CyCX Web Connect Service Terms

Important

YOU SHOULD READ THESE TERMS CAREFULLY BEFORE PROCEEDING WITH AN ORDER FOR THE CYTRACK CYCX WEB CONNECT SERVICE.

Where you ('Customer', 'you', 'your') enter into an agreement with Cytrack Intelligence Systems Pty Ltd ABN 95 159 509 949 ('Cytrack', 'we', 'us') in accordance with Cytrack’s Terms and Conditions and you order the CyCX Web Connect service ('CyCX Web Connect Service' or 'Service'), these CyCX Web Connect Service Terms apply to your use of the CyCX Web Connect Service, together with Cytrack's Support Services Terms and Conditions.
Inconsistency. Where there is any inconsistency between:
1. the order form;
2. these CyCX Web Connect Service Terms;
3. the Terms and Conditions; and
4. the Support Services Terms and Conditions,
the document listed higher in the list will prevail over a document listed lower to the extent of the inconsistency.
Reliance on information provided. If Cytrack accepts your order for the CyCX Web Connect Service, it will be provided in accordance with the information you provided in the order form. Any variation to this information may incur additional charges and delays in providing the CyCX Web Connect Services.
Description. The CyCX Web Connect Services are more particularly described at https://www.cytrack.io/cycx-web-connect/.
Orders. No order is binding upon Cytrack until its acceptance is confirmed in writing by Cytrack, or Cytrack starts providing the Service(s) that are the subject of the order. Cytrack may reject an order, or part of an order, in its absolute discretion.
Defined terms. Capitalised terms used in this document have the meaning set out in clause 14.
Fixed Term, automatic renewal and minimum monthly spend
1. Customer agrees that the Services will be subject to:
  1. a fixed term as set out in the order form, commencing on the date Services are first supplied under the Agreement (Fixed Term); and
  2. a minimum monthly spend as set out in the order form (MMS).
2. At the expiration of the Fixed Term, the MMS will continue to apply.
3. If the Customer gives a notice of termination with respect to all CyCX Web Connect Services pursuant to clause 10(l), and the date on which the notified termination goes into effect falls before the end of the Fixed Term, then the Customer will become immediately liable to pay a cancellation charge (Cancellation Charge) equal to: the MMS amount multiplied by the number of months (including part months) between the date when termination of the Services will go into effect and the final day of the Fixed Term.
4. For clarity, if the Customer gives a notice of termination affecting only part, and not all, of the Services, all terms of the agreement constituted will continue to apply in full to the Services not terminated (including but not limited to the terms concerning the MMS).
5. Customer agrees that the Cancellation Charge is a reasonable estimate of Cytrack’s likely financial loss where Service(s) are terminated prior to the end of the Fixed Term.
6. For clarity, for any terminated Service(s), in addition to the Cancellation Charge, Customer will be liable to pay all fees and charges payable under the order and these terms and conditions with respect to the notice period (that is, the period starting on the date of Customer’s notice of termination and ending on the date when the notified termination goes into effect).
7. An additional fee may be payable in connection with any porting out of numbers, as advised by Cytrack in writing (including by email).
8. Subject to clause 7(i) below, at the end of the Fixed Term, the term of all Services will automatically renew (without the need for any further action by either party) for successive twelve (12) month periods, on and subject to these terms and those in the order form. Upon a renewal of the term under this paragraph, the new twelve (12) month term will become the “Fixed Term” for all purposes under the Applicable Terms.
9. If either party notifies the other in writing, at least 14 days before the end of the Fixed Term, that it wishes to terminate one or more Service(s) at the end of the Fixed Term (Termination Notice), then the Service(s) specified in such notice will not be automatically renewed. For clarity, if no Termination Notice is given on or before the date falling 14 days before the end of the Fixed Term, then the Fixed Term will automatically renew as set out in clause 7(h).
Key payment and billing terms
1. Unless the Due Date on an invoice states otherwise, all fees are due and payable within 7 days of receipt.
2. For any billing month, Cytrack may calculate the difference between the MMS and the actual fees and charges accrued by the Customer for that billing month, and apply the difference as a manual charge on the next billing month.
3. In any given month, Cytrack will allow the Customer to accrue monthly fees and call charges up to a maximum amount (if any) specified in the order form (Spend Limit). This spend limit amount is subject to credit approval. It is the Customer’s responsibility to ensure that it does not exceed its Spend Limit within any billing month. When a Customer becomes aware that they are approaching their Spend Limit, the Customer must contact Cytrack and pay all or a portion of their outstanding charges.
4. If during any billing month, the Customer’s monthly fees and call charges exceed 80% of the Spend Limit, Cytrack will issue to the Customer an interim invoice for an amount that, when paid, will reduce the Customer’s outstanding charges to an amount less than 40% of the Spend Limit (Interim Invoice). In the event that the Customer fails to pay the Interim Invoice within two (2) business days of the date of issue (and thereby reduce its outstanding charges to an amount that is less than 40% of its Spend Limit), this will constitute a material breach of this agreement and Cytrack reserves the right to suspend any or all of the Services upon 24 hours’ written notice to the Customer. Nothing in this paragraph shall remove the Customer’s obligation to pay a Monthly Invoice in accordance with this agreement.
