Terms and Conditions
1. Membership
The Member engages Sowhatslocal Pty. Ltd. ACN 129 581 951 (“Sowhatslocal”) to use the Website for the Services in accordance with these Terms and Conditions.
2. Sowhatslocal services
Subject to clause 5, from time to time, the Website will provide the following Services:
(a) Business Member
Upon payment of the appropriate Fee set out in clause 4, Business Members will be able to access the following Services (“Business Services”):
(i) The results of other Members’ rating of their business;
(ii) Posting of Event information for the Business Member’s business and viewing other Events on the Website;
(iii) Its own web page located on the Business Member’s local community web page, where information about the Business Member’s business may be hosted on the Website ; and
(iv) The ability to update information on the Business Member’s web page, as well as Event information via SMS.
(b) Personal Member
Upon payment of the appropriate Fee set out in clause 4, Personal Members will be able to access the following Services (“Personal Services”):
(i) Personalised searching of local Event information, business and entertainment which will be based on the profile created by the Personal Member when registering to use the Personal Services at www.sowhatslocal.com (“Profile”);
(ii) Posting of Event Information relevant to the Personal Member and viewing other Events on the Website;
(iii) Rating of businesses in the Personal Member’s local area, as set out in clause 2(d) (“Business Rating”):
(iv) Access to local information, via SMS, which will provide the local information based on:
(A) The Personal Member’s Profile;
(B) The Personal Member’s geographic location at the time the search is requested; and
(C) Any relevant Event information currently posted to the Website.
(c) Free Usage Entity
Free Usage Entities will be able to access the following Services (“Community Services”):
(i) Where a Free Usages Entity meets the Charitable Criteria, it will be entitled to access the Website free of charge;
(ii) Posting of Event information for the Free Usage Entity’s organisation and viewing other Events on the Website;
(iii) Its own web page located on the Free Usage Entity’s local community web page, where information about the Free Usage Entity’s organisation may be hosted on the Website ; and
(iv) The ability to update information on the Free Usage Entity’s web page, as well as Event information via SMS.
(d) Business Rating
Personal Members may rate a Business, as part of their Personal Services, as follows:
(i) Each Business Member will have a prominently displayed Sowhatslocal sign or sticker with a unique identification number;
(ii) The Personal Member will SMS a rating of that Business Member, with the following information, to the Website and in the following form:
(A) The Business Member’s unique identification number;
(B) A value out of 10 for:
(1) Quality of service;
(2) Quality of goods (e.g. food for a restaurant); and
(3) Quality of ambience.
(iii) The ratings posted by a Personal Member will be automatically monitored for consistency and accuracy by the Website and Sowhatslocal systems.
(iv) Sowhatslocal reserves the right to remove any rating, at any time, without notice.
3. Obligations of a member
Each Member covenants and warrants that:
(a) it will not reproduce, adapt, upload or link to any of the material on the Website, without the prior consent of Sowhatslocal, including saving the clips on the Website to any type of media.
(b) it will uphold the good name and protect the goodwill of Sowhatslocal at all times;
(c) it will conduct itself in a professional manner at all times and honour its obligations under these Terms and Conditions;
(d) it will not make use of the Website for any illegal activities or any activities which are likely to cause loss, cost, expense or damage to Sowhatslocal;
(e) it will not interfere with or disrupt the access of other users of the Website in any way;
(f) it will not place on the Website any material which are unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind;
(g) all information provided by the Member to Sowhatslocal which relates to the Member in any way is true and accurate in every detail;
(h) it will observe and be bound by the SMS terms; and
(i) it will observe and be bound by the Acceptable Usage Guidelines.
4. Fees
4.1 General
The Members will pay the following Fees in the following manner to obtain the Services from the Website:
(a) Business Member
Subject to clause 4.1(e), a Business Member will be required to pay the following fees in order to access the Business Services:
(i) AUD50.00 per quarter for general access to the Business Services which includes the ability to post Event information for one Event per calendar month; and
(ii) AUD10.00 per Event for each Event greater than one Event per calendar month.
