kmoo - terms and conditions

Terms and Conditions

1 DEFINITIONS AND INTERPRETATION
2 SERVICE
3 DEVICE
4 YOUR SERVICE SUBSCRIPTION
5 YOUR COOPERATION
6 EMERGENCY SERVICES 000 DIALLING
7 PAYMENT
8 TERMINATION OF SERVICE
9 MONEY BACK GUARANTEE
10 DISCLAIMER, LIMITATIONS OF WARRANTY AND LIMITATIONS OF LIABLILITY
11 YOUR REPRESENTATIONS AND LIABILITY
12 INTELLECTUAL PROPERTY
13 GENERAL
14 CHANGES TO THESE TERMS OF SERVICE
15 PRIVACY

Important - Please read carefully:

Welcome
These Terms of Service constitute the agreement between Kmoo and you, the customer, for the use of the Service and, if applicable, the Device.
By providing us with your payment details you:
(a) acknowledge that you are entering into a legally binding contract with Kmoo; and
(b) agree to these Terms of Service.
These Terms of Service apply in addition to the Software Terms and Conditions applicable to the Service (if any). If there is any inconsistency between these Terms of Service and the applicable Software Terms and Conditions, these Terms of Service prevail to the extent of the inconsistency.

Emergency services - 000 dialling (Australian Residents)
You acknowledge that the Service does NOT support some parts of the 000 emergency services. kmoo does offer access to some 000 services, but 000 dialling is different in a number of important ways. Please see clause 6 below.
You should always have an alternative means to call 000 emergency services.

Emergency services - Police, Fire and Ambulance (International Residents)
You acknowledge that the Service does NOT support emergency services dialling (eg, police, fire, hospital and ambulance emergency services) in any country other than Australia.
You should always have an alternative means to call emergency services.
(Some words used in this section are defined in clause 1 below.)

1 Definitions and Interpretation

1.1 Definitions
In these Terms of Service:
Enabling Device means a VoIP adapter or other internet telephony connection device provided to you by or on behalf of kmoo;
Documentation means any online or otherwise enclosed documentation provided to you by or on behalf of kmoo;
Effective Date means the date on which kmoo activates your Service;
ISP means Internet Service Provider;
kmoo means Clarinet Australia Pty Ltd (ACN 111 616 249) trading as Kmoo;
Kmoo Network means the call switching and media proxy equipment and software, routers, switches and gateways that allow calls between Kmoo customers;
Kmoo Website means the website owned and operated by Clarinet Australia Pty Ltd (ACN 111 616 249), being www.kmoo.com.au;
Service means the payable internet telephony service and any related products or services supplied to you by kmoo, including the Standard Service, the Softphone Service, the WebDialler Service and other products or services the Kmoo may supply you from time to time;
Software Terms and Conditions means:
(a) in relation to the Softphone Service, the Softphone Software Terms and Conditions (a copy of which can be found at www.[insert]); and
(b) in relation to the WebDialler Service, the WebDialler Software Terms and Conditions (a copy of which can be found at www.[insert]);
Terms of Service means these terms and conditions as amended from time to time in accordance with clause 14;
User means any person, whether authorised or unauthorised, using the Service or Device provided to you;
You means the user or customer of the kmoo Service, whether an individual or a body corporate and "your" has a corresponding meaning.

1.2 Interpretation
(a) Where "you" comprises of more than one person, then each person is jointly and severally bound by these Terms of Service, anything contemplated by these Terms of Service and the Documentation.
(b) In these Terms of Service unless otherwise required by the context:
(1) words importing the singular include the plural; and
(2) "including" and "includes" are not words of limitation.
(c) The headings and bolding used in these Terms of Service are for convenience of reference and do not affect the interpretation of these Terms of Service.
(d) If there is any inconsistency between the Documentation and these Terms of Service, these Terms of Service prevail to the extent of the inconsistency.

2 Service

2.1 Duration of Service
(a) kmoo will provide the Service to you from the Effective Date for successive periods of one month.
(b) This contract will automatically renew at the expiry of each month for a further one-month period without further action by you, unless you give kmoo written notice of non-renewal at least 10 days before the end of the current monthly period.
(c) You will be responsible for the full charges for each month, including the month in which you give notice of non-renewal and (if you give notice later than 10 days before the expiry of that month) the following month. All unpaid charges (including unbilled charges) will become immediately due upon your written notice of non-renewal.