5. Cytrack may review the Spend Limit from time to time. Cytrack may reduce the Spend Limit without prior written notice, but will not reduce the Spend Limit below the outstanding balance on the Customer’s account at the time of the reduction, without prior consultation with the Customer.
6. In the event of any default in payment to Cytrack the Customer will pay Cytrack its costs of and incidental to the recovery of such sums as may be due including all mercantile and like fees and legal fees and charges on a solicitor/own client full indemnity basis and any filing fees, stamp duty, taxes or any other fees payable, assessed or incurred in relation to such recovery process.
Key Customer Responsibilities
1. Customer to obtain licences and approvals. Customer agrees at all times it will hold any licence, consent or approval it is required to hold to lawfully provide the Services and/or any services to be connected to Customer in relation to the Services, and the Customer will fully comply with all conditions or requirements attached to any such licence, consent or approval.
2. Prevention of unauthorised use. Customer must take all practical steps to ensure that third parties do not gain unauthorised access to any Service. Customer is responsible for any misuse of a Service; including but not limited to paying any costs (including call costs) associated with such misuse. Customer will be liable in full for all fees and charges relating to the use of the Services, without deduction for any reason, including without limitation where caused by unauthorised or fraudulent use of the Services.
3. Fault reporting. Customer must report any faults in a Service in accordance with the procedure notified by Cytrack to Customer from time to time. Customer agrees that Cytrack will only respond to faults reported in accordance with such procedure. Cytrack reserves the right to charge Customer at Cytrack’s then standard rates for fault restoration services, if Cytrack responds to a fault notification from Customer and the reason for the notified fault is a matter for which Cytrack is not responsible.
4. Network Security. You acknowledge that the portion of the Cytrack network through which content will pass and the servers on which content will be stored will not be segregated or in a separate physical location from servers on which Cytrack’s other customers’ content is or will be transmitted or stored.
5. Content. You are and shall be solely responsible for the creation, editorial content, control, and all other aspects of content. You represent and warrant that you have obtained (or will obtain, prior to transmission to or via the Cytrack (or its suppliers) networks) all authorisations and permissions required to use and transmit the content over such networks as part of the Services.
6. Lawful Purposes. You agree that you will use the Services only for lawful purposes and in accordance with this agreement, and:
  1. you will not use the Services to transmit any illegal, fraudulent or offensive material;
  2. you shall comply with all applicable laws and regulations when using the Services, including without limitation, compliance with:
  3. applicable international export laws;
  4. any law, regulation, direction, order, code, policy or guideline applying to you (Applicable Rule) that concerns privacy, including (without limitation) any Applicable Rule concerning the recording of telephone calls; and
  5. other applicable laws regarding the transfer and/or transmission of data;
  6. you will not commit any fraud or wilful misconduct or unlawful act or omission in connection with your use of the Services; and
  7. you will not, in connection with your use of the Services, infringe any third party’s Intellectual Property rights.
7. Critical Applications. You acknowledge and agree that the Services and the Cytrack network are not designed, intended, authorised or warranted to be suitable for hosting life-support applications or other critical applications where the failure or potential failure of the Services or the Cytrack network can cause injury, harm, death, or other grave problems, including, without limitation, loss of aircraft control, hospital life-support systems, and delays in getting medical care or other emergency services. You acknowledge and agree that use of the Cytrack network and/or the Services to support such applications is fully at your own risk and that you assume all risk arising out of such use.
8. No Harmful Code. You represent and warrant to Cytrack that no content shall be knowingly transmitted by you or your end users through any electronic device or network owned or operated by Cytrack or its suppliers containing any Harmful Code.
9. Personal information you provide. You warrant that in relation to any personal information you provide in connection with the Service to Cytrack, that you have the necessary rights and consents to do so and that the collection, use, disclosure and handling of that information by Cytrack and its suppliers in the manner contemplated by this agreement will not breach any laws.
Services terms
1. Cytrack will provide the CyCX Web Connect Services to the Customer. Cytrack may from time to time vary the composition or characteristics of the network used to provide these Services including selection of the Carrier. Cytrack will provide services to the extent and standard of its suppliers and any of their Carriers.
2. The Customer must, in connection with its use of the Services, comply with all applicable laws, regulations, by-laws, standards, industry codes and license conditions of any government body.
3. The Customer acknowledges and agrees that Cytrack, its suppliers or any Carrier supplying to Cytrack may, at any point:
  1. be required to intercept communications sent via the Services; and
  2. monitor usage of the Services and communications sent over them.
