Last amended: 30 January 2009
Version: v001
The website located at www.bigtincan.com (the "Website") is owned and operated by BigTinCan Limited (ABN 43 133 910 773) ("BigTinCan"). BigTinCan is a company incorporated in New South Wales, Australia, with its registered office located at 1/59 Parraween Street, Cremorne, NSW 2090, Australia. If you wish to contact BigTinCan for any reason, please use the relevant contact details set out at the end of these Terms of Use.
The Website provides you with access to and/or information regarding various telecommunications applications, products and/or services made available to you by BigTinCan through or in connection with the Website (collectively the “Services”).
In order to access and/or use the Website and/or the Services, you may be required to access, use and/or download various software programs, content, documentation and materials (including any updates or new release of the foregoing), which are owned by BigTinCan (or is licensors) (collectively the “Software”).
These Terms of Use are deemed to incorporate the provisions of BigTinCan's Privacy Policy (which is available on the Website and which you should read together with these Terms of Use) and any Service or Software specific terms and conditions that you are required to accept prior to access or using any Services or Software (“Additional Terms and Conditions”). The Terms of Use, the Privacy Policy and the Service Specific Terms and Conditions are referred to collectively as the “Agreement”.
The Agreement is a legally binding contract between you and BigTinCan regarding your access and use of the Website, Services and Software. Please read carefully and review all of the terms, conditions and statements made within the Agreement and throughout the Website, before consenting to the Agreement.
If you register with BigTinCan or access or use any of the Website, Services or Software you are hereby deemed to agree to be legally bound to and become a party to the Agreement and any other terms and conditions contained throughout the Website.
If you do not agree with or to be bound by any or all of the terms and conditions of the Agreement, do not register with BigTinCan and do not access or use the Website, Services or Software.
BigTinCan may modify this Agreement, including its rates or any terms or conditions, at any time by posting such modification on the Website and such modification shall be deemed effective immediately upon posting of the modified Agreement.
You agree to review the Agreement and Website regularly as there may be modifications.
Your continued access or use of the Website, Services or Software shall be deemed your acceptance of the modified Agreement.
BigTinCan may also make changes to the Website, Services or Software at any time without notice.
BigTinCan reserves the right to change or update information on the Website without notice.
To register with and become a member of BigTinCan (“Member”), you must:
· Be at least eighteen (18) years of age (persons under the age of eighteen are not permitted to become Members or to use the Services or Software);
· Provide BigTinCan with a valid mobile phone number and email address; and
· Enter a password (which you must keep confidential and secure and not disclose to any other person).
If you are already a Member and you wish to purchase Services from BigTinCan, you must:
· Provide us with personal details that are true and current as requested from time to time including your mobile phone number, email address, and valid payment details which may be validated against the address held for that account;
· Update BigTinCan if at any time your personal details change through the Settings section of this Website.
BigTinCan may refuse any application to become a BigTinCan Member or any request to access or use the Website, Services or Software for any reason whatsoever.
Please note that by supplying your mobile telephone number and email to BigTinCan, you are deemed to grant BigTinCan permission to contact you via such mobile telephone number regarding your account and any special offers or promotions that BigTinCan may offer you from time to time.
Details of the various Services are available from the Website, or as otherwise notified or advertised by BigTinCan from time to time.
As noted above, the Agreement incorporates any Additional Terms and Conditions that may be applicable to your access to or use of any Services or Software. Accordingly, you should carefully read all relevant materials before accessing or using (including purchasing or subscribing to) any Service.
BigTinCan will endeavour to make the Services available to you, however, Services are subject to availability and capacity of the Website, the Services, the Software, Internet connections and third party telecommunications vendors, and are not guaranteed by BigTinCan to be available to you.
You agree to use the Website, Services and Software only for lawful purposes. You are prohibited from posting on or transmitting through the Website, Services or Software any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically or otherwise objectionable material of any kind, including any material that encourages conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law.
