been given the following guidance with respect to DNC compliance.
1. The Call Scrubbing process does NOT wash your leads as per the DNC legislation.
2. The process of Call Scrubbing does not come under the DNC legislation and as such numbers do not need to be washed prior to being cleansed.
3. It should however be noted that the you as a telemarketer may come under the DNC legislation and as such may need to wash the numbers as per the DNC legislation before you make any calls.
Fees
Customer shall pay NTS its Fees in the manner and rates as specified in Schedule 1 without withholding, deduction or offset of any amounts for any purpose. Unless expressly stated to the contrary, Fees are exclusive of all taxes, duties, fees or other government levies or charges, including without limitation any GST, stamp duty or otherwise, which may be imposed on or in respect of the Services provided under this Agreement or otherwise. Such taxes, duties, fees or other government charges shall to the extent permissible by law be paid by Customer to NTS. Customer shall pay NTS interest at the Penalty Interest Rate on all overdue amounts from the due date until payment is made. If any payment owing to NTS is not made within seven (7) days of the due date, NTS may, without further notice to Customer, suspend further services or its remaining obligations to Customer under this Agreement.
Confidential Information
Each Party acknowledges the confidential nature of the Confidential Information. Each Party hereby agrees to ensure that the Confidential Information is kept confidential. Each Party shall not directly or indirectly divulge or communicate or otherwise disclose the Confidential Information, in whole or part to any third party and each party shall make no use of any of the Confidential Information without the express written consent of the other Party. Each Party shall take all necessary precautions to prevent any disclosure of the Confidential Information to unauthorised third parties and shall inform the other party of any suspected or actual disclosure of the Confidential Information. Each Party shall not remove or cause to be removed from the other parties, its clients’ or its business partners’ premises any Confidential Information without prior written consent from of the other Party. NTS will only use the supplied Confidential Information for the purpose of cleansing the supplied numbers. NTS may retain copies of the Confidential Information for the sole purpose of operating the cleansing service. Any associated data submitted with the telephone numbers will be discarded once a submitted batch has completed. The subscriber undertakes to not supply details of the disconnected numbers to a third party without the express permission of NTS. This list of disconnected numbers is to be treated as NTS' confidential information which is supplied solely to the Subscriber for the sole purpose of avoiding the calling disconnected numbers and/or confirming that a telephone number is disconnected.
Restraint Period
During the Restraint Period, each Party shall not solicit for employment, whether directly or indirectly through an associated or subsidiary company or otherwise, any person who is or was employed or contracted by the other Party during the term of this Agreement. Each Party shall promptly advise the other Party if a person who is or was employed or contracted by the other Party seeks to be employed or contracted by first Party prior to the expiration of the Restraint Period.
Limited Warranty
NTS shall supply Services with all due care and skill. NTS shall re-supply any Services which are not supplied in accordance with the Services clause provided that Customer notifies NTS of same in writing within 30 days of the supply of Services. This remedy shall be Customer’s sole and exclusive remedy for breach of this Agreement or any other cause of action against NTS.
Exclusions and Limitation of Liability
To the extent permitted by law and except as expressly provided to the contrary in this Agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this Agreement or to this Agreement generally, are excluded. Where legislation implies in this Agreement any condition or warranty and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or the exercise of or liability under such term, such term shall be deemed to be included in this Agreement. However, the liability of NTS for any breach of such term shall be limited, at the option of NTS, to any one or more of the following: if the breach related to goods: the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and if the breach relates to services the supplying of the services again; or refunding the fee associated with supplying the services. The Customer enters this agreement on the understanding that the data will have on average a 2% error rate. Error rates of up to 3% are considered a normal supply of service. To the extent permitted by law and except as expressly provided to the contrary in this Agreement, NTS shall not be under any liability (contractual, tortious or otherwise) to Customer [exceeding the value of goods and services supplied pursuant to this Agreement] in respect of any loss or damage (including, without limitation, consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect to the supply of goods or services pursuant to this Agreement or the act, failure or omission of NTS.
Customer warrants that it has not relied on any representation made by NTS or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material produced by NTS. Indemnity To the extent permitted by law, Customer shall fully indemnify and keep indemnified NTS, its officers, employees and agents, against any loss, costs, expenses, demands, taxes or liability whether direct or indirect arising out of a breach of this agreement by Customer or any wilful, unlawful or negligent act or omission of Customer.
