1.1 The Service Agreement (“Agreement”) is comprised of Part A (Registration Form) and Part B (General Conditions). The Agreement applies to the Customer’s use of services provided by directly or indirectly by LINK BPO, such services including all services specified in the Service Outline contained in the Registration Form, and any other services utilised by the Customer from LINK BPO, its agents or nominees from time to time (“Services”). The Registration Form (Part A) includes terms relating to the duration of this Agreement and the method and timing of payment for the Services so selected by the Customer.
1.2 The Customer agrees and warrants that the Customer has provided true, accurate, current, and complete information about the Customer’s self as part of the process of completing the Registration Form, including the Customer’s mobile number.
1.3 The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If the Customer do not qualify, the Customer’s use of the Services is expressly prohibited.
2. Operation of the Agreement
2.1 This Agreement shall commence on the Commencement Date specified in the Registration Form or when the Customer begins to use the Services, whichever is earlier.
2.2 This Agreement shall continue for any Minimum Term specified in the Registration Form, and thereafter on a month to month basis unless agreed otherwise.
3. Agreement, Variations and Amendments
3.2 LINK BPO may modify or vary the terms of this Agreement and may discontinue, amend, revise or alter any of the Services at its sole discretion, including by posting updated versions of the Agreement on the LINK BPO website, or other associated websites or materials or otherwise providing notice to the Customer.
3.3 All such changes shall become effective upon posting of the revised Agreement on the LINK BPO website or other associated websites or materials. The Customer’s continued use of the Services will constitute the Customer’s acceptance of the variation to the Agreement or the Services. LINK BPO will use efforts to make the Customer aware of any changes to the terms of this Agreement.
3.4 A Customer may, within 30 days of the changes becoming effective, or 30 days of receiving notice of the changes from LINK BPO (whichever is later) terminate this Agreement by 30 days’ notice in writing to LINK BPO provided that:
(a) The changes are substantial and have a material adverse impact on the Customer’s business; and
(b) The Customer has raised concerns they have about the changes with LINK BPO and engaged in good faith negotiations to agree upon a remedy to their concerns.
4. Payment and Fees
4.1 The Service Fees shall be as specified in the Registration Form.
4.2 If the Customer elects to pay using automatic direct debit, the Customer hereby authorizes LINK BPO to deduct any fixed fees from the nominated account in advance of provision of the Services and further deduct any funds payable on a usage basis whenever the Customer use the Services.
4.3 The Customer must ensure that sufficient funds are available in the nominated account to meet a drawing on its due date. Should a drawing be returned unpaid by the Customer’s financial institution or credit card issuer then an appropriate Declined Payment Fee (determined at LINK BPO’s sole discretion) will be applied to the Customer’s account with LINK BPO from which the drawing was to be applied.
4.4 The Customer must ensure that the authorization given to draw the fees on the nominated account is identical to the account signing instruction held by the financial institution or credit card issuer where the account is based. It is the Customer’s responsibility to advise us if the account nominated by them to be credited with fees or receive the drawings is transferred or closed.
(a) The Customer must arrange with us a suitable alternate payment method if the direct debit drawing arrangements are cancelled either by the Customer or their nominated financial institution or credit card issuer.
(b) LINK BPO will advise the Customer in writing of the details of the Direct Debit drawing arrangements (rates; frequency; and commencement date).
(c) Where the due dates for drawings fall on a non-business day, LINK BPO will draw the amount on the next business day.
(d) LINK BPO will not change the amount or frequency of drawing arrangements without the Customer’s prior approval.
(e) LINK BPO reserves the right to cancel the drawing arrangements if three or more drawings are returned unpaid by the Customer’s nominated financial institution or credit card issuer.
(f) The Customer may terminate the drawing arrangements at any time by giving written notice to LINK BPO. The termination will take effect from the invoice issue after the termination of these arrangements.
(g) Where a Customer considers that a drawing has been initiated incorrectly (outside the selections and nominations made by the Customer in the Registration Form) the Customer may take the matter up directly with us, or lodge a claim through their nominated financial institution.
