Terms & Conditions

Last updated: 16.3.2018

These terms and conditions (Terms) govern the services offered by Contacta Pty Ltd ACN 624 829214 of 51 Victoria Cres, Abbotsford, VIC, 3067 (we, us or our) through our website at www.sproutsend.com (Website).

By creating an Account, you (and the entity you represent) (You or Your) agree to be bound by these Terms.

Otherwise, then as set out above, all capitalised terms used in these Terms are defined in the dictionary in clause 18.

1. 1. OVERVIEW OF SERVICES

      We offer various Services which You may subscribe for by creating Your Account, including:

      1. database and contact management;
      2. member SMS services;
      3. email marketing; and
      4. any other services that we offer from time to time as specified on our Website.

      You can find additional details about such Services on our Website.

   2. SUBSCRIBING TO OUR SERVICES
      1. When You first sign-up to receive the nominated Service or Services, You will create a user account which You can use to subscribe to a Service, pay the Fees and otherwise manage Your subscription (Your Account).
      2. You should ensure that You are ready to subscribe to our Services before You create Your Account. Once Your Account is created, you agree to subscribe for the Services on a month by month basis and we will begin to charge You for our Services in accordance with these Terms.
      3. We will use our best endeavours to ensure the Services are available to You at all times.
   3. YOUR ACCOUNT
      1. To enable You to use and access Your Account, we will provide You with personalised Security Details.
      2. You are responsible for the use, supervision, management and control of those Security Details at all times. You must keep Your Account and Security Details confidential, and are responsible for all activities that occur under Your Account. For the avoidance of doubt, You will be responsible for any (authorised or unauthorised) use of or access to Your Account by any person using your Security Details.
      3. You must immediately notify us in writing on our Notified Contact Details if You become aware of any actual or potential unauthorised access to Your Account or any accidental or deliberate disclosure or use of your Security Details to any person not specifically authorised by You to access Your Account.
      4. You must arrange for Your own internet access and any other equipment or services that You require to access Your Account.
      5. You must immediately notify us in writing if You are unable to access Your Account (i.e. if Your Security Details are not working).
      6. We may provide you with reasonable directions from time to time in connection with Your use of Your Account and our Services. You agree to comply with any reasonable directions that we provide to you.
   4. TELEPHONE NUMBERS
      1. We may provide you with Telephone Numbers where necessary to obtain the benefit of certain Services.
      2. The Telephone Numbers are made available to You solely for the use of the Services (including enabling you to send and receive SMS messages via the Service), and cannot be used to make or receive calls.
      3. You will be charged for Your use of the Telephone Numbers in accordance with clause 6.
      4. If we change the Telephone Numbers, we will:
         1. provide You with notice via Your Account and inform You of the proposed dates from which the changes will apply, which notice will be provided no less than 14 days prior to the proposed change; and
         2. use our reasonable endeavours to ensure that replacement Telephone Numbers are made available to You provided that the total number of Telephone Numbers made available and the costs for Your use of such replacement Telephone Numbers accords with the total number of Telephone Numbers approved for Your use pursuant to Your Account.
   5. COMMUNICATIONS

      We may send notices and other communications regarding Your Account, the Services or other matters to You via email.  You should update Your Account so that your contact details are current at all times.  You can update your communication preferences through Your Account.

   6. FEES
      1. We will charge you a one-off setup fee (Set Up Fee) when you subscribe for our Services by creating Your Account.
      2. We will also charge you our standard monthly Fee.
      3. All of our Fees, including the Set Up Fee, are outlined in our Price List.  The Price List applicable to You when you first sign up for our Services will be provided or disclosed to you by one of our agents before you register Your  Account. Those Fees will also be outlined to you during the Account set up the process. Our Price List may be updated from time to time in accordance with clause 6.11.
      4. Certain services and features that we offer incur additional Fees which are outlined in our Price List. You will be prompted to confirm whether You wish to proceed with the relevant service or feature via Your Account before we charge You to access those services or features and provide you with access to them.
      5. All Fees are payable on a monthly basis.
      6. All Fees stated are exclusive of taxes, levies or duties imposed by the tax authorities.
      7. We will issue a tax invoice to you on a monthly basis:
         1. the next months’ standard monthly Fee (payable in advance); and
         2. all other Fees payable in respect of the month of invoice (payable in arrears).

         Our invoices will be emailed to You at the email address specified in the details section of Your Account. All invoices will also be available through the “billing” section of Your Account.

