 |
THIS IS A BINDING
AGREEMENT between Mobux Pty Ltd ABN 41 114 656 254
(Mobux) of 7/50 Reservoir St, Surry Hills 2010, NSW, Australia and any person (you) who
completes the registration form on Mobux's website at
[http://www.mobux.com.au] (Website) for access to the
Mobux Services. Your use or purchase of any of the Mobux Services is
subject to your agreement to the terms and conditions set out below and
payment of any applicable fees.
1. MOBUX SERVICES
1.1
Description of Mobux Services. Mobux provides:
(a) the electronic distribution of:
(i)
personal identification numbers (PIN) for the activation
of mobile phone credits with telecommunications carriage service providers
(CSP) in Australia;
(ii) promotional mobile phone recharge vouchers;
and
(iii) mobile phone content; and
(b) access to members-only or
restricted areas of the Website, (Mobux Services).
1.2 Access to Mobux Services. This contract is
void where prohibited by law. You must be at least 18 years of age to
purchase, use or access the Mobux Services, or have the permission of a
parent, guardian or adult over the age of 18 who is the bill payer of the
credit card used for payment under clause 7.2.
1.3 Carriage Services. To use and access the Mobux
Services, you must have access to a mobile phone handset and an account
for the provision of mobile phone carriage services (Carriage
Services) with a CSP in Australia. Your CSP (and not Mobux) is
responsible for the provision of Carriage Services pursuant to any
agreement between you and that CSP in respect of those Carriage Services.
1.4 No guarantee of access. You acknowledge and agree
that to the extent possible under the law, Mobux makes no representations,
warranties or guarantees in relation to the availability, continuity,
reliability, accuracy, currency or security of the PIN, Website or any
Carriage Services. Mobux will not be liable if the Website or any
information obtained in relation to the PIN is inaccurate, outdated or
incorrect, or if the Website or the Carriage Services are unavailable for
any reason, including directly or indirectly as a result of:
(a)
telecommunications unavailability, interruption, delay, bottleneck,
failure or fault;
(b) negligent, malicious or wilful acts or omissions
of third parties (including Mobux's third party service providers);
(c) maintenance or repairs carried out by Mobux or any third party
service provider in respect of any of the systems used in connection with
the provision of the PIN, the Website or any of the Carriage Services;
(d) any events beyond Mobux's reasonable control; or
(e) services
provided by third parties ceasing or becoming unavailable.
2. POINTS PROGRAM
2.1 The mobux Loyalty Rewads
Program has no enrolment or annual fee.
2.2 Points accrued in the program have no monetary value.
2.3 Points are non-transferrable and expire six months from the date they are awarded.
2.4 Rewards points are earned for the following activity:
(a) For each and every purchase. The number of rewards points awarded will reflect the retail value of the product.
(b) By referring a friend via mobux.com.au, if the friend then goes on to register and make a purchase at mobux.com.au
(c) By participating in activity with specially marked advertisements
2.5 Points can be redeemed on any future purchase only at mobux.com.au
2.6 Points automatically accumulate in your account and can be redeemed any time at your request.
2.7 Any time you elect to redeem your points, 100% of the earned points in your account are credited
against your purchase. Partial point crediting is only allowed if the number of available points exceeds
the total purchase price.
2.8 Points will not be awarded in relation to any products or services that are cancelled, refunded or
returned. mobux may cancel or deduct any points that have been awarded in relation to cancelled, refunded
or returned products or services.
2.9 mobux reserves the right to reverse or cancel any points credited to a Member incorrectly, or not
in accordance with, or in breach of, the Terms and Conditions at any time.
2.10 When membership is terminated the points are forfeited.
2.11 If, for any reason, we cancel any account (including because of your death, bankruptcy or
insolvency), any points accrued in your account will be forfeited.
2.12 Accounts with no activity for 12 consecutive months may forfeit the balance of all rewads points.
2.13 The program is intended to be a service provided to an individual, not a company. It is therefore
considered fraudulent and abusive for any individual company to direct, encourage or allow a Corporate CM or
other individuals to use a single Corporate account for the purpose of accumulating Prepaid Rewards points.
2.14 Once accrued, points in your program account have been applied to a purchase, the points cannot
be converted back into your account.
3. FORMATION OF ORDERS
3.1 You may submit order
forms on the Website for the use or purchase of certain Mobux Services
(Order).
3.2 When you submit an Order and that Order
is accepted by Mobux, that Order will: (a) constitute a separate agreement
between Mobux and you for the provision of the services specified in that
Order in accordance with any terms and conditions of that Order; and (b)
incorporate the terms and conditions of this agreement.
3.3 To the
extent of any inconsistency between the terms and conditions of this
agreement and the contents of any Order, the terms and conditions of this
agreement will prevail.