(b) Personal Member
A Personal Member will be required to pay the following fees in order to access the Business Services:
(i) General access to the Personal Services is free of charge and includes the ability to post Event information for one Event per calendar month; and
(ii) AUD10.00 per Event for each Event greater than one Event per calendar month.
(c) Free Usage Entity
(i) Free Usage Entities who meet the Charitable Criteria may use the Services as set out in clause 2(c) free of charge, including the posting of Event Information for as many Events as they wish (for their own organisation only), during any calendar month.
(ii) If a Free Usage Entity does not meet the Charitable Criteria, then they may still use the Services, but for the purposes of these Terms and Conditions, they will be Business Members and will have access to the Business Services and will be required to pay the Business Fees in order to access the Community Services.
(d) SMS
All Members acknowledge and agree that they will:
(i) comply with the SMS Terms; and
(ii) incur fees from their respective carriers for each and every SMS they send or receive as part of the Services and that it is the Member’s sole responsibility to pay for these fees in full.
(e) Free Trial
(i) A Business Member will be entitled to a free trial period of three (3) months from the date that Business Member registers on the Website (“Free Trial Period”).
(ii) During the Free Trial Period, no Fees are payable by the Business Member, however, the Business Member will otherwise comply with these Terms and Conditions and, upon expiry of the Free Trial Period, the Business Member will be required to pay the Fees set out in clause 4.1(a).
4.2 Payment
(a) In order to access the Website, a Member must pay the Fees set out in clause 4.1 (if any).
(b) All Fees are due and payable:
(i) Business Member
(A) Quarterly in advance for Business Member’s general access; and
(B) At the time of posting, for Event information which constitutes more than one Event per calendar month.
(ii) Personal Member
At the time of posting, for Event information which constitutes more than one Event per calendar month.
(iii) Free Usage Entities
If the Free Usage Entity is considered a Business Member pursuant to clause 4.1(c)(ii), then Fees will be payable by that Free Usage Entity as set out in clause 4.2(b)(i).
(c) Any Member is entitled to cancel its subscription to the Website at any time, and that Member will not be charged any further Fees, however, any Fees paid by that Member up to the date of cancellation (including any Fees paid but unused) will not be refunded.
(d) For the avoidance of doubt, upon cancellation, if a Member has paid for the posting of Event information, whether or not that Member has already posted that Event information, no refund will be issued, but the Member will not be required to pay any further Fees and if a Business Member has paid its quarterly membership, no further Fees will be charged, but that Business Member will not be refunded any balance remaining in the relevant quarter.
4.3 Method of Payment
(a) All payments made using a credit card will use the secure on line credit card payment services provided by PayPal.
(b) The Terms and Conditions governing payment by credit card are those set out on PayPal’s website.
5. Intellectual Property
(a) Each Member agrees that the copyright in all information provided by it to Sowhatslocal (other than personal information relating specifically to that Member), is owned by Sowhatslocal.
(b) Sowhatslocal may use such information for any purpose, including statistical analysis, subject to Sowhatslocal removing any personally identifying characteristics from such information, prior to processing such information.
6. Privacy
(a) Each Member and Sowhatslocal are bound by the terms and conditions of the Privacy Policy, set out on the Website.
(b) By registering as a Member, each Member agrees that they are expressly agreeing to the provision of advertising material and other information from other members, particularly Business Members and Free Usage Entities and each Member further expressly agrees that where such information is covered by any do not call register, that Member has agreed to receive such information.
7. Confidentiality
Each Member expressly agrees that it will not post any information to the Website for which it does not have appropriate permission to post that information, or which is confidential in any manner whatsoever or which should not be posted on the Website, either due to its nature (whether expressly or by implication).
8. Age
Each Member expressly agrees that it is either:
(a) over 18 years of age and, therefore, may access all of the Website, including content which is, by its nature or otherwise, adults only; or
(b) not over 18 years of age, and therefore, expressly agrees that it will be restricted by the Website and Sowhatslocal systems from accessing any content which is, by its nature or otherwise, adults only.
9. Powers of SoWhat'sLocal
The Member agrees that:
(a) Sowhatslocal at its sole and absolute discretion may refuse to allow a Member to access the Website, without notice to the Member.