2.2 Loss of Service due to power failure etc
You acknowledge that:
(a) the Service will not function in the event of power failure until power is restored;
(b) the Service requires a fully functional broadband connection to the Internet (which is not provided by kmoo). Accordingly, in the event of an outage of, or termination of service with, your ISP, the Service will not function until the broadband connection is restored;
(c) the Service will not function if kmoo suspends or terminates your Service for any reason set out in these Terms of Service, until kmoo restores your Service;
(d) despite any failure of power or broadband connection, you will continue to be billed for the Service until this contract is terminated; and
(e) if you have been provided with a Device, you may need to reset or reconfigure the Device following a power outage before using the Service again.

2.3 Suspension of Service
(a) If your use of the Service does not appear to be consistent with its usual use we may, for your protection, suspend your Service. We will only do this where it appears to us that the number of calls or charges for calls have increased significantly.
(b) We will make reasonable efforts to contact you before suspending your Service. This may not be possible if we need to suspend your Service outside of normal working hours.

2.4 Maximum call duration
Individual calls exceeding 90 minutes are terminated automatically by kmoo. This policy is for your protection so calls that are not properly completed (eg phone handset is not hung up correctly) do not continue to accrue charges.

2.5 Service distinctions
You acknowledge that the Service is not a standard telephone service. Important distinctions exist between the Service and a standard telephone service. Not all of these distinctions are described in these Terms of Service. The Service may be subject to different regulatory treatment than a standard telephone service.

2.6 No 1900+ calling, may not support 1300+ calling
The Service does not support premium service 1900+ calling (including collect, third party billing or calling card calling). The Service may not support other 1300+ services in one or more (or all) service areas.

2.7 Number transfers on Service termination
Upon termination of the Service, kmoo may, at its sole discretion, release to your new service provider a telephone number that you ported in from a previous service provider to kmoo and used in connection with your Service, if:
(a) your new service provider is able to accept the number;
(b) your Service has been terminated;
(c) you do not owe any amounts to kmoo, including any charges or termination fees; and
(d) you request the transfer upon terminating your Service.

3 Device

3.1 Delivery and installation
(a) If you have subscribed for the Device, kmoo will deliver the Device to the address provided by you in writing at your cost.
(b) The Device is exclusively for use in connection with the Service. kmoo will not provide any passwords, codes or other information or assistance that would enable you to use the Device for any other purpose.
(c) You must install the Device in accordance with the instructions set out in the Documentation and any further instructions given to you by kmoo from time to time (if any).

3.2 Title and risk
(a) Notwithstanding delivery, installation and acceptance of the Device, title to the Device passes from kmoo to you only when you have paid for the Device in full in accordance with clause 7. Until that time, you hold the Device on trust for kmoo.
(b) Despite paragraph (a), you bear the risk related to the Device at all times after the Device leaves kmoo's premises or a supplier's premises (as the case may be) for delivery to you, and kmoo is not liable for any loss or damage to the Device from that time.

3.3 Damaged Device
(a) If the Device or the cartons in which the Device arrived are visibly damaged upon your receipt of them, you must note the damage on the carrier's freight bill or receipt and keep a copy.
(b) In such event, you must keep the original carton, all packing materials and parts intact in the same condition in which they were received from the carrier and contact kmoo's customer care department immediately at the address or phone number given in clause 7.5, or email support@kmoo.com.au.

4 Your Service subscription

4.1 Residential use of Service and Device
(a) This clause 4.1 applies if you have subscribed to kmoo's residential services.
(b) The Service and Device are provided to you as a residential user, for your personal, residential, non-business and non-professional use.
(c) You must not use, or allow the Service or Device to be used for any commercial or governmental activities, profit-making or non-profit, including home office, business, sales, tele-commuting, or any other activity that would be inconsistent with normal residential usage patterns.
(d) You agree that if you use, or permit any other person to use, the Service or the Device for any non-residential purpose, then you must pay kmoo's higher rates for commercial service in respect of all periods in which you used the Service or the Device for such purpose.
(e) kmoo may immediately terminate or modify the Service if kmoo determines, in its sole discretion, that your Service is being used for non-residential or commercial use.

4.2 Home office use of Service and Device
(a) This clause 4.2 applies if you have subscribed to kmoo's SOHO (Small Home Office) services.
(b) You must not use, or allow the Service or Device to be used for any governmental activities, or any other activity that would be inconsistent with normal usage patterns for a small, self-owned, home-based business.

4.3 Small-to-medium enterprise use of Service and Device
(a) This clause 4.3 applies if you have subscribed to kmoo's SME (small-to-medium enterprise) services.
(b) You must not use, or allow the Service or Device to be used, for any governmental activities, or for any other activity that would be inconsistent with normal usage patterns for a small to medium enterprise.