If BigTinCan is notified of allegedly infringing, defamatory, damaging, illegal or offensive content provided by you, BigTinCan may investigate the allegation and determine in its sole discretion whether to remove or request the removal of such content from the Website, Services or Software. BigTinCan reserves the right to prohibit conduct, communication or content that it deems in its sole discretion to be harmful to individual users, BigTinCan, the communities that make up BigTinCan, or any rights of BigTinCan or any third party, or to violate any applicable law.
General
· The call recording facilities that BigTinCan provides as part of the Services have strict legal implications for their use. These implications can and do vary from country to country, and are subject to change at any time. By utilising the Services you agree that you are aware of the legal implications of using the Services in your location and the location being called, and you agree to comply with all laws applicable to your use of the Website Services and Software.
Definitions
· Caller - the BigTinCan customer placing the call
· Recipient - the person answering the BigTinCan called phone number
· Third-party - any person other than the Caller or Recipient
Your Agreement
· You are aware that outgoing calls will be recorded
· You agree to be a party to the call being recorded
· You agree that the recording is for your own personal use
· You agree to not make the recording available to any third party
· You agree to notify the Recipient at the start of the call that the call will be recorded and will give them the option to decline, upon which you should hang-up, disable call recording, and call the Recipient back
· You are aware of the legal standing of the use of this setting in your location and the Recipient's location and you will indemnify and hold harmless BigTinCan at all times and in all locations where the Services are being utilised
· By using the Services you agree to all of the above statements
· If you are unsure of your obligations you should not agree to these terms during the registration process and you should subsequently not use the call recording service for outgoing calls
By providing your credit card or PayPal details to BigTinCan, you authorize BigTinCan to charge your credit card or PayPal account the relevant fees and charges as requested by you.
You represent that the information you submit is true and accurate, and you agree to pay all charges and fees incurred.
BigTinCan will commence providing Services to you on the date your credit card is charged and will continue to provide such Services whilst credit exists on your account.
Unless expressly stated otherwise, all amounts payable under or in connection with the Agreement, included any amounts stated on the Website, are exclusive of Australian GST and any other taxes, which, if applicable, shall be payable by you at the rate prevailing at the time in addition to the relevant fees and charges payable for the Services.
Call records will be made available on the Website as soon as practicable. You have 30 days from the date of your monthly statement to report any discrepancy otherwise you will have been deemed to have accepted the accuracy of the statement.
All fees and charges will be billed to your nominated credit card or PayPal account. We will recover our costs from you in the event that your payment method is deemed invalid for the period we provide services to you covered by this invalid payment.
Charges for hardcopy invoices may apply.
During callback, no refunds are accepted when the second leg of the call is unreachable for any reason.
You, and not BigTinCan, are responsible for paying any amounts billed to your credit card or PayPal account by a third party which were not authorised by you.
No refunds will be given to you under any circumstances, except when either, you or BigTinCan cancels your account subscription.
Nothing in the Agreement (including this section titled “Payments”) is intended to exclude or vary your statutory rights to the extent that the same are prohibited from being excluded or varied as a matter of applicable law.
BigTinCan (and its licensors) shall retain all right, title and interests in its trade names, logos, trademarks, service marks, trade dress, copyrights, websites, domain names and proprietary technology (collectively "Marks"), which shall remain the exclusive property of BigTinCan (or its licensors), and nothing in the Agreement shall grant you the license to use such Marks.
All intellectual property rights in the Software, including, but not limited to, all copyrights, patents, technology secrets, audio, images and text incorporated into the Software are owned by BigTinCan (or its licensors) and are protected by various laws and international treaty provisions relating to the protection of intellectual property rights.
BigTinCan shall retain all intellectual property and other rights in the Website, Services and Software and in its Marks, including, but not limited to, ownership and proprietary rights.
You may not reverse-engineer, decompile or disassemble the Website, Services or Software in any way, except to the extent permitted by applicable law.