Termination
Without limiting the generality of any other clause in this Agreement, NTS may terminate this Agreement immediately by notice in writing if: any payment due from Customer to pursuant to this Agreement remains unpaid for a period of fourteen (14) days; Customer breaches any Clause and such breach is not remedied within fourteen (14) days of written notice by NTS; or Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; Customer being a natural person, dies; or Customer ceases or threatens to cease conducting its business in the normal manner. NTS gives the Customer immediate notice that the service will be terminated. NTS gives the Customer immediate notice that their subscription will be terminated. NTS may at its sole discretion terminate the subscribers service. If the service is terminated by NTS then If notice is given to Customer pursuant to Sub-clause 12.1 NTS may, in addition to terminating this Agreement: retain any moneys paid; refund the subscriber any unused and unexpired units at the unit price paid by the subscriber at the time of purchase and with in 30 days of giving notice of the termination. be regarded as discharged from any further obligations under this Agreement; and pursue any additional or alternative remedies provided by law. The Customer may terminate the agreement immediately by notice in writing if: 1.If the supplied data has a error rate of greater than 5%. If notice is given to NTS pursuant to the Termination Clause NTS may: charge a reasonable sum for work performed in respect of which work no sum has been previously charged; be regarded as discharged from any further obligations under this Agreement Survival The provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.
Force Majeure
NTS shall not be liable for any delay or failure to perform its obligations if such a failure or delay is due to Force Majeure.
Assignment, Novation and Sub-Contracts
NTS may sub-contract for the performance or part performance of this Agreement, however in such circumstances, NTS remains fully liable to Customer pursuant to this Agreement. This Agreement shall not be dealt with in any way by Customer (whether by assignment, novation, sub-licensing or otherwise) without NTS's written consent.
Waiver
No right of NTS under this Agreement shall be deemed to be waived except by notice in writing signed by NTS. Such a waiver by NTS shall not prejudice its rights in respect of any subsequent breach of this Agreement by Customer. Any express statement of a right of NTS under this Agreement is without prejudice to any other right of NTS expressly stated in this Agreement or arising at law. Governing Law This Agreement shall be governed by and construed according to the law of the State of Victoria. The parties irrevocably submit to the exclusive jurisdiction of the Courts of Victoria and Australia and any Courts hearing appeals from such Courts.
Notices
Notices under this Agreement may be delivered by hand, by mail or by facsimile to the addresses specified in Schedule 1. Notices shall be deemed given in the case of: hand delivery, upon written acknowledgement of receipt by an officer or other duly authorised employee, agent or representative of the receiving party; posting, three days after dispatch; and facsimile, upon completion of transmission.
Entire Agreement
This Agreement constitutes the entire agreement between the parties for the subject matter referred to in this Agreement. Any prior arrangements, agreements, representations or undertakings are superseded. This Agreement is not to be construed as creating a joint venture, partnership or agency situation between the parties and neither party may represent such. Under no circumstances may any party obligate or bind the other party to any agreements, arrangements, contracts or understanding or represent that they have such authority.
Schedule 1
General Contract Details
Fees
Subscribers purchase 'cleansing units'. Purchased cleansing units are valid for 12 months from the date of purchase. Subscribers may top up their subscription account at any point in time. Subscriptions are non-refundable except under the circumstances laid out in this document. The cost of cleansing units may vary from time to time. NTS will notify the subscriber at the point of purchase of the current unit prices. Subscriptions are on a prepaid basis. A subscriber purchase a subscription level which includes a defined quantity of units. A subscriber may then submit phone numbers for cleansing. The quantity of units consumed by each call depends on the call type.
The rates are published on our website and may be updated from time to time. You can vary the current rates here.
NTS may vary the quantity of units consumed from time to time. Any variation will only apply to new subscriptions, existing subscriptions will be processed at the old rate until exhausted or expired. NTS may at its sole discretion choose to refund any unused and unexpired subscription at the point in time a change in unit consumption occurs.
Business Days Any day except Saturday, Sunday or a public holiday as gazetted by the Victorian Government. Business Hours Between 0800 hours and 1800 hours AEST (GMT + 10) on Business Days.
Restraint Period
The period commencing on the Commencement Date and expiring six (24) months after the termination of this Agreement.