4. YOUR RESPONSIBILITIES
4.1 Call
charges. You are responsible, and are solely liable, for any call
charges, account charges or other costs incurred in relation to the
Carriage Services, including without limitation the activation of any
Mobux Services using the Carriage Services.
4.2 Compliance
with CSP terms and conditions. You must comply with the terms and
conditions of or relating to the Carriage Services provided by your CSP
from time to time. You acknowledge and agree that failure to comply with
those terms and conditions may adversely affect your ability to activate
or use any or all of the Mobux Services.
4.3 Secrecy of
identification information. You must:
(a) ensure that any
data or personal or financial information provided or sent by you from, to
or via the Website (Data) is accurate and complete;
(b) maintain the secrecy and confidentiality of all identification and
login information required for your use of the Mobux Services or the
Carriage Services; and
(c) not disclose to any other person any
identification or login information, whether in use or not, relating to
the use of the Mobux Services or the Carriage Services. You are liable for
all charges, costs and claims resulting from the purchase or use of the
Mobux Services or the Carriage Services accessed through your
identification or login information, whether authorised by you or not.
4.4 Compliance. You must comply with any reasonable
directions of Mobux from time to time in relation to the use of the Mobux
Services. In addition, you must use the Mobux Services in good faith, and
must at all times comply with this agreement and all applicable laws,
statutes and regulations in all jurisdictions that relate to your use of
the Mobux Services, and any rules, directions, terms or conditions imposed
by your CSP.
5. LICENCE
5.1
Acknowledgement. You acknowledge and agree that Mobux, or
its applicable licensors, own all intellectual property rights comprised
in the Mobux Services (including any content comprised in the Mobux
Services).
5.2 Grant of licence. Subject to clause
8.4, Mobux grants you a limited, revocable, non-exclusive,
non-transferable licence to use for your own personal purposes the
Website, any Mobux Services for which you have submitted an Order, or any
content comprised in those Mobux Services, subject to the payment of any
applicable fees and the restrictions in clause 5.3.
5.3
Restrictions. You must not reproduce, adapt, modify,
sell, make available to others, communicate to the public, or commercially
exploit any Mobux Services or any content comprised in Mobux Services.
6. DATA PRIVACY AND SECURITY
6.1 You acknowledge
and agree that the Data may be stored, processed, used, reproduced,
distributed and disclosed in accordance with the processing of payment and
the provision of the Mobux Services under this agreement, and may be
provided to Mobux's third party service providers in Australia and
overseas. You further acknowledge that as telecommunications networks and
computer servers are, by their nature, vulnerable to third party attack
and interference, Mobux cannot guarantee that the Data will at all times
be secure and accessible.
6.2 By ticking the box marked 'A' below, you
consent to:
(a) Mobux disclosing your personal information to third
parties (Partners) for promotional or direct marketing purposes; and
(b) Mobux and any Partners using your personal information for
promotional or direct marketing purposes.
7. RESTRICTIONS ON USE OF WEBSITE
7.1
Disruption of Website. You must not, directly or
indirectly, introduce or permit the introduction of, any virus, worm,
trojan or other malicious code into the Website, or in any other manner
whatsoever corrupt, degrade or disrupt the Website or any Mobux Services.
7.2 Unlawful, unauthorised or dangerous use. You
must not (nor permit a third party to) submit any Data to the Website, or
otherwise use the Mobux Services:
(a) to engage in any activity which
breaches any law, infringes a third party's rights, or in a manner which
interferes with the rights of any other person;
(b) to infringe the
intellectual property rights (including trade marks and copyright) of
Mobux or any third party;
(c) in any way that is defamatory, obscene,
misleading or deceptive or otherwise illegal;
(d) in any way that
constitutes misuse, or resale or other commercial use, of the Mobux
Services or any associated materials.
7.3 Misuse of Mobux
Services. Without limiting clause 7.2, you must not use the Mobux
Services for any purpose other than as described under this agreement.
8. FEE AND PAYMENT
8.1 Fee. You
will pay the fee for the Mobux Services as set out in the applicable Order
or Mobux's then current price lists (as available on the Website) in
accordance with clause 8.2. Mobux may amend its price lists from time to
time without notice to you.
8.2 Payment method. You
must pay the fee using:
(a) a credit card issued by a bank in
Australia and displayed on the Website as a Mobux accepted credit card;
and by providing the corresponding payment details for your chosen payment
method on the relevant order form.
8.3 No liability for
delay. You acknowledge and agree that Mobux has no liability for
any delay caused by your failure to ensure that your credit card, BPAY or
PayPal accounts have sufficient funds available to meet the payment of the
fee at the time of payment.
8.4 Payment precondition of
access. You agree that payment to Mobux of the fee in accordance
with clause 8.2 is a precondition of your right to use the Mobux Services
under an Order or this agreement, and Mobux is under no obligation to
provide the relevant Mobux Services to you if you have not paid the
applicable fee.