The boundaries contained herein apply equally without stipulation to any updates or new BigTinCan products that may be periodically provided or made available to you by BigTinCan.
Upon registering with BigTinCan and subject to the terms of this Agreement, BigTinCan grants you a non-exclusive, revocable, right and licence to use (but not modify or amend) the Website, Services and Software, including the right to download, install and use the Software on your own phone, computer, or PDA, solely for the purpose of you engaging in personal or business communications for your own benefit.
You make the Website, Services and Software available solely for use in accordance with the terms and conditions of the Agreement. You may not re-sell or sub-licence the Website, Services or Software to any third party under any circumstances.
Any reproduction or redistribution of the Services or Software not in accordance with the terms and conditions of the Agreement is forbidden.
You may not share, divulge or otherwise distribute the user name and password that is associated with your account to any other person. This, and any other use of the Website, Services or Software that is inconsistent with the terms and conditions of the Agreement, may result in the termination of your account by BigTinCan without notice and without a refund being given.
Links available on the Website may enable you to leave the Website.
The linked websites contain other terms and conditions, are not under the control of BigTinCan and BigTinCan is not responsible for the contents of any linked website or any link contained in a linked website, or any changes or updates to such websites.
BigTinCan is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by BigTinCan.
BigTinCan may advertise products and services provided by third parties. These third party products and services are advertised only as a matter of convenience and are not under the control of BigTinCan. BigTinCan is not responsible or liable for the contents, quality, performance or terms of use of any such third party products or services.
BigTinCan cannot and does not guarantee or warrant that the Website, Services or Software will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties.
You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Website, Services and Software for the reconstruction of any of your data or information that may be lost as a result of any viruses, worm, Trojan horse, etc, or any failure of the Website, Services or Software.
You are responsible for taking precaution to ensure that whatever Services or Software you select for your use are free of viruses, worms, Trojan horses and other items of a destructive nature.
To the maximum extent permitted by applicable law, BigTinCan disclaims all warranties, expressed or implied, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement with respect to the Website, Services and Software and any transaction performed through the Website, Services or Software or on the Internet generally.
You assume total responsibility and risk for your use of the Website, Services and Software.
The Website, Services and Software are provided by BigTinCan on an "as is" basis.
BigTinCan does not warrant that the Website, Services or Software will be uninterrupted or error-free, that the Services will operate without any packet loss or interruption, or that any defects in the Website, Services or Software will be corrected.
BigTinCan makes no representations or warranties as to the quality of any call or any connection via or to or any transmission over the Internet.
If the Trade Practices Act 1974 (Cth) (“TPA”) or any other legislation in any jurisdiction implies a condition or warranty into the Agreement in respect of goods or services supplied, and BigTinCan's liability for breach of that condition or warranty may not be excluded but may be limited, the exclusions and limitations of liability in the Agreement do not apply to that liability and instead BigTinCan's liability for any breach of that condition or warranty is limited to:
· in the case of a supply of goods, BigTinCan doing any one or more of the following (at its election):
o replacing the goods or supplying equivalent goods;
o repairing the goods;
o paying the cost of replacing the goods or of acquiring equivalent goods; or
o paying the cost of having the goods repaired; and
· in the case of a supply of services, BigTinCan doing either or both of the following (at its election):
o supplying the services again; or
o paying the cost of having the services supplied again.
· Nothing in the Agreement is intended to exclude, restrict or modify rights which you may have under the TPA or any other legislation in any jurisdiction which may not be excluded, restricted or modified by agreement.
You assume the entire cost of any damage resulting from the information contained in or compiled by the Website, Services or Software.
To the maximum extent permitted by applicable law, you acknowledge that BigTinCan and its suppliers or licensors will not be liable for:
· any loss or damages whatsoever (including incidental, indirect, special or consequential damages, damages for loss of profits, business interruption, loss of programs or information, or other pecuniary loss) arising out of your use of or your inability to use the Website, Services or Software or any transactions provided on the Services or downloaded or hyperlinked from the Website, even if BigTinCan has been advised of the possibility of such damages; or
· any claim attributable to errors, omissions or other inaccuracies in the Services or Software and/or materials or information downloaded through, or hyperlinked from, the Website,
howsoever arising, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, under or in connection with the Agreement.