(b) Sowhatslocal may modify the Website (including, without limitation, the Fees payable from time to time) in any way, without notice to a Member.
(c) Sowhatslocal may modify these Terms and Conditions without notice to a Member and such modifications will apply from the time that they are made.
(d) Upon payment of the Fees, a Member will be provided by Sowhatslocal via the Website, or by email, with the means to access the Website, such as an activation key and password.
(e) Sowhatslocal may require a Member to change its user name or password or use a different method of accessing the Website from time to time.
(f) Each Package entitles a Member to allow as many staff as it desires, at the one location, to use the same user name and password to access the Website. The Member will not share the user name and password with any other third parties.
10. International Users
(a) Sowhatslocal is controlled, operated and administered by Sowhatslocal Pty. Ltd. ACN 129 581 951, from its offices within Australia.
(b) Sowhatslocal makes no representation that materials or content available through the Sowhatslocal Website or Sowhatslocal Services are appropriate or available for use outside Australia and access to them from territories where their content is illegal, is strictly prohibited.
(c) Members may not use the Sowhatslocal Services or export the content of the Sowhatslocal Website, or Sowhatslocal Services, in violation of any country’s applicable export laws and regulations.
(d) If a Member accesses the Sowhatslocal Services from a location outside Australia, that Member is responsible for compliance with all applicable laws.
11. REPRESENTATIONS AND WARRANTIES
(a) The Member acknowledges and agrees that Sowhatslocal has not made any representation or given any warranties:
(i) In relation to the Website; or
(ii) In relation to the Services provided by Sowhatslocal via the Website or otherwise.
(b) Use of the Sowhatslocal Services is at each Member’s own risk. All content is provided "as is" and "as available". Neither Sowhatslocal nor any of its affiliated or related companies, nor any of its employees, agents, content providers or licensors make any representation or warranty of any kind regarding the Sowhatslocal Services, the content of the Sowhatslocal Website, any advertising material, events, information, products or services available on or through Sowhatslocal, and/or the results that may be obtained from the use of the Sowhatslocal Services.
(c) To the extent permissible at law, all express or implied warranties, including (without limitation) warranties of merchantability and fitness for a particular purpose, warranties against infringement, and warranties that the Sowhatslocal Services:
(i) will meet any Member’s requirements; or
(ii) will be uninterrupted, timely, secure or error free, are specifically disclaimed by Sowhatslocal.
(d) Sowhatslocal and its affiliates are not responsible or liable for content posted by third parties, actions of any third parties, or for any damage to, or virus that may infect any Member’s computer equipment or other property.
(e) Sowhatslocal contains facts, views, opinions, statements and recommendations of third party individuals and organizations. Sowhatslocal does not represent or endorse the accuracy, currency or reliability of any advice, opinion, statement or other information displayed, uploaded or distributed through the Sowhatslocal Website or Sowhatslocal Services.
(f) Any reliance upon any such opinion, advice, statement or information is at a Member’s sole risk.
(g) Sowhatslocal and its affiliates, employees, agents, content providers or licensors will not be liable for any indirect, consequential, special, incidental or punitive damages including, without limitation:
(i) damages related to unauthorized access to or alteration of your transmissions or data; or
(ii) the content or any errors or omissions in the content, even if advised of the possibility of such damages.
(h) Under no circumstances will Sowhatslocal and its affiliates, employees, agents, content providers or licensors be liable for any amount for direct damages, in excess of AUD100.00.
12. INDEMNITY
Each Member indemnifies and keeps indemnified Sowhatslocal, its employees and sub-contractors on demand against any loss, expense, cost, damage, claim, demand, suit, action, proceeding, judgement, order of a court or tribunal, legal fees (on a solicitor and own client basis) which Sowhatslocal pays, suffers or incurs or is liable for in respect of:
(a) Any negligent act or omission of that Member;
(b) Any act or omission of that Member which is intended by that Member to cause damage in any way to Sowhatslocal;
(c) Any breach by that Member of these Terms and Conditions;
(d) The failure of that Member to comply with these Terms and Conditions;
(e) The failure of that Member to comply with the SMS Terms; or
(f) The failure of that Member to comply with the Acceptable Usage Guidelines.