      8. All Fees are to be paid by direct debit (using a valid debit or credit card) unless we agree (in our sole discretion) that You may pay by another method. Fees will be debited from Your card once a month following the issue of an invoice to You in accordance with clause 6.7.
      9. You will be charged the setup fee (outlined in clause 6.1 above) as well as Your first months’ subscription when you first set up Your Account. 
      10. If you fail to pay our Fees by the due date for payment, we may suspend Your Account until such time as all outstanding Fees have been paid.
      11. We may change the Fees at any time by notifying you of our updated Price List (which may be by email) at least 30 days’ before the change will apply.
      12. You may elect to cancel Your subscription in accordance with clause 11.1 of these Terms if you do not wish to continue to subscribe for our Services following a change to our Fees.
      13. If You elect to pay by debit or credit card, You must provide us with a valid debit or credit card number belonging to You with available credit, at all times, sufficient to pay the applicable Fees. You authorise us, from time to time, to make all charges described in these Terms to that debit or credit card. If You cancel Your debit or credit card or it is otherwise terminated or expires, You must immediately provide us with a new valid debit or credit card number. You authorise us, from time to time, to undertake steps to determine whether the debit or credit card number You have provided to us is a valid debit or credit card number, including conducting credit checks through third party credit agencies.
   7. INTELLECTUAL PROPERTY
      1. You acknowledge and agree that we retain all right, title and interest in and to all Contacta Intellectual Property and that You have no right, title or interest in or to such Intellectual Property Rights.
      2. We grant You a revocable, non-transferable, non-sub licensable licence to use the Contacta Intellectual Property for the sole purpose of accessing Your Account and using our Services pursuant to these Terms.
      3. Despite anything else in these Terms, the Contacta Intellectual Property remains our property in all respects regardless of any modification, variation, enhancement or update by us, You or any third party. In addition, we have all right, title and interest in and to any Intellectual Property Rights created in connection with our provision of the Services to You.
      4. You must immediately notify us in writing if You become aware of any actual or potential unauthorised use of the Contacta Intellectual Property.
   8. YOUR WARRANTIES
      1. You represent and warrant that:
         1. Your engagement of us to provide the Services;
         2. Your provision of Data; and
         3. the use of Data by us or our licensees in providing the Services, will not infringe any Law or the rights of any person.
      2. Without limiting clause 8.1, You represent and warrant that:
         1. You will comply with all Laws (including Privacy Laws and Spam laws) when accessing Your Account and using our Services;
         2. You have the capacity to accept and be bound by these Terms;
         3. You will comply with all reasonable directions we provide to you in respect of Your Account and the Services;
         4. in respect of any Personal Information that You provide:
            1. You have obtained all consents from the relevant individuals necessary to enable you to collect such Personal Information and use such information for the purposes of obtaining our Services pursuant to these Terms;
            2. You have disclosed to those individuals all information required to be disclosed under the Privacy Laws which is consistent with the uses of the Personal Information in connection with our Services; and
            3. You have read and understood the Contacta Privacy Policy, which sets out how we use any Personal Information disclosed (including any Personal Information contained in Your Account about You or any of Your Members) during the course of our provision of the Services;
         5. in respect of all Data:
            1. You own all right, title and interest in and to all Intellectual Property Rights in the Data, subject to clause 8.2(e)(ii);
            2. to the extent Data contains material owned by a third party, You have obtained all necessary licences for its use in the Data by us and our sub-licensees; and
            3. the use of the Data by us or our sublicensees will not infringe any Intellectual Property Rights or any Laws;
         6. neither you nor your Personnel will:
            1. copy, reproduce, modify, alter, reverse assemble or reverse compile the Contacta Intellectual Property, or otherwise use the Contacta Intellectual Property other than to access Your Account and use the Services strictly in accordance with these Terms; or
            2. do anything which is of an offensive, illegal, fraudulent or defamatory nature which may bring disrepute or harm to us or our Personnel;
         7. You will not:
            1. transmit computer worms, viruses or any other malicious material or content;
            2. create or send any electronic messages to third parties fraudulently claiming to be or representing any business, person or entity; or
            3. create or send any electronic message which contains any obscene, sexually explicit, racist, abusive or defamatory material or any material which breach any Law;
            4. upload any information into Your Account or otherwise that you do not have a right to make available under any Law or under contractual or fiduciary relationships (such as Personal Information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
         8. You will only provide true, accurate, current and complete information about Yourself as part of Your use of the Services and/or Your Account;
         9. You will promptly update the information contained in Your Account to keep it true, accurate, current and complete; and
         10. You will not use or create a false identity, impersonate any person or entity or falsely state or otherwise misrepresent Your affiliation with a person or entity.