Your sole and exclusive remedy under or in connection with the Agreement shall be for you to discontinue your use of the Website, Services and Software.
In the event that the above exclusions and limitations of BigTinCan's liability are illegal, void, invalid or unenforceable as a matter of applicable law, BigTinCan's liability shall be excluded and/or limited to the maximum extent permitted at law or, otherwise, to $10 in aggregate for all claims made by you under or in connection with the Agreement.
Notwithstanding any other provision of the Agreement, BigTinCan shall not be deemed to be in breach of the Agreement or otherwise liable to you as a result of any delay or other failure in the performance of its obligations under the Agreement if and to the extent that such delay or other failure is caused by or arises from any event or circumstance not within the reasonable control of BigTinCan, and the time for performance of the relevant obligation(s) shall be extended accordingly.
You agree to indemnify, defend and hold harmless BigTinCan, its officers, directors, employees, agents, shareholders, licensors, suppliers and any third party information providers to the Website, Services or Software from and against all losses, expenses, damages and costs, including attorneys' fees, resulting from any violation by you of the Agreement or asserted by any third party due to or arising out of your use of or conduct on the Website, Services or Software.
The provisions of this paragraph are for the benefit of BigTinCan and its officers, directors, employees, agents, shareholders, licensors, suppliers and any third party information providers to the Website, Services or Software. Each of these individuals or entities shall have the right to assert and enforce these provisions directly against you on its own behalf.
BigTinCan reserves the right to terminate the Website, Services and/or Software offered by BigTinCan and/or your use of the Website, Services or Software at any time without notice and for any or no reason.
You may request cancellation of your subscription at any time by contacting BigTinCan using the contact details set out below. You acknowledge that it will take at least 30 days, but no more than 90 days, from BigTinCan's receipt of your cancellation request for BigTinCan to disconnect you from the Services and that your account will incur fees and charges as normal during this period. All refunds will be made by way of credit back to the original credit card or PayPal account.
BigTinCan will refund unused credit to your credit card at an amount remaining when BigTinCan disconnects you from its Services.
You can terminate the Agreement at any time simply [by ceasing to use the Website, Services and Software]; Termination may also occur as your membership and/or account expire; however, the provisions of this Agreement shall survive such termination
The Agreement is governed by the laws of Australia and the state of New South Wales, without reference to conflict of laws principles. Any dispute between you and BigTinCan regarding this Agreement will be subject to the non-exclusive venue of the state and federal courts in the state of New South Wales.
The Agreement is the entire agreement between you and BigTinCan and supersedes any other communications or advertising with respect to the Website, Services or Software.
If any provision of the Agreement is held to be illegal, void, invalid or unenforceable under the applicable laws of any jurisdiction, the legality, validity and enforceability of the remainder of the Agreement in that jurisdiction will continue in full force and effect, and the legality, validity and enforceability of the whole of the Agreement in any other jurisdiction shall not be affected.
The rights, powers, privileges and remedies provided under any provision of the Agreement are cumulative and are not exclusive of any rights, powers, privileges or remedies provided under any other provision of the Agreement or by applicable law or otherwise. BigTinCan's failure to insist upon or enforce strict performance of any provision of the Agreement shall not be construed as a waiver of any provision or right. No single or partial exercise of any right, power privilege or remedy under the Agreement shall prevent any further or other exercise thereof or the exercise of any other right, powers, privilege or remedy.
Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement.
BigTinCan may assign, novate, transfer, sub-contract or otherwise dispose of any or all of its rights and/or obligations under the Agreement to any third party at any time without notice to you.