13. DISCLAIMER
(a) Sowhatslocal gives no express warranty in relation to the supply of the Sowhatslocal Services and each Member acknowledges that it has not relied on any representation or warranty made by or on behalf of that Member in relation to the Sowhatslocal Services.
(b) Any warranties or conditions implied by law, either by statutory instrument or otherwise, are expressly excluded to the extent that such warranties and conditions in respect of the Sowhatslocal Services may be lawfully excluded.
(c) To the extent permitted by law, if Sowhatslocal is or becomes liable to a Member in any manner whatsoever for breach of warranty or in relation to the supply of any defective Sowhatslocal Services, then Sowhatslocal’s liability will be limited solely to the price paid by that Member for the Sowhatslocal Services or the cost of their re-supply, whichever Sowhatslocal elects.
(d) Each Member acknowledges that it has undertaken its own inspections and made its own independent enquiries in reaching its decision to purchase the Sowhatslocal Services pursuant to these Terms and Conditions.
14. DISCONTINUATION OF SERVICE
(a) Sowhatslocal may modify, suspend, discontinue or restrict the use of any portion of the Sowhatslocal Website or Sowhatslocal Services, including (without limitation) the availability of the Sowhatslocal Website, events register and any Member pages at any time, without notice or liability.
(b) Sowhatslocal may deny access to any Member or other user, at any time, for any reason and without notice or liability.
15. TERMINATION
(a) Sowhatslocal may terminate this agreement at any time without notice.
(b) Upon termination:
(i) Sowhatslocal will remove the Member’s access to the Website; and
(ii) the Member must immediately pay Sowhatslocal any outstanding Fees that it owes Sowhatslocal.
(c) The obligations of the Member under clauses 3, 4, 5, 6, 7, 8, 10, 11, 12 and 14 survive the termination of this agreement.
16. ASSIGNMENT
(a) Sowhatslocal may assign its rights and liabilities arising under these Terms and Conditions.
(b) A Member is not entitled to assign or purport to assign any of its rights or liabilities under these Terms and Conditions without the prior written consent of Sowhatslocal (which consent may be withheld).
17. PENALTY INTEREST
Any moneys outstanding from a Member to Sowhatslocal will incur interest at a rate of 2% above the penalty interest rate as specified in the Penalty Interest Rates Act from time to time.
18. ACCEPTABLE USAGE GUIDELINES
Each Member agrees that the Acceptable Usage Guidelines form part of these Terms and Conditions and if there is any conflict between these Terms and Conditions and the Acceptable Usage Rules, then these Terms and Conditions will prevail.
19. GST
All of the Fees are exclusive of GST.
20. GENERAL
(a) Each party warrants by agreeing to abide by these Terms and Conditions that they have obtained independent legal and financial advice on these Terms and Conditions.
(b) An obligation imposed on two or more persons binds each of them jointly and severally.
(c) If a provision of these Terms and Conditions is held to be invalid or unenforceable in whole or in part the provision is ineffective only to the extent of the invalidity or unenforceability and the validity or enforceability of all other provisions of these Terms and Conditions are not affected.
(d) Sowhatslocal reserves the right to change these Terms and Conditions at any time, at its sole discretion, and to notify Members of any such changes solely by changing these Terms and Conditions on the Sowhatslocal Website. A Member’s continued use of Sowhatslocal Services after the posting of any amended Terms and Conditions constitutes that Member’s agreement to be bound by any such changes. A Member’s use of the Sowhatslocal Website prior to the time these Terms and Conditions were posted, will be governed by the Terms and Conditions that applied at the time of the Member’s use of the Sowhatslocal Website.
(e) A party may validly give a notice to another party only by:
(i) personally serving the notice on the other party (the notice is treated as received at the time of service of the notice);
(ii) leaving the notice at the address of the party as specified in these Terms and Conditions or as otherwise notified in writing by that party to the sending party at any time (the notice is treated as received at the time the notice is left at the relevant address);
(iii) posting the notice by prepaid post to the address of that party as specified in these Terms and Conditions or as otherwise notified in writing by that party to the sending party from time to time (the notice is treated as received 5 days after the date on which it is posted);
(iv) emailing the notice to the email address of the other party and the email will be deemed to have been received within 24 hours of the time that the email is sent; or
(v) sending the notice by facsimile, without transmission error (the notice is treated as received on production of a “successful transmission” notice) to the facsimile number of the party.