   9. RELEASE AND INDEMNITY
      1. To the extent the law permits, You release us from all Claims (whether foreseeable or not) arising from:
         1. a breach by You of any warranty under these Terms;
         2. any breach of these Terms by You; or
         3. any negligence, default or lack of care on Your part.
      2. You must indemnify and hold us and our Personnel harmless against any Loss we suffer or incur in connection with a breach of these Terms by You or your Personnel except to the extent that the Loss is attributable to the negligence or wrongful act or omission of us. This indemnity is a continuing obligation and survives the termination or expiration of these Terms.
   10. OUR LIABILITY TO YOU
       1. You acknowledge and understand that our ability to create and maintain Your Account, provide You with the Services (including any Telephone Numbers) and otherwise fulfil our obligations under these Terms may be reliant on services provided by third parties, which may not always be available, accessible or functioning for reasons beyond our reasonable control.
       2. Subject to clause 10.3:
          1. all conditions, warranties and implied terms, whether statutory or otherwise, are excluded in relation to the Services;
          2. if our Services are defective, our only liability to You will be to re-perform the Services or pay Your reasonable costs of having the Services re-performed (at our election); and
          3. we exclude any liability for legal costs and disbursements and, without limitation, any indirect or consequential expense, loss or damage, loss or damage to reputation, loss of goodwill, loss of profits, revenue, use, expectation or opportunity, wasted expenditure, lost production or similar losses that You suffer under or in connection with these Terms.
       3. The Australian Consumer Law provides Consumers with a number of protections and Consumer Guarantees that cannot be excluded or limited. These Terms, and in particular the limitations of liability set out in these Terms, are therefore subject to, and will not apply to the extent that they limit or exclude, such protections and Consumer Guarantees applicable to Consumers. However, where the Australian Consumer Law permits us to limit the remedies available in respect of a breach of a Consumer Guarantee, we hereby limit those remedies, at our option, to supplying the Services again or paying the cost of having the Services supplied again.
   11. CANCELLATION AND SUSPENSION
       1. You may request to cancel Your subscription to our Services through Your Account, in which case we will send You an email requesting that You confirm that cancellation request. Your Account will become inactive within 30 days of the date on which you provide such confirmation. If you cancel Your subscription, You will be charged for all Fees up to and including the date of cancellation.
       2. We may immediately cancel Your subscription to our Services (thereby cancelling Your Account) if we form a reasonable belief that:
          1. You are in breach of these Terms (including if you fail to pay any Fees when they fall due);
          2. You have threatened to breach any part of these Terms;
          3. Your Security Details have been compromised including where You notify us of any unauthorised use or access to Your Security Details by any person;
          4. You are subject to an Insolvency Event;
          5. it is necessary in order to preserve the integrity and security of the Services or the Data;
          6. a change in the Law will result in the provision of our Services in accordance with these Terms being unlawful; or
          7. You otherwise do anything which in our reasonable opinion may compromise the integrity, operation, security, or viability of our Services, the Website or Your Account.
       3. Upon cancellation of Your subscription to our Services (and Your Account) for any reason pursuant to these Terms:
          1. we will immediately cancel your Security Details and access to the Services and Telephone Numbers; and
          2. we will extract and provide you with the Extracted Data upon payment of all outstanding Fees that are due and payable as at the date of cancellation.
       4. In addition to our rights under clause 11.2, we may immediately suspend Your Account if we deem it necessary or prudent to do so due to circumstances beyond our reasonable control, including disruption to network connections or equipment, loss of third-party services which we require in order to provide the Services, strikes, lock-outs, labour disputes, acts of God, acts of nature, acts of government or their agencies, fire, flood, storm, riots, power shortages or power failure, war, terrorist acts, sabotage, or inability to obtain sufficient labour, raw materials, fuel or utilities.
       5. If we suspend Your Account pursuant to clause 11.4, we will:
          1. provide you with written notice of the fact that Your Account has been suspended and, where possible, the reasons why;
          2. use our reasonable endeavours to make another comparable service available to you on similar terms (which you may choose to accept or reject at your discretion); and
          3. not charge you the Fee for the period during which the Services are suspended and no other comparable services are made available to you.
       6. Subject to any liability which we cannot lawfully exclude or limit, You acknowledge and agree that we will not be liable for any Loss that you may suffer or incur in connection with the suspension of Your Account in the circumstances described in clause 11.4.
   12. VARIATION OF THESE TERMS
       1. From time to time, we may be required to vary these Terms, including the Services that we offer.
       2. If we vary these Terms:
          1. we will post an updated version of the Terms  on the Website; and
          2. You will be notified of the updated Terms and asked to agree to them the next time you log in to Your Account.