You may not assign, novate, transfer, sub-contract or otherwise dispose of any or all of your rights and/or obligations under the Agreement without the prior written consent of BigTinCan (which may be withheld in BigTinCan's absolute discretion).
In the Agreement, unless the context requires otherwise:
· references to any legislation, statute or statutory provisions includes a reference to those provisions as amended or re enacted or as their application is modified by other provisions from time to time and any reference to a statutory provision shall include any subordinate legislation made from time to time under that provision;
· any phrase introduced by the words “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words;
· references to the singular include the plural and to the masculine include the feminine, and in each case vice versa; and
· a reference to '$' or 'dollars' is a reference to Australian dollars.
The headings and sub-headings in the Agreement are inserted for convenience only and shall not affect the meaning of the Agreement.
If you wish to contact BigTinCan for any reason, please do so through www.bigtincan.com or email support@bigtincan.com
The Website is owned and operated by BigTinCan Limited (ABN 43 133 910 773) ("BigTinCan"). BigTinCan is a company incorporated in New South Wales, Australia, with its registered office located at 1/59 Parraween Street, Cremorne, NSW 2090, Australia. If you wish to contact BigTinCan for any reason, please use the relevant contact details set out at the end of this Privacy Policy.
Capitalised words and phrases used but not defined in this Privacy Policy have the meanings ascribed to them in the Terms of Use.
This Privacy Policy is deemed to be incorporated into the Agreement between you and BigTinCan.
BigTinCan collects the personal information that you may volunteer while using the Website, Services or Software.
For example, upon registration, users are required to provide their email address and password. If you choose to register with and become a Member of BigTinCan, you will be able to take advantage of all of the features of the Website and to use or purchase, as applicable, the Services and Software.
In order to use the credit card facilities to top-up their BigTinCan account, member must supply their correct full name, mobile telephone number and postal address to match the mailing address of the credit card being used.
BigTinCan may also collect information about you from other sources, such as public records or bodies, or private organisations.
Upon registration, all Members are deemed to grant to BigTinCan their explicit permission to contact them with important information about the Member's account and updates to the Website, Services and Software, and BigTinCan's policies and business practices.
Please note that any linked websites (i.e. websites that you link to from the Website, Services or Software or websites that link you to the Website, Services or Software) are not under the control of BigTinCan and BigTinCan is not responsible for the conduct of companies who own or operate linked websites. Accordingly, before disclosing your personal information on any other website, BigTinCan recommends that you to carefully examine its terms and conditions of use and privacy policy.
BigTinCan logs personal information by automatic means or BigTinCan links information logged by automatic means with personal information about specific individuals.
BigTinCan's primary, but not only, means of doing this is through the use of “Cookies”.
A Cookie is a piece of text that can be entered into the memory of your hard drive and can store information about your use of the Website, Services and Software.
Cookies assist BigTinCan to make the Website, Services and Software more convenient, personalised and secure.
In addition, Cookies assist BigTinCan to keep track and retrieve information about any Member who acts in contradiction to its Agreement with BigTinCan.
You can delete Cookies from your computer at your sole discretion.
If you do not register with BigTinCan via the Website, then the information that BigTinCan collects from you will be limited. BigTinCan logs your IP address in order to help diagnose problems with BigTinCan's servers, administer the Website and track usage statistics. Your IP address may vary each time you visit, or it may be the same, depending on the type of internet connection that you access the Website with. Either way, it would be extremely difficult for us to identify you through your IP address, and BigTinCan makes no attempt to do so. If you reach the Website by clicking on a link or advertisement on another internet website, then BigTinCan also logs that information. All of this information is collected and used only in the aggregate; that is, it is entered into BigTinCan databases, where BigTinCan may use it to generate overall reports on visitors to the Website, but not reports about individual visitors.