4. The Customer acknowledges and agrees that Cytrack has no control over any underlying telecommunications carrier or the way in which such carrier supplies telephone numbers and telecommunication services. Cytrack does not guarantee call quality for the telephone number/s it supplies, and these numbers may be subject to call quality issues such as call delay, line noise and other similar issues. Cytrack will use its reasonable efforts to rectify call quality issues but makes no representation or warranty that it will be able to rectify such issues within a reasonable time or at all.
5. The Customer irrevocably and unconditionally authorises Cytrack to complete and sign, on the Customer’s behalf and in its name, any form or other authority required by the Customer’s Current Supplier in order to transfer the Customer's current account and/ or services.
6. Should it become necessary to change the arrangements with the Customer’s Current Supplier in order to provide Services to the Customer, such changes shall be made in accordance with clause 10(g).
7. Transfer from Cytrack to another Supplier
  1. In the event of the termination of any of the Services, if the Customer wishes to transfer one or more Services to another supplier:
    1. it must specify such request to Cytrack in writing;
    2. an administration fee will be payable to Cytrack, as follows: $40 for each number that the Customer requests Cytrack to transfer; and
  2. the Customer will nevertheless remain liable to Cytrack for any changes billed or payable under the Agreement until such time as the provision of all Services ceases.
  3. the Customer acknowledges and agrees that DID numbers supplied by Cytrack (e.g. numbers such as (02) XXXX-XXXX and (03) XXXX-XXXX) cannot under any circumstances be transferred to another supplier.
  4. The provision of Services ceases when Cytrack transfers the Customer’s account to another supplier and the other supplier takes over full responsibility for the billing of the relevant services.
  5. With respect to any transfer described in this sub-clause, if, after the date of such transfer, Cytrack becomes aware of any other charges which were duly incurred by the Customer in relation to the transferred Services at any time up to and including the date on which Cytrack ceased to provide the Services, then the Customer will, promptly upon receipt of Cytrack’s invoice, pay to Cytrack all such amounts.
8. Access
  1. The Customer is responsible for ensuring that its PABX or other network equipment is programmed, as specified by Cytrack.
  2. Should Cytrack, its suppliers or any Carrier need to install its own equipment at the Customer’s premises in connection with the provision of the Services, the Customer will not interfere with such equipment or its installation.
  3. The Customer will reasonably cooperate with Cytrack, its suppliers and any Carrier involved in the provision of the Services to allow Cytrack (and any such Carrier) to establish and supply the Services safely and efficiently. This includes following the reasonable requests of Cytrack and any Carrier supplying to Cytrack to provide the personnel of those entities with safe and prompt access to premises where the Services will be supplied and to relevant equipment, data and information and personnel.
  4. Any equipment at the Customer’s premises used to provide Services to the Customer through another supplier will be disconnected upon transfer to Cytrack. It is the Customer’s responsibility to notify their Current Supplier of the change in provision of their Services and to arrange forthwith the removal of any equipment.
  5. Risk of loss or damage to any equipment provided by Cytrack or any of its Related Bodies Corporate to the Customer from purchase or hire passes to the Customer upon delivery.
  6. Title to any equipment provided for purchase does not pass to the Customer until all amounts owing to Cytrack under the agreement and the cost of equipment has been paid in full. Until title passes to the Customer, the equipment will be held by the Customer as bailee for Cytrack.
  7. The Customer irrevocably grants to Cytrack, its suppliers and its agents a license, without the necessity of giving the Customer any notice, to enter at any time onto and into the premises of the Customer, using a reasonable force if necessary to inspect, search for and take possession of any equipment in respect to which payment is overdue. The Customer will indemnify Cytrack and hold Cytrack harmless against any loss or damage suffered by any person or persons arising from such repossession.
9. Customer’s obligations and commitments
  1. The Customer will be charged in advance for Services according to Cytrack’s current prices as published from time to time (including Cytrack’s international rate prices). Publication will be constituted by the creation of a new schedule of charges or part thereof.
  2. The Customer will not, in its use of the Services, breach any law, breach any person’s rights or otherwise cause loss, liability or expense to Cytrack, its suppliers or any Carrier.
  3. You are responsible for all usage charges in respect of the use of the Service whether or not such usage charges was authorised and including all usage charges in excess of your account balance or in excess of any credit extended to You. It is your responsibility to maintain security of the means of access to the Service and ensure unauthorised use does not occur. You are liable for all usage charges whether or not you have authorised the particular use of the Service by another person and you will continue to be liable for the usage charges if you allow another person to use the Service irrespective of whether you have authorised that person to use the Service
  4. Cytrack may vary, alter, replace or revoke the Agreement or any of its terms (including but not limited to the prices applicable to the Services) by giving written notice of such variation, alteration, replacement or revocation (each, a Change) to the Customer. Each Change will be effective upon the expiry of the 30 day period starting on the date that Cytrack gives the Customer written notice of the Change (Notice Period). If the Customer does not agree to the Change it may terminate the Agreement by notifying Cytrack in writing prior to the expiry of the Notice Period. Such termination will take effect upon expiry of the Notice Period. However, the Customer agrees that if it does not terminate the Agreement in accordance with this clause, then it will be bound in full by the Change on and from the expiry of the Notice Period.