4.5 Fees are payable in AUD.
4.6 4.6 All fees paid to LINK BPO for the Services are non-refundable, save and except that all prepaid Service Fees may be refunded if:
(a) The Customer elects to discontinue this Agreement due to any changes to the Agreement made under clause 3.4;
(b) LINK BPO terminates the services other than by reason of the Customer breaching the terms of this Agreement.
For the avoidance of doubt, if LINK BPO terminates this Agreement because the Customer breached this Agreement or any applicable laws, no refund will be issued even if the Customer has unused and prepaid Service Fees under this Agreement.
4.7 All Service Fees are subject to change at any time. Where the Service Fees are the same as specified in the Standard Pricing Schedule located on the LINK BPO website, the Customer is responsible to maintain awareness of the fees charged by LINK BPO. LINK BPO will take all reasonable steps to notify a Customer of any changes to the Service Fees prior to such changes taking effect.
4.9 LINK BPO may charge an Account Re-Activation Fee (determined at its sole discretion) should an account need to be re-activated by a Customer after an account has become de-activated.
4.10 LINK BPO may at its absolute discretion refuse any request for trading terms by a Customer and/or request further information from the Customer prior to granting trading terms to the Customer. A Customer with trading terms must pay the full amount owing as specified in invoices provided by LINK BPO by the due date specified on the invoice. LINK BPO may alter and withdraw trading terms at its sole discretion in the event that the Customer does not pay the full amount owing by the due date and/or impose a Late Payment Fee on the Customer at its sole discretion. Interest may be levied on the Fees owing beyond terms at the penalty interest rate then applicable in the State of Victoria at the discretion of LINK BPO.
4.11 If LINK BPO incurs a processing fee/s or equivalent fees or charges from a financial institution as a result of any payments made by the Customer, irrespective of method of payment, LINK BPO may at its sole discretion charge the Customer the amount of such processing fees and the Customer must pay that amount to LINK BPO immediately upon request.
5. Authorised Use
5.1 The Services shall be used for the Customer’s internal business purposes only and the Customer shall not use the Services (or any Software relating to the Services) for service bureau purposes or otherwise for the benefit of a third party.
5.2 The Customer represents, covenants, and warrants that they will use the Services only in compliance with this Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation).
5.4 The Customer acknowledges that they are responsible for the content of any and all Services, including any information, data or Software utilised to provide or sent using the Services. Although LINK BPO is under no obligation to monitor the content provided by the Customer or the Customer’s use of the Services, LINK BPO may do so and may remove any such content, not use such content or prohibit any use of the Services it believes may be (or is alleged to be) in breach of this Agreement.
5.5 The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates Australian or other laws that may apply in the Customer’s local area is prohibited. This may include material that is obscene, threatening, harassing, libellous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights.
5.7 The Customer acknowledges that all personal information that the Customer provides to LINK BPO has been collected with the relevant individual’s consent and that LINK BPO may transfer, store and use the personal information that the Customer provides to LINK BPO to and on servers located at the premises of and/or operated by third parties (including third parties residing and operating outside of Australia) and the Customer warrants to LINK BPO that they have obtained the consent of the relevant individuals to the transmission, storage and use of their personal information in this manner.
6. Nature of grant of rights
6.1 This is an Agreement for the Services, and the Customer is not granted a licence to any Software under this Agreement (except to the extent required for the Customer to use the Services).
6.2 The Customer acknowledges and agrees that the Services, the Software, LINK BPO (or Related Bodies Corporate) company names and logos and all related product and service names, design marks and slogans, and all other material comprising the Software or the Services (collectively, the “Marks”), are the property of LINK BPO, its Related Bodies Corporate or its suppliers as the case may be. Unless stated otherwise, all Marks are protected as the copyright, trade dress, trademarks (registered or unregistered) and/ or other intellectual properties owned by LINK BPO, Related Bodies Corporate or by other parties that have licensed their material to them.
6.3 TThe Customer is not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of LINK BPO. The Customer’s use of the Services confers no title or ownership in the Services, the Software or the Marks and is not a sale, disposition or transfer of any rights by LINK BPO in the Services, the Software or the Marks. All ownership rights remain with LINK BPO, the Customers or its suppliers, as the case may be.