5 Your cooperation

5.1 Use of Service and Device
You must use the Service and the Device in accordance with these Terms of Service, the Documentation and any relevant laws.

5.2 Lawful use
You must not use, nor allow any person to use, the Service or the Device:
(a) fraudulently or illegally, or for any obscene, offensive or illegal purpose;
(b) to send a communication which is, or is intended to be, a hoax call or which is spiteful, indecent, defamatory, offensive, abusive, obscene or menacing;
(c) to violate or infringe any rights of, or to cause unwarranted inconvenience or anxiety to, any other person; or
(d) in such a way that may damage or affect the operation or quality of the Service, the kmoo Network or any telecommunications system used to provide the Service.

5.3 Failure to comply with lawful use
(a) kmoo may terminate your Service immediately and without advance notice if kmoo, in its sole discretion, considers that you have breached, or are likely to breach, clause 5.2, in which case clause 8.3 will apply, and you will, in addition, be liable to pay a termination fee in accordance with clause 7.
(b) If kmoo, in its sole discretion, believes that you have breached clause 5.2, kmoo may forward the objectionable material, as well as your communications with moo and your personally identifiable information to the appropriate authorities for investigation and prosecution and you hereby consent to such forwarding.

5.4 Appropriate use
(a) You, and any User, must not use the Service for auto-dialling, continuous or extensive call forwarding, telemarketing (including charitable or political solicitation or polling), fax broadcasting or fax blasting.
(b) You must not sell, assign, rent, lease, distribute, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the Service or Device, without first obtaining express written permission from kmoo, or permit or cause any other person to do so.
(c) kmoo may immediately terminate or modify the Service if kmoo considers, in its sole discretion, that you have, or are likely to, breach paragraph (a) or (b).

5.5 Tampering with Device or Service
You and any User must not:
(a) modify or tamper with the Device, change the electronic serial number or equipment identifier of the Device or perform a factory reset of the Device, or cause or allow any other person to do so, without express permission from kmoo (which kmoo may grant or withhold at its sole discretion);
(b) alter, remove or erase any identifying name, name plate, identification number, trade mark or any other notice or indication of intellectual property rights on the Device;
(c) reverse compile, disassemble or reverse engineer or otherwise attempt to derive the source code from the binary code of any hardware or software used in connection with the Device or Service;
(d) reproduce the Device or the Documentation;
(e) act in any other manner that is inconsistent with kmoo's intellectual property rights in the Device; or
(f) hack or disrupt the Service or make any use of the Service that is inconsistent with its intended use, or attempt to do so.
kmoo may terminate your Service immediately and without advance notice if kmoo, in its sole discretion, considers that you have breached any of paragraphs (a) to (f), in which case clause 8.3 will apply, and you will, in addition, be liable to pay a termination fee in accordance with clause 7.

5.6 Theft of service
(a) You must notify kmoo immediately, in writing or by calling the kmoo customer support line, if the Device is stolen or if you become aware at any time that your Service is being stolen or fraudulently used. When you call or write, you must provide your account number and a detailed description of the circumstances of the Device theft or fraudulent use of the Service.
(b) Failure to comply with paragraph (a) in a timely manner may result in the termination of your Service and additional charges to you.
(c) Until such time as kmoo receives notice of the theft or fraudulent use, you will be liable for all use of the Service using a Device stolen from you and any and all stolen Service or fraudulent use of the Service.

5.7 Use of equipment other than Device
(a) You acknowledge that the Service may not operate correctly in conjunction with any VoIP adapter or equipment other than the Device.
(b) kmoo may at any time prohibit the use of the Service through equipment other than the Device, either in a particular case or generally.
(c) If you decide to use the Service through an interface device not provided by kmoo, you warrant that you possess all required rights, including software and hardware licenses, to use that interface device with the Service.

6 Emergency Services - 000 Dialling

6.1 Application
(a) This clause 6 applies if you reside in, and use the Service within Australia.
(b) If you use the Service in a country other than Australia, you acknowledge that the Service does not support emergency services dialling (eg, fire, police, ambulance or hospital emergency services etc) and that you should always have an alternative means to call emergency services.

6.2 000 Dialling Service
(a) You acknowledge that the Service does NOT support some parts of the traditional 000 emergency services.
(b) kmoo does offer access to 000 services as described below, but you acknowledge and understand that 000-type dialling is different in a number of important ways (some, but not necessarily all of which are described in these Terms of Service) from traditional 000 services.
(c) You must inform any household residents, guests and other third persons who may be present at the physical location where you utilise the Service of the non-availability of traditional 000 dialling from your kmoo Service and Device(s).