  5. The Customer acknowledges that Cytrack may not be able to provide all Services required by the Customer and the Customer authorises Cytrack to select and engage any other suppliers and carrier to supply the Service on behalf of the Customer.
  6. Cytrack may include in any account rendered to the Customer any changes for Services provided to the Customer by any carrier that has been rendered to Cytrack.
  7. The Customer acknowledges that local calls may not be itemised in the account and agrees that Cytrack shall not be required to provide itemisation of local calls at any time.
  8. Cytrack will charge you $40 for each successful or failed/rejected port-in of a landline telephone number. You should ensure that all complex services (including but not limited to line hunt, DSL, diversions, ISDN) are completely removed from the landline telephone number before requesting Cytrack to port-in the number. Failure to remove all complex services may result in the port-in being rejected by the incumbent carrier.
  9. The Customer will comply with:
    1. all reasonable directions issued by Cytrack to assist it or any Carrier involved in the supply of the Services in complying with any applicable regulatory obligations, and in particular directions relating to:
      1. the provision of information to the police and other law enforcement agencies;
      2. the provision of information for directory purposes; and
      3. the provision of emergency services;
    2. all laws, regulations, directions, orders, codes and guidelines concerning privacy, including (without limitation) all laws, regulations, directions, orders, codes and guidelines applying to the recording of telephone calls; and
    3. all directions, orders, codes and guidelines issued by any regulatory body from time to time to the extent that such directions or orders may affect in any way the supply of the Services to the Customer.
  10. Customer undertakes to Cytrack that it will not transmit to or through any electronic device or network owned or operated by Cytrack or its suppliers or Carriers any Content containing any Harmful Code.
10. International Phone Lead Alert call tracking numbers
  1. If the Customer orders one or more Phone Lead Alert call tracking numbers in a foreign country (each an “international number”), Cytrack will use its commercially reasonable efforts to obtain the international number/s as soon as practicable, and to work with the underlying carrier on switched translations and testing, and the Customer agrees that the lead-time for the bringing of an international number/s into service should be approximately four to eight weeks. The Customer further agrees that each international number/s is subject to the availability of the international number/s provided by the underlying carrier and Cytrack cannot guarantee the continued availability of such international number/s.
  2. The Customer acknowledges and agrees that Cytrack has no control over how a foreign underlying carrier supplies international numbers and international telecommunication services. Cytrack does not guarantee the call quality of the international number/s which may be subject to call quality issues such as call delay, line noise and other similar issues. Cytrack will use its reasonable efforts to rectify call quality issues but makes no representation or warranty that it will be able to rectify such call qualities within a reasonable time or at all.
11. Salesforce Integration Service
  1. The Customer acknowledges and agrees that it requires a current and legal license to use the Salesforce Platform granted by Salesforce. Inc. (“Salesforce”) in order to utilize the Cytrack Call Tracking Salesforce Integration Application Service (the “Salesforce Call Tracking Integration Application”).
  2. Following the end of any minimum term requirements for a Salesforce Call tracking Integration Application set out in your order, the term of the service will automatically renew for one month periods unless terminated by either party by providing 30 days written notice to the other party.
  3. The Customer acknowledges and agrees that it will be liable for all service fees in relation to the Salesforce Call tracking Integration Application until that service is terminated in accordance with clause sub-clause (ii), regardless of whether or not the Customer’s licence to use the Salesforce Platform has been suspended or terminated by Salesforce.
  4. The Customer will contact Salesforce regarding any technical support required in relation to the Salesforce Call tracking Integration Application.
  5. In the event that Salesforce is required to transfer the Customer’s data outside the Salesforce Platform, Salesforce will be responsible for the privacy, security and integrity of that data.
12. Termination
  1. The agreement for the Service will commence on the date of Cytrack’s acceptance (whether in writing or by conduct) of the order for the Service, and will continue until either party gives 30 days’ written notice of termination to the other party. However, notwithstanding the foregoing sentence:
    1. if the Customer issues a notice of termination to Cytrack under this clause and the date on which termination is to take effect falls within the Fixed Term, the Customer is liable for the Cancellation Charges; and
    2. Cytrack may, by giving written notice to the Customer, terminate or suspend its agreement with Customer (either just in respect of the CyCX Web Connect Service Terms or in its entirety) forthwith and without prejudice to any rights or remedies existing at the date thereof if:
      1. the Customer has breached any term or condition of the agreement; or
      2. if the Customer fails to pay any invoice by the due date for payment and such invoice remains fully or partly unpaid for more than 14 days; or
      3. a receiver has been appointed over any of the property of the Customer; or
      4. a liquidator or provisional liquidator is appointed to the Customer; or
      5. the Customer enters into any arrangements with creditors; or
      6. the Customer assigns or otherwise deals with his rights under this agreement; or
      7. the Customer ceases to carry on business; or
      8. where the Customer is an individual, the Customer dies or becomes bankrupt, or there is a threat of the Customer becoming bankrupt; or
      9. there is a material change in the Customer’s direct or indirect ownership or control, which occurs without Cytrack’s prior written consent.