7. Prohibited conduct
7.1 The Customer will not, directly or indirectly, copy, replicate or reproduce any aspect of the Services or Software which are related to this Agreement. The Customer agrees not to reverse engineer, decompile, disassemble, or otherwise attempt to discover any Software used as part of the Services, remove any proprietary notices or labels from the Services or any Software, reproduce or copy the Software or the Services or any part thereof, modify, translate, or create derivative works based on the Services or any Software, or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software.
7.2 If the Customer is using the Services in any country in the European Community or Australia, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect the Customer’s rights under any legislation implementing the EC Council Directive on the Legal Protection of Computer Programs or the Australian Copyright Act 1968 (Cth).
7.3 The Customer must not use the Services to distribute illegal contests, pyramid schemes, chain letters, multi-level marketing campaigns, or any other prohibited material.
7.4 The Customer must not use the Services, or otherwise associate with the Services, anything that links with, displays or is suggestive of nudity, obscene content, gambling related content, pay day lender related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that we deem inappropriate.
7.5 The Customer must not use the Services for the sending of unsolicited electronic messages.
8.1 In using the varied features of the Services, the Customer may provide information (such as name, contact information, or other registration information) to LINK BPO. LINK BPO may use this information and any technical information about the Customer ‘s use of the Services to tailor its presentations to the Customer, facilitate the Customer’s movement through the Services, or to communicate separately with the Customer.
8.2 LINK BPO and its Related Bodies Corporate will not use any of the Customer’s subscriber lists or any other customer information for any other purposes than those related to the Services. The Customer’s customer information will not be shared with any other parties. In addition, LINK BPO will not use the Customer’s customer information for the purpose of sending unsolicited commercial communications.
9. Reselling and Subcontracting the Services
9.1 Reselling and sub-contracting of the Services to third parties is permitted subject to the terms in this clause, and subject to the Customer entering into a separate agreement with LINK BPO, containing further terms relating to the reselling and sub-contracting.
9.2 The Customer must in relation to reselling or sub-contracting the Services to third parties:
(a) enter into a binding contractual relationship with its customer on terms no less onerous than this Agreement including, without limitation, the Anti-Spam Policy;
(c) provide all customer relationship management, including first level support services in relation to the Services, to its customer.
9.3 The Customer hereby agrees to indemnify and hold harmless, LINK BPO and its Related Bodies Corporate on an actual indemnity basis from and against all costs, expenses, losses and liabilities arising in any way (including under statute, the law of tort, equity or any other theory of law whatsoever) from or in relation to use of the Services by its customers and all other acts and omissions of its customers otherwise taking place on or in relation to the Services.
9.4 LINK BPO does not charge an additional fee for use of the Service by its customers, however, the Service Fees shall apply to such use. The Customer is required to pay our Service Fees irrespective of whether or not its customers pay any fees owing to the Customer.
10. Termination and suspension
10.1 If the Agreement is for a specified Minimum Term, the Customer may only terminate this Agreement during the Minimum Term by paying an Agreement Break Fee. Otherwise, either party may terminate this Agreement and the Services by giving of notice in writing to the other. The period of notice provided shall be the Cancellation Notice Period specified in the Registration Form.
10.2 LINK BPO may terminate this Agreement or the Services at any time for cause (including breach of this Agreement by the Customer or breach of any laws applicable to the Customer in relation this Agreement or use of the Services) with or without notice. LINK BPO shall have no liability to the Customer or any third party because of such termination.
10.3 LINK BPO may delete any of the Customer’s archived data within 30 days after the date of termination. Any statutory retention requirements with respect to the Customer’s business records or information remain the Customer’s responsibility.
10.4 LINK BPO may delete any of the Customer’s archived data within 30 days after the date of termination. Any statutory retention requirements with respect to the Customer’s business records or information remain the Customer’s responsibility.
10.5 If the Customer does not utilise the Services for more than 350 days, LINK BPO may at its sole discretion suspend operation of any Services. Customers have 30 days after the suspension of their Services to utilise the Services. In the event that the Customer does not so utilise the Services, LINK BPO may immediately at its sole discretion terminate this Agreement.