(f) Each Member is bound under these Terms and Conditions not only in its own capacity but also in its capacity as trustee of each trust of which it is trustee.
(g) Sowhatslocal may, at any time, and without requiring the consent of any Member, transfer its rights and obligations under these Terms and Conditions to any associated entity, affiliate, subsidiary or business unit, or to any of their affiliated companies or divisions, or to any entity that acquires any of Sowhatslocal’s or their businesses or assets.
(h) These Terms and Conditions are governed by, and must be construed in accordance with, the laws of the State of Victoria in the Commonwealth of Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria and the courts of appeal from them.
(i) Waiver of a breach of, or default under, these Terms and Conditions or of any right, power, authority, discretion or remedy created or arising upon a breach of, or default under, these Terms and Conditions:
(i) is not waived by any failure to exercise or delay in exercising or partial exercise of any right, power, authority, discretion or remedy under these Terms and Conditions; and
(ii) must be in writing and signed by the party granting the waiver.
(j) The section titles used in these Terms and Conditions are purely for convenience, and have no legal or contractual effect.
(k) To the extent permissible at law, each Member agrees:
(i) to file any claim regarding any aspect of the Sowhatslocal Website, the Sowhatslocal Services or these Terms and Conditions, within six months of the time when the event(s) giving rise to the claim(s) began, failing which each Member agrees to waive any such claim(s); and
(ii) that no claim(s), subject to these Terms and Conditions, may be brought as a class action.
(l) Each party must do all things and execute all further documents necessary to give full effect to these Terms and Conditions.
(m) There are no other representations, promises, warranties, covenants or undertakings between the parties and these Terms and Conditions supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.
(n) If there is a conflict between these Terms and Conditions and the terms of the SMS Terms, the Acceptable Usage Guidelines, the Sowhatslocal privacy policy, the Sowhatslocal Privacy Manual, the Sowhatslocal Website disclaimer, the Sowhatslocal Website copyright statement or any other Sowhatslocal document, then these Terms and Conditions will prevail.
21. DICTIONARY
The following words have these meanings in these Terms and Conditions unless the contrary intention appears:
| AUD |
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means Australian dollar |
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| Acceptable Usage Guidelines |
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means the Acceptable Usage Guidelines which govern the use of the Website |
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| Business Member |
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means a person who registers as a business member on the Website and to whom the Business Services are made available in accordance with these Terms and Conditions |
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| Business Rating |
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means a rating of a Business Member by a Personal Member as set out in clause 2(d) |
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| Business Services |
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means the personal services described in clause 2(a) |
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| Chartitable Criteria |
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means that the relevant Member is a registered not for profit charity in any State or Territory of the Commonwealth of Australia or the Member is a recognised community, religious or philanthropic organisation widely recognised by the community in which it is located, as being charitable and not for profit in nature |
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| Community Services |
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means the personal services described in clause 2(c) |
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| Event |
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means any event which a Member wishes to register on the Website |
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| Fees |
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means the fees set out in clause 4, (and which may be amended from time to time) and which are payable by the Member for accessing the Services and the Website. |
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| Free Usages Entity |
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means a person who registers as a Free Usage Entity on the Website and to whom the Community Services are made available in accordance with these Terms and Conditions |
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| Member |
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means a person who accesses the Website in accordance with these Terms and Conditions and includes a Business Member, a Personal Member and a Free Usage Entity. |
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| Personal Member |
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means a person who registers as a personal member on the Website and to whom the Personal Services are made available in accordance with these Terms and Conditions |
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| Personal Services |
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means the personal services described in clause 2(b) |
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| Profile |
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means a Personal Member’s profile created by the Personal Member, when registering to use the Personal Services at www.sowhatslocal.com.au |
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| Services |
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means all services provided by Sowhatslocal via the Website and otherwise and includes the Business Services, the Personal Services and the Community Services. |
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| SMS |
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means the simple messaging service provided by telecommunications carriers within the Commonwealth of Australia and elsewhere |
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| SMS Terms |
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means the SMS Terms which govern the use of SMS by a Member |
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| Sowhatslocal |
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means Sowhatslocal Pty. Ltd. ACN 129 581 951 |
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| Sowhatslocal Services |
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means the Business Services, the Personal Services, the Community Services and any and all other services provided by Sowhatslocal to a Member pursuant to these Terms and Conditions. |
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| Website |
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means www.sowhatslocal.com.au and www.sowhatslocal.com or such other Website operated by Sowhatslocal from time to time from which Sowhatslocal provides the Sowhatslocal Services. |
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SMS Terms
These SMS Terms govern the SMS component of the Sowhatslocal Services (“Sowhatslocal services”) provided by Sowhatslocal Pty. Ltd. ACN 129 581 951 (“Sowhatslocal”). These SMS Terms are not exhaustive and Sowhatslocal reserves the right to modify them at any time, effective upon posting of the modified SMS terms to http://www.sowhatslocal.com/.