      10. Cytrack believes on reasonable grounds it is necessary to do so to comply with any law, regulation, order, guidance or request of any government or regulatory body and/or to attend to any emergency.
  2. In the event that the Carriers cease to provide any necessary services to Cytrack or its suppliers, Cytrack may, at any time, terminate the agreement in relation to the CyCX Web Connect Service with immediate effect by giving notice to the Customer. The Customer acknowledges that, if the agreement is terminated in accordance with this sub-clause and a Carrier arranges to supply the Customer other than through Cytrack or its suppliers, the Carrier may not be able to make those arrangements immediately and once the Carrier has made those arrangements the services acquired by the Customer from the Carrier may be acquired on the then applicable Carrier’s tariffs and terms and conditions and the Carrier will bill the Customer.
  3. On the termination of the agreement for any reason, the Customer will immediately return all equipment owned by Cytrack or make such equipment available for collection, such equipment will be returned or surrendered in the same condition that it was originally supplied, fair wear and tear excepted, any costs to remove or repair will be charged or billed to the account of the Customer.
Provision Of 1300, 1800 & 13 Services. All telephone numbers provided by Cytrack in connection with the use of the Service are registered to Cytrack (or its suppliers) and are provided for use while you are a Customer of the Service. The Customer acknowledges that it has no right, title or interest in any telephone numbers allocated to it by Cytrack as part of the Service. Although Cytrack makes every attempt to ensure continued availability of telephone numbers, Cytrack reserves the right to alter or replace any number as a result of compliance with any relevant legislation and in such case will notify the Customer of any numbering change that will affect the Service supplied to the Customer.
General provisions
1. Customer’s Acknowledgments
  1. The Customer acknowledges and agrees that it has relied on its own judgment to evaluate the suitability of the Service for the purpose for which it requires the Service.
  2. The Customer acknowledges that:
    1. the Services are not designed, intended, authorised or warranted to be suitable for making calls to emergency services; and
    2. it understands that the Services cannot and should not be used to make calls to emergency services.
  3. If you have entered into a Service Level Agreement with us that sets out Service Levels for a Service then Cytrack will endeavour to provide that Service in accordance with those Service Levels. Our liability for a failure to meet a Service Level will be as set out in that Service Level Agreement and you acknowledge this is your only remedy in relation to a failure by Cytrack to meet a Service Level.
2. Intellectual Property and data ownership.
  1. Each party retains ownership of all Intellectual Property rights: (i) owned by that party prior to the date of the agreement and (ii) developed by that party during the course of the agreement independently of the other party.
  2. Customer further acknowledges that except as specifically authorised under the agreement, Customer cannot, and will not, exercise, exploit, use or reproduce any of Cytrack’s Intellectual Property rights for any purpose.
  3. Customer retains the ownership of all information, including personal information and data, provided to Cytrack by or on behalf of Customer and Cytrack will have no Intellectual Property rights in such information or data. However, this does not restrict Cytrack from using aggregated and anonymised personal information and other data to improve the Services.
  4. Cytrack or its licensors owns the Intellectual Property rights in the Service and all materials supplied in connection with the Service. Nothing in this agreement shall be construed as transferring any Intellectual Property rights of Cytrack or its licensors to you. Except as otherwise expressly provided in our agreement with you, no part of any content or software on the Service may be copied, downloaded, recorded or stored in a retrieval system for any other purpose, nor may it be redistributed for any purpose, without the express written permission of Cytrack.
  5. Except for your informational, personal, non-commercial use as authorised above, you may not modify, reproduce or distribute the content, design or layout of the Service, or individual sections of the content, design or layout of the Service or Cytrack logos without our express written permission.
3. Cytrack reserves the right to modify the Service, and the rules and regulations governing its use, at any time, including where its suppliers do so. Any material modifications will be notified on the Website, and users are deemed to be apprised of and bound by any changes to the Service notified on the Website. Except with your prior consent, we will not make any such modifications that result in a material reduction in the functionality, performance, availability or security of the Services, or would have a material adverse impact on Customer's rights or obligations under the agreement.
4. In consideration of your use of the Service, you agree to:
  1. provide true, accurate, current and complete information about you, including, but not limited to, your email address, first and last name, and billing information, as prompted by the Service’s subscription forms (such information being the “Registration Data”);
  2. maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If You provide information that is untrue, inaccurate, not current or incomplete, or if Cytrack has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Cytrack has the right to suspend or terminate your use of the Service and any future use of the Service (or any portion of the Service). Cytrack staff members also have the right to request further information about any client data from the Customers. Should a Customer not wish to give out this information for any reason the Service may be terminated; and
  3. upon request for a Singapore telephone number, provide Cytrack with a copy of your Passport or Drivers License as well as a copy of the Passport or Drivers Licence of any of users who request a Singapore telephone number.