11. Warranties, Disclaimers and Remedies
11.1 The Customer shall use the Services, and rely on the Services (including taking action because of such use or reliance) at their own risk.
11.2 To the maximum extent permitted by law, LINK BPO does not warrant that the Services will be uninterrupted, accurate or error free, nor warrant the results that may be obtained from use of the Services. The Services are provided on an “as is” basis and to the extent permitted by law LINK BPO disclaims all warranties, express or implied, in relation to the Services including (but not limited to) implied warranties of merchantability, fitness for a particular purpose and non-infringement.
11.3 To the maximum extent permitted by law, LINK BPO makes no guarantee that the Services will be rendered properly, including to the extent applicable, nor that the technologies or technology platforms utilised by LINK BPO (particularly where they are licensed from third parties) function in accordance with either representations made by LINK BPO or where applicable as represented by the third parties. LINK BPO makes every reasonable attempt to ensure its technologies and technology platforms follow generally accepted industry standards.
11.4 The Customer’s sole and exclusive remedy for any failure or non-performance of the Services shall be for LINK BPO to use commercially reasonable efforts to adjust or repair the Services, or where such adjustment, remedy or repair is not feasible, for LINK BPO to either (at its sole discretion) perform the Services again or provide the Customer with a refund for the amount the Customer actually paid to LINK BPO for the relevant Services.
12. Limitation of Liability
12.1 To the maximum extent permitted by law, under no circumstances shall LINK BPO or its Related Bodies Corporate, business partners, information providers, account providers, licensors, shareholders, directors, employees, contractors, distributors, suppliers or agents (collectively referred to for purposes of this section as “LINK BPO Parties“) be liable to the Customer or any other person for any loss or damage (including but not limited to direct, indirect, exemplary, special, incidental, cover, reliance or consequential damages, loss of profits or revenue, business interruption, loss of data, or failure to realise anticipated savings or benefits or business opportunities), arising directly or indirectly from the provision or use of the Services.
12.2 LINK BPO Parties’ exclusion of liability applies whether the claim is in contract, tort (including without limitation, negligence) or equity and even if LINK BPO has been notified of the possibility of such loss or damage.
12.3 Any representation, consumer guarantee, warranty, condition or undertaking that would be implied in the Agreement or under the Agreement by legislation, common law, equity, trade, custom or usage is excluded to the maximum extent permitted by the Australian Consumer Law and all other applicable law.
12.4 The Customer agree that LINK BPO Parties’ liability to the Customer at law will be reduced by the extent, if any, to which the Customer contributed to the loss.
12.5 In the event that, notwithstanding the foregoing, LINK BPO Parties are found liable to the Customer for damages from any cause whatsoever, and regardless of the form of the action (whether in contract, tort, including negligence, product liability or otherwise), to the fullest extent permitted by law the liability of LINK BPO Parties to the Customer will be limited to:
(a) In the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of saving the goods repaired; and
(b) In the case of Services, the supplying of the Services again or the payment of the cost of having the Services supplied again or refund of fees actually paid for the Services.
12.6 The Services may contain materials produced by third parties or include links to other websites. Such materials and websites are provided by third parties and are not under LINK BPO’s direct control and LINK BPO Parties accept no responsibility or liability in respect of any such third party materials or for the operation or content of other websites (whether or not linked to the Services). The Customer acknowledge that LINK BPO is entitled to require the Customer to remove any link from another website to the Services which the Customer install without obtaining LINK BPO’s prior written consent.
12.7 If the Customer has elected direct debit or are currently the subject of direct debit arrangements with LINK BPO, the Customer hereby releases and forever discharges LINK BPO from any and all liability to the Customer for any losses of any kind that the Customer may suffer relating to or arising out of the direct debit arrangements, including without limitation all consequential losses suffered by the Customer (including but not limited to loss of revenue or economic loss, loss of profit, loss of anticipated savings or business, loss of data or good will, claims by third parties and costs and expenses associated with or incidental to any such losses) from any act or omission by LINK BPO in complying or intending to comply with a direct debit request from the Customer.