By registering for and using the Sowhatslocal Services, and thereby accepting the Sowhatslocal Terms and Conditions, you also agree to abide by these SMS Terms as modified from time to time. Any violation of these SMS Terms may result in the termination of your account in the manner described in the Sowhatslocal Terms and Conditions.
These Terms are designed to comply with the Telecommunications Service Provider Determination 2005 No1, section 99 of the Telecommunications Act, 1997
1. MEMBER EXPRESS CONSENT TO SMS
By agreeing to the Sowhatslocal Terms and Conditions, you expressly provide unconditional consent to:
(a) the provision of SMS Services to you by Sowhatslocal; and
(b) receiving accounts for SMS-MT and/or SMS-MO.
2. MEMBER RIGHTS AND OBLIGATIONS
(a) By agreeing to the Sowhatslocal Terms and Conditions, you expressly warrant that you are the true owner of the SIM for the mobile number you register on the Website.
(b) You may opt out of receiving SMS Services from Sowhatslocal, at any time, by sending the word “stop” in an SMS message to the Sowhatslocal Shortcode of “199Local” or “19956225”.
3. SOWHATSLOCAL SMS SERVICES
(a) Charges
(i) You must ensure that you are aware of the charges (including GST) that are payable in relation to the SMS Services and how these charges will be billed to you. This information is clearly set out in the SMS Charges Table.
(ii) By agreeing to the Sowhatslocal Terms and Conditions, you expressly warrant that you have read and understood the SMS Charges Table.
(b) Print and TV Advertising
Sowhatslocal will use its commercially reasonable endeavours to ensure that all print and TV advertising follow all applicable laws, guidelines, regulations and authorities including (without limitation):
(i) Australian Competition and Consumer Commission;
(ii) Trade Practices Act, 1974 (Cmlth);
(iii) Free TV Australia;
(iv) Free TV Australia advertising code of practice; and
(v) Australian Broadcasting Authority.
To the extent commercially reasonable, all SMS Services will be advertised in a manner which is clear, honest and complete, to ensure that you are aware of the exact nature of what is being offered
(c) SMS Advertising
All SMS Services advertising by Sowhatslocal will, to the extent which is commercially reasonable, comply with the following principles:
(i) All information relating to price and service will be displayed clearly, accurately, in the same orientation or direction and within sufficient proximity to the service;
(ii) Price information will be relative in size to that of any SMS Short Code advertised;
(iii) If any of the SMS Services are targeted to children, a parental guidance will be displayed advising consumers under 15 years of age not to use that SMS Service without the permission of the relevant account holder;
(iv) The Sowhatslocal helpdesk number will be clearly included in all advertising;
(v) Where applicable, advertising will refer explicitly to any standard charges that will apply when using or accessing the service.
For example:
AUD3.50 plus standard sms and/or mms rates apply.