5. You are responsible for maintaining the confidentiality of your registration number and password and for all uses of your registration number or password and any and all related charges whether or not authorised by you.
6. Suspension of Service. Cytrack may without liability and with immediate effect suspend the Service under the relevant agreement:
  1. to perform necessary maintenance or other service work in connection the Service; or
  2. to perform emergency maintenance work provided that the need for carrying out such work
  3. does not arise as a result of the acts or omissions of the Customer;
  4. your account with us is not in credit or in sufficient credit to meet liability for payment of Fees under Your Agreement with Us.
7. Fees and payment. Unless otherwise provided in the order form, the following payment terms apply:
  1. Monthly Recurring Fees are payable monthly in advance by the Customer in respect of the Customer’s use of the Service in the immediately succeeding month. Call Charges are payable monthly in arrears by the Customer in respect of the Customer’s use of the Service in the immediately preceding month. Such Fees will be calculated at the rate as notified by Cytrack to the Customer from time to time.
  2. Cytrack reserves the right to vary its rates and charges in providing the Service at anytime without notice to the Customer, unless it has agreed to any fixed fees with you in the order.
  3. It is the Customer’s responsibility to ensure there is sufficient credit on the Customer’s nominated credit card or bank account to pay any amounts owing. In the event that the Customer’s nominated credit card is declined, or the Direct Debit is declined Cytrack will not extend any credit to the Customer and the Services to the Customer may be terminated forthwith by Cytrack without notice.
  4. If in any month the Customer’s account credit falls below $100, Cytrack will automatically deduct from the Customer’s nominated credit card or bank account an amount equal to the greatest monthly Call Charges incurred by the Customer over the preceding six months. Cytrack will send an email to the Customer when the Customer’s account credit calls below $100 notifying the Customer that the account credit has fallen below $100 and the amount deducted from the Customer’s credit card or bank account
  5. Payment of an invoice must be made by the date specified in the invoice, or otherwise in accordance with clause 8(a) (Due Date). If the Customer disputes in good faith an amount in the invoice, the Customer must still pay the whole amount of each invoice (including the disputed amount) by the Due Date, and the parties will use reasonable endeavours to discuss in good faith to resolve the dispute. If it is determined that the invoiced amount paid was incorrect, an adjustment note will be issued which may be applied to the Customer's next invoices or if there are no future invoices, refunded to Customer.
  6. If the Customer does not pay any invoice by the Due Date then Cytrack may charge:
    1. a late payment fee of $25; or
    2. interest at the rate of three percent (3%) per month or part thereof on the outstanding amount of the invoice, from the Due Date up to the date that Cytrack receives payment,
    whichever amount is greater. In addition, Cytrack may suspend any or all of the Customer’s Service pending payment of outstanding amounts on the invoice. Nothing in this clause affects Cytrack’s rights to terminate the agreement.
  7. If the Customer has not paid by the Due Date, Cytrack reserves the right to adjust the prices at its discretion.
  8. The Customer is responsible for payment of the recordings to be used as part of the Services.
8. Customer’s use of Service
  1. (i) The Customer will not use, and must use all reasonable endeavours to ensure that others within its control do not use, the Service:
    1. for any purpose that is defamatory, offensive, abusive, obscene, menacing, threatening, harassing, or illegal;
    2. for any (other) unlawful purpose;
    3. to do any act that may damage the network or systems or cause the quality of the Service to be impaired;
    4. to engage in any activities in such a manner that is reasonably likely to expose Cytrack or its suppliers to liability;
    5. in a manner that does not comply with the terms of any legislation or licence applicable to the Customer.
  2. The Customer will comply (and will procure that each of its customers and any third party user of a Service complies) with:
    1. all reasonable directions issued by Cytrack to assist it, its suppliers or any Carrier involved in the supply of the Services in complying with any applicable regulatory obligations, and in particular directions relating to:
      1. the provision of information to the police and other law enforcement agencies;
      2. the provision of information for directory purposes; and
      3. the provision of emergency services;
    2. all laws and regulations, directions, orders, codes and guidelines concerning privacy, including (without limitation) all laws, regulations, directions, orders, codes and guidelines applying to the recording of telephone calls; and
    3. all directions, orders, codes and guidelines issued by any regulatory or industry body from time to time to the extent that such directions, orders, codes and guidelines may affect in any way the supply of the Services to the Customer.