12.8 LINK BPO’s liability to the Customer for any and all losses suffered by the Customer as a result of any act or omission by LINK BPO in complying or intending to comply with a direct debit request from the Customer is limited to debiting to the Customer’s nominated account correctly and refunding the Customer any amounts that we have wrongfully debited from the Customer’s nominated account. The Customer acknowledges that LINK BPO is not in any way liable to the Customer or to any third party for, and hereby release and forever discharge LINK BPO from, any claims against LINK BPO resulting from the Customer’s acts or omissions or the acts or omissions of any third party and the Customer agrees to indemnify LINK BPO for any losses that LINK BPO may suffer as a result of any claims made against it.
13. Export or international sharing of data
13.1 Technical Data – The Customer may not remove or export from Australia or allow the export or re-export of the Services, or any direct product thereof, including technical data, in breach or violation of any restrictions, laws or regulations of Australia and all other applicable countries.
(b) being subject to binding and enforceable obligations to LINK BPO to implement, and comply and enforce, any such an internal policy or arrangements.
15. Anti-SPAM Policy
The Customer shall comply with the Anti-Spam Policy of LINK BPO as amended from time to time. The Anti-Spam Policy is located on LINK BPO website.
16.1 Unenforceable or invalid clauses – If any clause, sub-clause or part thereof in the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
16.2 Entire agreement – LINK BPO and the Customer agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement.
16.3 Waivers – LINK BPO and the Customer agree that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
16.4 No other relationships – No agency, partnership, joint venture, or employment is created as a result of the Agreement, and the Customer do not have any authority of any kind to bind LINK BPO in any respect whatsoever.
16.5 Cost recovery – In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
16.6 Governing laws – The Agreement shall be governed by the laws of the State of Victoria Australia without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Melbourne, Victoria, Australia.
16.7 Force Majeure – LINK BPO will not be liable by reason of the failure in the performance of obligations under this Agreement by reason of strikes, riots, fire, explosions, acts of God, war, governmental action, or any other cause which is beyond LINK BPO’s reasonable control.
16.8 Rights not expressly granted – All rights not expressly granted are reserved.
16.9 Survival – All clauses of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership (clause 6.2 and 6.3), warranties (clause 11), disclaimers and limitations of liability (clause 12).
17.1 The Guarantor/s unconditionally and irrevocably guarantees payment to LINK BPO of the Guaranteed Money. In this clause, Guaranteed Money means any monies that at any time for any reason or circumstance in connection with this Agreement are payable by the Customer. If any Guaranteed Money is not paid within the agreed terms, the Guarantors agrees to pay the Guaranteed Money to LINK BPO. The Guarantor/s must pay the Guaranteed Money in full without set off, counterclaim or deduction.
17.2 The Guarantor/s must pay LINK BPO for the reasonable costs of LINK BPO enforcing or attempting to enforce or taking any other action in connection with this Guarantee. LINK BPO may claim against the Guarantor/s before enforcing other rights and remedies, whether arising under this Agreement or otherwise.
17.3 This Guarantee under this clause is a continuing obligation and extends to all the Guaranteed Money. The Guarantor/s must indemnify LINK BPO and pay LINK BPO on demand for liability, loss or costs (including consequential or economic loss) Gale suffers if you default under this Guarantee.
17.4 LINK BPO’s rights and remedies under this Guarantee are in addition to any other rights and remedies provided by law independently of this clause.
For the purposes of this Agreement:
“Customer” or “The Customer” means the person (including a corporation, partnership, trust or any other form of legal entity whatsoever) specified in Part A Registration Form.
“Related Bodies Corporate” means related bodies corporate of LINK BPO within the meaning in the Australian Corporations Act (Cth) including Obpo Holdings Pty Ltd, and shall also include LINK BPO (Phils) Limited, Inc (registered in the Phillipines).
“Software” means source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services.
“LINK BPO” means LINK BPO Pty Ltd (ABN 75 132 485 306) and includes its shareholders, directors, employees, sub-contractors, suppliers and agents.