(vi) Content or access to content which may be rated as “M”, “PG” or “G” in accordance with OFLC classifications, will be made available without age verification;
(vii) Content that could be assessed as “MA15+” or “R18+” will not be made available to you unless you have been verified as being 18 years or over, in a manner approved by the relevant provider of the content; and
(viii) Advice on classification can be sought from the OFLC.
(d) Marketing
Your details will only be included in the Marketing Database, if you have purchased content or services from Sowhatslocal.
The Marketing Database may be used by Sowhatslocal for any purpose it determines at its sole discretion.
Sowhatslocal will not on-sell the Marketing Database to any third party, but Sowhatslocal may share the results with its affiliates and subsidiaries.
Any marketing SMS messages sent to you will:
(i) be a standard SMS;
(ii) be at no charge to you;
(iii) not contain any implied personal message or any other message which creates a false imperative to reply by premium text;
(iv) not include any adult related language or concepts;
(v) only relate to services provides by Sowhatslocal that are of the same nature as previous services utilised by you;
(vi) begin with the phrase “[FreeMsg]”; and
(vii) include details of the “stop” command to enable you to stop any further marketing messages.
A maximum of 3 marketing messages, per week, may be sent to you.
Any “stop” sent by you, in response to a marketing message, will terminate your consent and you will be removed from the marketing database.
You will receive no further marketing contact from Sowhatslocal, unless you independently opt back into receiving the SMS Service, at a later time.
(e) Database Management
Sowhatslocal will implement commercially reasonable processes to ensure that, if you obtain a new mobile service, you do not receive content or services from the previous user of the number.
In addition, Sowhatslocal will use its commercially reasonable endeavours to remove you from its Marketing Database if you have had an inactive relationship with Sowhatslocal for 4 months.
An “inactive relationship” is classified as one in which Sowhatslocal has not successfully sent or received an SMS to or from you.
(f) Chat Services
If Sowhatslocal provides any chat services as part of the SMS Services, Sowhatslocal will use its commercially reasonable endeavours to ensure that these chat services will comply with the following:
(i) Participants will not be charged to receive messages unless they have expressly consented to accept the charges; and
(ii) Warnings about the risks of disclosing personal information will be provided to new entrants
(g) High Spend Limits
Some Carriers have implemented certain high spend limits across different values.
For all Carriers there is a limit of AUD500.00 maximum spend, per service, per user, per month.
In addition, in the case of Optus and Telstra, if the total cost of a particular service exceeds A$100.00 per calendar month, you will be suspended from the service and you will be informed that you have reached that Optus’s or Telstra’s usage limit.
(h) Subscription Service
Sowhatslocal will use its reasonable commercial endeavours to ensure that the promotion and operation of any Subscription Services comply with the following minimum requirements:
(i) All subscription services will complete a mobile authentication element to the sign up process, before any billable messages are sent to you, regardless of how or where the service is operated.
(ii) The mobile element in the process is to ensure that you have provided clear and authenticated consent to Subscription Services.
(iii) Promotional material for Subscription Services will clearly indicate that the relevant SMS Service is subscription based.
(iv) Visual material will expressly use the noun ‘subscription’ or the verb ‘subscribe’. These words will be prominent and highly visible to readers.
(v) Voiceover material will explicitly describe the service as a ‘subscription’ or use the verb ‘subscribe’ to convey the activation method.
(vi) Where the Subscription Services are via the Website, Sowhatslocal will send you an SMS with the following information:
(A) be a standard SMS;
(B) be at no charge to you;
(C) begin with the phrase “[FreeMsg]”;
(D) include the name of the service and an optional description;
(E) include the service cost and frequency;
(F) include the phrase “To subscribe send “YES” to 199Local or “19956225”;
(G) include details of the unique pin/password to be entered into a the Website (or wap application); and
(H) include details of the Sowhatslocal helpline.
(vii) The terms of use information for Subscription Services (for example and without limitation. whole cost pricing, charging period and opt-out) will also be clearly described and visible.
(i) Confirmation of Joining
Where Sowhatslocal provides Subscription Services, it will provide confirmation in a dedicated SMS to you that you have entered into a subscription service. This will be the first message sent to you after the MO subscription message. The message will:
(i) commence with the phrase “[FreeMsg]”;
(ii) confirm that you have entered a subscription arrangement;
(iii) include the name of the service and an optional description;
(iv) include the service cost and frequency;
(v) include details of the “stop” command; and
(vi) include details of the Sowhatslocal helpline.