9. Customer Indemnities.
  1. The Customer must fully indemnify and hold harmless Cytrack, its suppliers (including any Carrier) involved in the supply of the Services and each of their respective Related Corporations (those indemnified) from and against any and all Loss, damages, costs and/or expenses (including legal costs assessed on a solicitor-client basis) which those indemnified may suffer or incur in connection with:
    1. any breach of the agreement by the Customer;
    2. any fraud by the Customer or any third person associated with the Customer who uses or purports to use the Services, including the transmission of any illegal, fraudulent or offensive material via the Service;
    3. any fraud or wilful misconduct or unlawful act or omission of Customer or any third person associated with the Customer who uses or purports to use the Services;
    4. any infringement or non-compliance by the Customer, any of the Customer’s customers or any third party user of a Service of any law, regulation, direction, order, code or guideline concerning privacy, including (without limitation) any law, regulation, direction, order, code or guideline applying to the recording of telephone calls;
    5. any damage to or loss of any equipment, network or other tangible property of those indemnified or any third party to the extent that such loss is caused by a negligent act or omission by the Customer or any person under its control;
    6. an action or claim brought by a third party against any of those indemnified which relates to Customer’s use of the Services, or any negligent act or omission of the Customer or any of person under its control in relation to this agreement;
    7. any infringement of a third party’s Intellectual Property rights in connection with the use of the Services by Customer or any third person associated with the Customer who uses or purports to use the Services.
  2. In addition, the Customer will indemnify Cytrack against any Loss, damage, cost and/or expenses (including legal costs assessed on a solicitor-client basis) which Cytrack suffers or incurs in connection with an action or claim brought by the Customer or any third person associated with the Customer against any of our suppliers (including a Carrier) that is involved in the supply of the Services, in connection with the use of the Services by Customer.
  3. The Customer’s indemnities under this agreement are:
    1. continuing, separate and independent obligations of the Customer; and
    2. absolute and unconditional and unaffected by anything that might have the effect of prejudicing, releasing, discharging or affecting in any other way the liability of the Customer.
  4. It is not necessary for a party to incur an expense or make a payment before enforcing an indemnity.
  5. Where Customer provides an indemnity or undertaking or assumes some other obligation in favour of other persons who are not a party to this contract (“third party beneficiaries”), it is agreed that:
    1. the benefit of the indemnity, undertaking or obligation is held on trust by Cytrack for and on behalf of each of the third party beneficiaries; and
    2. Cytrack may enforce and recover under the indemnity, or otherwise enforce the undertaking or other obligation, for and on behalf of those third party beneficiaries.
10. Force Majeure. Cytrack will not be liable or deemed to be in default of any of its obligations under its agreement with the Customer for any default, failure or delay resulting directly or indirectly from a Force Majeure event.
11. Confidentiality of customer accounts. You will provide us with full access and management rights to your computer systems and networks to the extent required for us to provide you with the CyCX Web Connect Services. By accepting these terms and conditions, the Customer agrees that any member of Cytrack’s support team, together with any person assigned to the Customer by Cytrack in the role of Account Manager, may access:
  1. the Customer’s account with Cytrack; and
  2. all data captured and stored by or on behalf of Cytrack for the Customer in connection with the performance of the Services,
  as may be necessary from time to time in order for Cytrack to provide the Services, address any technical issues, manage the Customer’s account, provide the Customer with insights with respect to the relevant data, respond to any query from the Customer, or otherwise fulfil any obligation owed by Cytrack to the Customer or meet any requirement specified by the Customer. Cytrack may share such information on a confidential basis with its suppliers and personnel to the extent required to perform the Services and otherwise exercise its rights and perform its obligations under this agreement, or where required by law to do so.
12. Press releases and use of logos.
  1. Both parties may issue press releases announcing the supplier-customer relationship between Cytrack and the Customer, together with such other press releases as may be mutually agreed to from time to time. Each party shall have the opportunity to review and approve each press release prepared by the other party prior to its issuance, provided that such approval is not unreasonably withheld or delayed.
  2. Each party (Party A) may use the other party’s name, trademarks and logos in press releases, product brochures and similar marketing materials, financial reports and prospectuses indicating that that other party is a customer or supplier (as the case may be), of Party A, provided that Party A has received from the other party prior approval of each such use of the other party’s name, trademark and/or logo. The approval of the other party must not be unreasonably withheld or delayed.
13. WARRANTIES, DISCLAIMERS AND LIMITATIONS ON LIABILITY. NOTHING IN THESE TERMS LIMIT OR EXCLUDE ANY WARRANTIES OR GUARANTEES THAT CANNOT BE EXCLUDED OR LIMITED BY LAW (see the Terms and Conditions in relation to the warranties, disclaimers and our limitations on liability). Without limiting the foregoing, and only to the extent permitted by applicable law:
  1. THE SERVICES AND ALL CONTENT ARE PROVIDED BY CYTRACK AND ITS SUPPLIERS "AS IS" "AS AVAILABLE" BASIS WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE DISCLAIMED BY CYTRACK AND ITS SUPPLIERS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW CYTRACK AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR OTHER DAMAGES;
  2. Cytrack makes no warranty as to the accuracy, completeness, currency, or reliability of any content available through the Service. You are responsible for verifying any information before relying on it. Use of the Service and the content available on the Service is at Your sole risk;
  3. Cytrack makes no representations or warranties that use of the Service will be continuous, uninterrupted or error-free. Cytrack will endeavour to keep the Service operating but will not be liable if the Service is suspended or interrupted or contains errors;
  4. you are responsible for taking all necessary precautions to ensure that any content you may obtain from or in connection with the Service is free of viruses.