8.5 No refunds. In the absence of any
calculation error by Mobux, you will not be entitled to any total or
partial refund or rebate of any fee after it has been paid.
8.6
GST. Unless otherwise stated in Mobux's invoice, the fees
payable by you must be increased by the amount of any GST that Mobux must
pay on the supply to you of the services, goods or other things Mobux
supplies under this agreement. You must pay the amount of that GST (in
addition to those fees) at the same time and in the same manner as those
fees are payable.
9. LIABILITY
9.1 Indemnity. You
will indemnify Mobux (and all its subsidiaries, employees and officers)
and hold those indemnified harmless against all loss, actions,
proceedings, cost and expenses (including legal fees), claims and damages
arising from any claim by a third party arising directly or indirectly out
of or in connection with your access to or use of the Website, the Mobux
Services or the Carriage Services.
9.2 Limitation and
exclusion. Subject to clauses 9.3 and 9.4, but notwithstanding
any other provision of this agreement, and to the maximum extent permitted
by law: (
a) Mobux's total cumulative liability under or in any way
connected with this agreement or the provision of the Mobux Services is
limited to the amount paid by you to Mobux for the Mobux Services under
the applicable Order;
(b) Mobux excludes all liability for loss of
revenue, loss of goodwill, loss of customers, loss of capital, downtime
costs, loss of profit, loss of or damage to reputation, loss under or in
relation to any other contract, loss of data, loss of use of data, loss of
anticipated savings or benefits, or any indirect, consequential or special
loss, damage, cost or expense or other claims for consequential
compensation, incurred by or awarded against you under or in any way
connected with this agreement or the provision of the PIN; and
(c) you
acknowledge and agree that you are solely responsible, and that Mobux has
no liability whatsoever, in relation to the items described in clause 3.
This limitation and exclusion of liability applies whether such claim
is made under statute, in tort (for negligence or otherwise), under an
indemnity, in equity or otherwise.
9.3 Exclusion of
warranties. To the extent permitted by law, Mobux excludes all
warranties and representations, express and implied, in relation to the
provision of the Mobux Services (including warranties as to
merchantability and fitness for purpose, and as to the availability,
accuracy, reliability or currency of information or content provided via
the Website or any Mobux Services).
9.4 Where implied
warranties cannot be excluded. Where implied conditions and
warranties cannot be excluded under clause 9.3, to the extent permitted by
law, Mobux limits its liability to:
(a) if the breach or liability
relates to goods, at Mobux's option, the replacement of the goods or
supply of equivalent goods, the repair of the 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;
(b) if the breach or
liability relates to services, at Mobux's option, the supplying of the
services again or the payment of the cost of having the services supplied
again.
10. TERMINATION
10.1 Termination for
breach. Where you have breached any provision of this agreement,
and without prejudice to any other rights or remedies, Mobux may by
written notice immediately terminate this agreement, any Orders, or the
provision of any Mobux Services, without any liability to you.
10.2
Termination without cause. Mobux may terminate your
registration to use, and access to, the Mobux Services without cause by
giving you seven days prior written notice. Termination under this clause
9.2 will not affect any existing agreed Order.
10.3 Termination
of licence. On termination of this agreement, the licence granted
under clause 4.2 will terminate automatically.
10.4
Survival. Clauses 4, 6, 7, 8, 9, 10 and 11 survive
termination or expiry of this agreement for any reason.
11. GENERAL
11.1 Interpretation.
In this agreement (i) headings are for ease of reference only and do not
affect the meaning of this agreement; (ii) the singular includes the
plural and vice versa; (iii) a person includes a natural person,
partnership, body corporate, association, governmental or local authority
or agency or other entity; and (iv) the meaning of general words is not
limited by specific examples introduced by 'including', 'for example' or
similar expressions.
11.2 Notice. You acknowledge and
agree that Mobux may provide notice to you via electronic mail
(e-mail) at the e-mail address submitted by you in the
registration form attached to this agreement, or by other electronic
communication through the Website. Notice by e-mail will be deemed to be
received by you when an acknowledgment is recorded on our systems that the
correctly addressed e-mail has been transmitted successfully. Notice
through the Website will be deemed to be received by you when you next log
into the Website.
11.3 Variation. This agreement may
be varied by Mobux from time to time by written notice to you.
11.4
Governing law. This agreement is governed by and
interpreted in accordance with the laws of the State of Victoria,
Australia, and both of us submit to the jurisdiction of the courts of that
State.
11.5 Entire agreement. This agreement
(including the registration form and any applicable Orders) is the entire
agreement between us on its subject matter and supersedes any previous
arrangements, agreements, representations, understandings or statements
(whether verbal, in writing, or in some other format).
|
|