Personal information that BigTinCan collects may be utilised for the legitimate purpose of running BigTinCan's business, including (without limitation):
· technical administration (e.g. the continued provision of the Website, Services and Software to you);
· research and development (e.g. maintaining and improving the functionality and quality of the Website, Services and Software);
· customer administration;
· marketing (e.g. where agreed by you, for the purpose of bringing advertiser sponsored calls, messages and offers to you, as part of the BigTinCan Opener service); and
· trading in personal information
BigTinCan will protect your confidential information in a manner that is consistent with this Privacy Policy and all applicable laws.
If you cancel your account (by sending your request to support@bigtincan.com), or it is terminated by us, your data will be deleted from BigTinCan's databases, however, you should be aware that certain residual information, such as access logs and other records, may still continue to reside within BigTinCan's live and archived databases.
BigTinCan may share your personal information with third party organisations, including (without limitation):
· with its affiliated entities;
· with third party vendors, suppliers and subcontractors (such as website hosting companies and credit card / payment processors) for the purpose of providing you with the Website, Services and Software;
· with unrelated third party entities for the purpose of such entities contacting you from time to time about their products and services which they believe that you may find valuable or of interest;
· when required by law, such as when BigTinCan responds to subpoenas, court orders or legal process; and
· when BigTinCan believes it reasonably necessary in order to investigate, prevent, or take action regarding illegal or improper activities, suspected fraud, potential threats to the rights, property or safety of BigTinCan, its users or others, or violations of the Agreement,
wherever such persons are located in the World, including, for example, the United States of America. Please be aware that the laws of some countries may not provide the same level of protection for your personal information as the laws of Australia and New South Wales.
If you have chosen to opt-in to the BigTinCan Opener program to receive free or low cost advertising sponsored calls, messages and offers, the personal information you provided, including, but not limited to, your email address, gender, age group, occupation status, education level, and online shopping habits, may be passed on to BigTinCan's sponsors or approved third parties, to enable us, and/or them, to communicate with you, to provide you with products and services suited to your demographic profile, and to prepare advertising, marketing, and promotional campaigns that BigTinCan believes will appeal to BigTinCan's user community.
In the event that BigTinCan merges or is acquired by another business entity, or sells some or all, or substantially all of its assets to an acquirer, BigTinCan may share some or all of your personal information with the acquiring company in order to continue providing you with the Website, Services and Software.
To register with BigTinCan users must be eighteen (18) years of age or older.
BigTinCan's policy is that it does not knowingly collect personal information from subscribers under eighteen years of age.
None of the Website, Services or Software are directed or intended for persons under eighteen years of age.
If you are under eighteen years of age, you should not register or provide personal information on the Website.
BigTinCan has security measures in place to minimise the likelihood of the loss, misuse or alteration of the information under BigTinCan's control.
BigTinCan uses industry standard procedures and processes, such as firewall, proxies, encryption and monitoring to restrict the abuse of its network and data.
There are several measures implemented to control access to the data, based on login passwords, file access permissions, and IP address permissions.
BigTinCan will ensure that your personal information is not disclosed to government institutions and authorities, except if required by law or regulation.
Although BigTinCan utilises industry standard security technology to protect your information, BigTinCan does not guarantee or warrant against third parties breaching its security technology and obtaining and/or using your information.
You may, at any time, log in to review and edit your registration data that is accessible by you online by entering your e-mail address and password.
Further, you may request (using the contact details below) that BigTinCan provides you with a readable copy of the personal information that BigTinCan holds about you. Provided that you satisfy BigTinCan's proof of identity requirements and pay the applicable charge for such information (which will be notified to you at the time of such request), BigTinCan will endeavour to get a copy of such personal information to you within one month of your request.
You may challenge the personal information that BigTinCan holds about you and, where appropriate, BigTinCan will update or complete the personal information, as applicable.
BigTinCan reserves the right to refuse to provider you with a copy of your personal information, but will give you reasons for such refusal. You may challenge BigTinCan's refusal to provide you with a copy of such personal information.
This Privacy Policy may be amended in accordance with the terms and conditions of the Agreement (of which this Privacy Policy forms part).