  5. to the maximum extent permitted by law, Cytrack has no liability to Customer or any other person, for:
    1. the acts or omissions of any third party who is not under the control or direction of Cytrack, including any Carrier involved in the supply of the Services;
    2. faults or defects in the Services which are caused by conduct of or misuse by the Customer or any or any third person associated with the Customer in breach of this agreement;
    3. faults or defects that arise in telecommunication services provided to Customer other than under the agreement, being telecommunication services not controlled by Cytrack (and even if those services are related to the Services);
    4. faults or defects in the Services that arise due to any equipment or property owned or leased by Customer or otherwise within the control of the Customer; or
    5. loss or corruption of data, howsoever caused (including due to the negligence of Cytrack or its suppliers).
14. Assignment. The Customer may not assign any of its rights or obligations under these terms without the prior written consent of Cytrack.
Confidentiality. You must only use information provided by us to you (including, without limitation, information concerning Cytrack’s fees and charges) (Confidential Information) for the purpose of utilising the Services, and not for any other purpose. The Confidential Information must be kept confidential by the Customer and must not be disclosed or distributed to any third party by the Customer or by any of its officers, agents, contractors or employees. It is the Customer's responsibility to ensure that only properly authorised employees have access to Confidential Information.
Definitions. Unless the context indicates otherwise, in these terms:
1. “Call Charges” means the usage fees applying to the Customer’s use of the Service(s) from time to time. Each usage fee is:
  1. based on the per call or per minute rate(s) applying to the Service(s), plus GST;
  2. calculated in 60 second units; and
  3. rounded up to the nearest whole cent.
2. “Carrier” means a telecommunications carrier licensed under the Telecommunications Act 1997 (Cth) as a general carrier or a public mobile telecommunications carrier.
3. “Content” means data, information, files, software, scripts, images, graphics, audio, video, text, and any other object or information, whether in written or audio form (e.g. voice messages).
4. “Current Supplier” means a Carrier, telecommunications service provider or equipment supplier who supplies telecommunications services or equipment to the Customer at the time of signing the document.
5. “Fee” means each of:
  1. the Monthly Recurring Fee; and
  2. the Call Charges.
6. “Force Majeure” means any circumstance beyond the control of Cytrack whereby Cytrack is unable to perform an obligation under its agreement with You either at all or at any time or from time to time including:
  1. Internet access failure caused by, amongst other things, any third party action that results in denial of service or access;
  2. any regulation, law, restriction, action or inaction of any governmental agency;
  3. industrial action or labour disturbance;
  4. interruption, suspension or cancellation of any telecommunications service provider;
  5. any act of God or act of nature, requirement or restriction of governmental authorities, inability or delay in the grant of governmental or other approvals, consents, permits, licences or authorities;
  6. any act or omission of a third party which affects the provision of the Service.
7. “Harmful Code” means any program, routine or device which is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, including without limitation, any ‘time bomb’, virus, drop dead device, malicious logic, worm, Trojan horse or trap or back door.
8. “Intellectual Property” includes any: copyright; design, patent, trademark, logo, circuit layout owned and or used by Cytrack or its suppliers or licensors (and whether registered, unregistered or applied for) used in connection with the Service; trade, business, company or domain name; know-how, techniques, methods, inventions, processes, confidential information (whether in writing or recorded in any form used established and or developed by Cytrack or its suppliers or licensors from time to time in connection with the Service); manuals or practices used in connection with the Service; and any and all other proprietary, licence or personal rights arising from intellectual activity in or used in connection with the Service and all improvements and modifications to any of them.
9. “Loss” means any loss, cost, liability or damage, including reasonable legal costs on a solicitor/ client basis.
10. “Monthly Recurring Fee” means the monthly administration fee to which Cytrack is entitled in payment for the Service, as notified to the Customer from time to time.
11. “Related Corporation” means, with respect to an entity, a body corporate that is related to that entity in any of the ways specified in section 50 of the Corporations Act 2001 (Cth).
12. “Service” means any service that Cytrack supplies to you under these Cytrack CyCX Web Connect Service Terms, and may include an internet-based interface for creating interactive audio and speech content that can be accessed via telephone. “Services” may also include Cytrack’s interactive telephone service known as ‘The Receptionist’, and any other services that Cytrack may make available to You from time to time under these Cytrack CyCX Web Connect Service Terms.
13. “Service Levels” means the levels of service (if any) in respect of a Service as set out in a Service Level Agreement.
14. "Service Level Agreement", if any, is referred to on the order form.
15. “Website” mean the following website at the URL: https://www.cytrack.io/.
16. words not defined in this document and which have a defined meaning under the Telecommunications Act 1997 (Cth) have the meaning given under that Act.

Version CQT368-1-280521