       3. If you do not wish to continue Your subscription following a variation to these Terms, You may notify us in writing, in which case we will cancel Your Account immediately and You will only be charged for any Fees incurred up until the date of termination. We will provide You with Your Extracted Data as soon as possible upon receipt of all amounts due and payable.
       4. You will be deemed to have accepted the amended Terms if You continue to access and use Your Account and/or our Services following notification of a variation to the Terms pursuant to this clause. You may also be prompted to accept the amended Terms, in which case you will be unable to access Your Account until you do so.
   13. DATA
       1. We acknowledge and agree that You own all Data.
       2. You agree to grant us an irrevocable, transferable, non-exclusive, perpetual, worldwide, sub-licensable and royalty-free licence to use the Data for the purposes of these Terms, including without limitation:
          1. to create Your Account;
          2. to provide the Services to You; and
          3. for the purposes listed in clause 13.3;
          4. for any other purpose for which You have provided the Data or for which You consent from time to time.
       3. We may:
          1. use the Data for sending communications on Your behalf as part of the Services;
          2. use the Data to create a personalised experience for persons who are contacted through or who interact with the Services;
          3. aggregate the Data in order to improve performance and the nature of the Services;
          4. use the Data to produce generic depersonalised profiles (such as the preferences of customers) to enhance the provision of the Services;
          5. collect, use and disclose Personal Information contained in the Data in accordance with the Contacta Privacy Policy; and
          6. analyse the Data for various purposes such as benchmarking, market research and product analysis generic to industries in relation to both your and our other customers’ use of the Services.
       4. You must comply with the Privacy Laws and Spam Laws in connection with Your use of Your Account and/or the Services pursuant to these Terms, including without limitation by:
          1. ensuring that each Member whose Personal Information is included in the Data has been notified or made aware of all matters required under the Privacy Laws (including under Australian Privacy Principle 5);
          2. making available Your own privacy policy as required under the Privacy Laws (including under Australian Privacy Principle 1);
          3. ensuring that the disclosure and use of Personal Information as contemplated in these Terms are consistent with any disclosures to Members in compliance with clause 13.4(a) and Your privacy policy in compliance with clause 13.4(b);
          4. ensuring that each Member whose Personal Information is included in the Data has consented to receive commercial electronic messages for the purposes of the Spam Laws; and
          5. notifying us immediately if a Member requests their Personal Information be amended, deleted or removed from a mailing list, or otherwise requests not to receive any further unsolicited commercial messages.
       5. Subject to Your compliance with clause 13.4, we will comply with the Spam Laws in sending electronic commercial messages to Your Members in connection with our Services.
   14. Data Protection if you are located in the EU / EEA / EU and/or GDPR applies
       1. GDPR Data Protection
   15. GST
       1. Words or expressions used in this clause 14 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.
       2. Despite any other clause in these Terms, if a party makes a supply (Supplier) under or in connection with these Terms on which GST is payable (not being a supply the consideration for which is specifically described as ‘GST inclusive’):
          1. the consideration payable or to be provided for that supply but for the application of this Article (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST exclusive consideration multiplied by the prevailing rate of GST (GST Amount); and
          2. subject to clause 14.3, the GST Amount must be paid to the Supplier by the Recipient without set-off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
       3. The Recipient need not pay the GST Amount in respect of a taxable supply made under or in connection with these Terms until the Supplier has given the Recipient a tax invoice in respect of that taxable supply.
   16. NOTICES
       1. All notices given under these Terms must be in writing and may be delivered in person or by mail or email or sent by facsimile transmission to the relevant party’s Notified Contact Details. A party may change its Notified Contact Details by notice in writing to the other party.
       2. A notice sent by regular post will be deemed received on the sixth Business Day after posting.
       3. A notice sent by facsimile transmission will be deemed received at the time indicated by the sending party’s transmission equipment as the time that the facsimile was sent in its entirety unless the receiving party informs the sending party that the notice is illegible or incomplete within four business hours of it being transmitted.
       4. A notice sent by email transmission will be deemed received when the email (including any attachment) is sent to the receiving party at that email address unless the sending party receives a notification of delivery failure within 24 hours of the email being sent.
   17. GENERAL
       1. These Terms will be construed in accordance with the laws in force in Victoria and the parties submit to the jurisdiction of the Courts of Victoria.
       2. If any provision in these Terms is invalid or unenforceable, these Terms will remain otherwise in full force apart from such provision, which will be deemed deleted.
       3. The failure of a party to these Terms to enforce a provision or the granting of any time or indulgence will not be construed as a waiver of the provision nor of a waiver of the right of the party at a later time to enforce the provision.
       4. Your Account is not transferable.
   18. INTERPRETATION