6.3 Description of 000 Dialling Capabilities
kmoo does offer access to 000 dialling service in Australia. When you dial 000, your call is routed from the kmoo network to 000 Emergency Services who have access to name and address details provided by you when you signed up for the kmoo Service. This information is stored in the Integrated Public Number Database (IPND) which is administered by Telstra under Australian Government legislation. The emergency service operator accesses your information by using the telephone number (or Calling Line ID (CLI)) that was assigned to your Device by kmoo. The information in the IPND contains the service address you provided as well as an indicator that this is a VoIP service and therefore the service address cannot be relied on to provide an accurate location for the caller.

6.4 Service Outage
(a) Power failure or disruption: You acknowledge that 000 dialling does not function from the Service in the event of a power failure or disruption. Should there be an interruption in the power supply, the Service and 000 dialling will not function until power is restored. A power failure or disruption may require you to reset or reconfigure equipment prior to utilising the Service or 000 dialling.
(b) Broadband service/ISP outage or termination/ Suspension or termination by kmoo: You acknowledge that service outages or suspension or termination of service by your broadband service provider or ISP or by kmoo will prevent ALL Services, including 000 dialling.
(c) Service outage due to suspension of your account: You acknowledge that service outages due to suspension of your account as a result of billing issues will prevent ALL Services, including 000 dialling.
(d) Other service outages: You acknowledge that if there is a service outage for ANY reason, such outage will prevent ALL Services, including 000 dialling. Such outages may occur for a variety of reasons, including those reasons described elsewhere in these Terms of Service.
(e) Limitation of liability and indemnification: You acknowledge that kmoo's liability is limited for any Service outage or inability to dial 000 from your line or to access emergency service personnel, as set out in these Terms of Service.

6.5 Failure to designate correct physical address when signing up for the Service
If you fail to provide the current and correct physical address of the place where you use the Service by following the instructions on the Service sign-up page, then the operator who receives any 000 call from your Service will not being able to get an accurate location of the caller. This must be the actual physical street address where you are located, not a post office box, mail drop or similar address.

6.6 Requires re-activation if you change your number or add or port new numbers
You acknowledge and understand that 000 will not be able to accurately locate the caller if you:
(a) change your phone number; or
(b) add or port any new numbers to your account,
until you have successfully updated your physical address details in the "My Profile" section of the kmoo Website.

6.7 Requires update if you move or change location
You acknowledge and understand that 000 will not be able to accurately locate the caller if you move to a different address or otherwise change the physical location of the Device or the place where you utilise the Service to a different street address, until you have successfully updated the current and correct physical address and location of the place where you utilise the Service or use the Device using the "My Profile" section of the kmoo Website.

6.8 Alternative 000 arrangements
You acknowledge that kmoo cannot guarantee access to emergency services through 000. You should always have an alternative means of accessing traditional 000 services. The Device has a second telephone port to allow a traditional standard telephone service to be attached and to provide a fail safe service should there be a power outage or an interruption to Internet services. This fail safe will also provide traditional access to 000 emergency services but only if you maintain a traditional telephone service with a third party telecommunications provider.

7 Payment

7.1 Charges
You must pay, in accordance with this clause 7:
(a) if you have subscribed for the Device, the price for the Device, and shipping and handling of the Device, as stated on the kmoo Website at the Effective Date;
(b) the Pay-As-You-Go fee or the pre-paid service as set out on the kmoo Website at the Effective Date;
(c) the monthly charges for the Service at the prices set out in the call Rates section or the kmoo Website, as amended by kmoo from time to time;
(d) all usage charges associated with the Service, including calls to international numbers and mobile phones, and advanced feature charges;
(e) termination fees as set out on the kmoo Website (none: should we put in here and say any updates would be on the news and information section of the website) at the date of termination of this agreement; and
(f) any other amounts as set out on the kmoo Website at the date of termination of this agreement for use of the Device or the Service.

7.2 Charges may change
(a) kmoo may increase the monthly charges for the Service from time to time at its discretion.
(b) You will be notified of changes to monthly charges via the news and information section of the kmoo Website in accordance with clause 14.

7.3 No deductions
You must pay all money owing to kmoo on the due dates for payment in full without any setoffs (legal, equitable or otherwise), counterclaims, deductions, reductions, discounts or allowances of any kind.