For example:
[Free Msg] Thanks for subscribing to Sowhatslocal Alerts. Cost = AUD3.50 per week, until you send STOP to 19956225. Helpline 1300xxxxxx
(j) Expenditure Notification
A 30-day Subscription Reminder Notification will be sent to you at the end of each calendar month. The message will:
(i) commence with the phrase “[Free Reminder]”;
(ii) include the name of the service and an optional description or short-code;
(iii) include service cost and frequency;
(iv) include details of the “stop” command; and
(v) include details of the Sowhatslocal helpline.
For example:
[Free Reminder] U are subscribed to Sowhatslocal Alerts. Cost = AUD3.50 per week, until you SMS STOP to 19956225. Helpline 1300xxxxxx
4. SMS SERVICES WARRANTY, INDEMNITY AND LIABILITY
(a) Sowhatslocal warrants that it will use its reasonable commercial endeavours to ensure that all of the information contained in any SMS Services will not be in breach of the law, and that it will comply with:
(i) all applicable legislation including (without limitation) the Privacy Act 1988 (Cmlth) and the Spam Act 2003 (Cmlth); and
(ii) all instructions, regulations and guidelines issued by all applicable regulatory authorities including (without limitation) the Australian Communications Industry Forum Code.
(b) Sowhatslocal will use its reasonable commercial endeavours in providing the SMS Services, but Sowhatslocal does not guarantee that the information provided through the SMS Services will be accurate, complete or up to date and does not guarantee that the SMS Services will be free of interruptions or errors.
(c) To the extent permitted by law, if Sowhatslocal is or becomes liable to you in any manner whatsoever for breach of warranty or in relation to the supply of any defective SMS Services, then Sowhatslocal’s liability will be limited solely to the price paid by you for the SMS Services or the cost of their re-supply, whichever Sowhatslocal elects.
(d) To the extent permitted by law, Sowhatslocal excludes all liability for any direct, indirect or consequential loss or damage (including loss of profit or revenue or loss of business) incurred by any person arising from or in connection with the SMS Services.
5. DICTIONARY
The following words have these meanings in these SMS Terms unless the contrary intention appears:
| AUD |
|
means the Australian Dollar |
| Carrier |
|
means a telecommunications carrier as defined in the Telecommunications Act 1997 (Cmlth) and includes Optus and Telstra. |
| Chat Services |
|
means a chat service provided via SMS |
| Marketing Database |
|
means a database of customer details maintained for the purpose of sending marketing or promotional messages that relate to products or services offered by Sowhatslocal. |
| OFLC |
|
means the Office of Film and Literature Classification |
| Optus |
|
means Singapore Telecommunications Limited (ARBN 096 701 567) and each of its affiliates and related corporations |
| SIM |
|
means the SIM card issued to you by your Carrier for your mobile phone or device |
| SMS |
|
means a short message service:
• which is an SMS-MT; or
• which is an SMS-MO. |
| SMS-MO |
|
means a mobile originated short message service received by a Carrier from you |
| SMS-MT |
|
means a mobile terminated short message service sent by a Carrier to you |
| SMS Services |
|
means services provided by Sowhatslocal via SMS |
| SMS Short Code |
|
means the Sowhatslocal short codes, which include “199Local” or “19956225” |
| Sowhatslocal Terms and Conditions |
|
means the Sowhatslocal Terms and Conditions available at the Website |
| Subscription Services |
|
means a subscription service is any service which:
• offers multiple content, initiated by a sign-on process;
• includes both recurring services billed at regular intervals and also services that are billed with content delivery; and
• is billed by a mobile payment mechanism |
| Telstra |
|
means Telstra Corporation Limited (ACN 051 775 556, ABN 33 051 775 556) and each of its affiliates and related corporations |
| Website |
|
means www.sowhatslocal.com.au and www.sowhatslocal.com or such other Website operated by Sowhatslocal from time to time from which Sowhatslocal provides the Sowhatslocal Services |
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