       In these Terms:

       1. words in the singular include the plural and vice versa;
       2. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
       3. a reference to a person is to be construed as a reference to an individual, body corporate, unincorporated association, partnership, joint venture or government body;
       4. any reference to a party includes that party’s executors, trustees, administrators, successors in title and assigns;
       5. references to any document (including this document) include references to the document as amended, consolidated, supplemented, novated or replaced and includes all Schedules and annexures; and
       6. all references to currency are to Australian Dollars.
   19. DICTIONARY

       In these Terms, the following terms are defined as set out below:

       Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

       Business Days means a day when the banks are open for business in Melbourne, Victoria excluding a Saturday, Sunday or public holiday.

       Claim means a claim, demand, remedy, suit, injury, damage, loss, cost, expense, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent.

       Consumer has the meaning given to it in the Australian Consumer Law.

       Consumer Guarantee means any statutory guarantee provided to Consumers under Division 1 of Part 3-2 of the Australian Consumer Law.

       Data means all that information You provide to us in connection with the Services, including any Personal Information about You or Your Members, and any text, images, animations, sound and/or video recordings, works and other content included or proposed for inclusion in any communications arising from the Services.

       Extracted Data means Data from Your Account which we may extract from our database and return to you on the cancellation or termination of Your Account pursuant to these Terms.

       Fee means the fees we charge you from time to time in connection with Your access to Your Account and use of our Services, as set out in our Price List.

       GST has the same meaning as in the GST Act.

       GST Act means the A New Tax System (Goods and Services Tax) Act 1999.

       Insolvency Event means the happening of any of these events:

       1. a party suspends payment of its debts generally, is or becomes unable to pay its debts within the meaning of the Corporations Act 2001 (Cth);
       2. a party enters into, or resolves to enter into, any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
       3. a receiver, receiver and manager, liquidator, provisional liquidator, administrator, trustee or similar official is appointed over any of the assets or undertakings of a party, an application or order is made for the winding up or dissolution of a party or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a party, except for the purpose of an amalgamation or reconstruction which has the other party’s prior consent;
       4. a party goes bankrupt; or
       5. a party ceases or threatens to cease, to carry on a business.

       Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world (including present and future intellectual property rights) including (but not limited to) rights in respect of or in connection with:

       1. any related confidential information, trade secrets, know-how or any right to have information kept confidential;
       2. copyright (including future copyright and rights in the nature of or analogous to copyright);
       3. trademarks, service marks and other related marks; and
       4. all associated goodwill,

       whether or not existing at the date You agree to these terms and whether or not registered or registrable and includes any and all variations, modifications or enhancements to each of them together with any application or right to apply for registration of those rights and includes all renewals and extensions.

       Loss means all actions, claims, costs (including legal costs on an indemnity basis), damages, expenses, interest, liabilities and losses (including indirect and consequential losses).

       Member means a person whose Personal Information is included in a database in connection with our Services, which may include Your customers, potential customers, employees and contractors.

       Contacta Intellectual Property means any Intellectual Property Rights owned or used by us under licence including without limitation all Intellectual Property Rights in the Website, any Updates and any Intellectual Property Rights in existence or created in connection with our provision of the Services to You.

       Contacta Privacy Policy means our privacy policy, a copy of which is available at www.sproutsend/privacy-policy/

       Notified Contact Details means:

       1. in respect of You, Your address and contact details as set out in Your Account; and
       2. in respect of us:

          Andy Marcus

          51 Victoria Cres, Abbotsford, VIC 3067

          info@sproutsend.com.au

          +61(03)99992585

          +61(03)86794438

       Personal Information has the meaning given to that term under the Privacy Act 1988 (Cth).

       Personnel in relation to a party means that party’s officers, office-holders, committee, members, employees, contractors and subcontractors.

       Price List means our standard price list from time to time, which sets out our standard monthly subscription fee as well as the fees we charge for additional services and features that You may obtain through Your Account.

       Privacy Laws means all applicable privacy laws including the Privacy Act 1988 (Cth) and the Australian Privacy Principles.

       Services mean any services that we provide to You from time to time in connection with Your Account.

       Security Details means a log-in identification and password to enable you to access Your Account.

       Spam Laws means all applicable laws relating to the sending of electronic communications, including the Spam Act 2003 (Cth)

       Telephone Numbers means the telephone number(s) which we notify you of from time to time.