7.4 Billing
(a) You must give us a valid credit card number (Visa, MasterCard, Bankcard, or any other issuer then accepted by kmoo), when the Service is activated. kmoo reserves the right to stop accepting credit cards from one or more issuers.
(b) If the card expires, you close your account, your billing address changes, or the card is cancelled and replaced owing to loss or theft, you must advise kmoo immediately.
(c) kmoo will bill all charges, applicable taxes and surcharges monthly in advance (except for usage-based charges, which will be billed monthly in arrears, and any other charges which kmoo decides to bill in arrears). kmoo reserves the right to bill at more frequent intervals if the amount due at any time exceeds $25. Any usage charges will be billed in increments that are rounded up to the nearest minute except as otherwise set forth in the rate schedules on the kmoo Website.

7.5 Billing disputes
You must notify kmoo in writing within 7 days after receiving your credit card or bank statement if you dispute any kmoo charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address:
Customer Care Accounts Department
kmoo
PO Box 6081
Phillip DC ACT 2606
or
send an email to accounts@kmoo.com.au
or
phone 1300 786 682 between 9am and 5pm (Eastern Standard Time).

7.6 Payment
(a) kmoo accepts payments only by credit card or direct debit for some services as set out in clause 7.4. Your initial use of the Service authorises kmoo to charge the credit card or direct debit account number on file with kmoo, including any changed information given to kmoo if the card expires or is replaced, or if you substitute a different card, for kmoo charges as set out in clause 7.1.
(b) This authorisation will remain valid until 30 days after kmoo receives your written notice terminating kmoo's authority to charge your credit card, whereupon kmoo will charge you any other outstanding charges and terminate the Service.

7.7 Failure to pay
If any charge to your credit card on file with kmoo is declined or reversed, or your credit card expires and you have not provided kmoo with a valid replacement credit card, or in case of any other non-payment, kmoo may, without prejudice to any other right or remedy available to it:
(a) suspend your Service until the default is made good; and
(b) terminate your Service, in which case clause 8.3 will apply and you will be liable for all costs incurred by kmoo in collecting amounts that you owe, including collection costs and legal fees on a full indemnity basis.

7.8 Taxes
You are responsible for, and must pay, any applicable taxes, fees or charges now in force or enacted in the future, that arise from or as a result of your subscription or use or payment for the Service or a Device. Such amounts are in addition to payment for the Service or Devices and will be billed to your credit card as set forth in these Terms of Service. If you are exempt from payment of such taxes, you must provide kmoo with an original certificate that satisfies applicable legal requirements attesting to tax-exempt status. Tax exemption will only apply from and after the date kmoo receives such certificate.

8 Termination of Service

8.1 kmoo may terminate
kmoo reserves the right to suspend or discontinue providing the Service generally, or to terminate your Service, at any time in its sole discretion.

8.2 Termination for kmoo's convenience
If kmoo discontinues providing the Service generally, or terminates your Service in its discretion without a stated reason, you will only be liable for charges accrued through to the date of termination, including a pro-rated portion of the final month's charges.

8.3 Termination for cause
If your Service is terminated for any stated reason, including:
(a) a breach of these Terms of Service; or
(b) any improper use of the Service or Device (such as your attempts to hack, disrupt, or misuse the Service or your acts or omissions that violate any acceptable use policy of kmoo or of a third party provider to which kmoo is subject),
you will be liable for the full month's charges to the end of the current term, including unbilled charges, all of which immediately become due and payable and may at kmoo's discretion be immediately charged to your credit card or direct debit card.

9 Money Back Guarantee

9.1 Money Back Guarantee
(a) kmoo offers a 14-day money back guarantee ("Money Back Guarantee"), applicable only to your first-ordered line per account, not to additional or secondary lines.
(b) Under terms of the Money Back Guarantee, kmoo refunds the first month of service, the purchase price of the Device, and the cost of delivering the Device to you, after kmoo receives the returned Device, if the conditions described in clause 9.2 are satisfied.
(c) kmoo reserves the right to terminate or revoke the Money Back Guarantee at any time upon notice to you.

9.2 Conditions for Money Back Guarantee
To be eligible for the Money Back Guarantee you must:
(a) cancel your Service by notice in writing to kmoo before the expiry of 14 days following the Effective Date;
(b) return all purchased Devices within 14 days after cancellation in compliance with clause 9.3; and
(c) not have exceeded $10 worth of usage based on the published kmoo call rates at the Effective Date. If, however, kmoo nevertheless agrees in its sole discretion to offer you the Money Bank Guarantee, you remain responsible for all charges in excess of $10 including international usage (other than to the nominated destination, calls to mobile phones, payphone calls to kmoo toll free numbers and directory assistance).
THE MONEY BACK GUARANTEE DOES NOT APPLY TO ACCOUNTS WHICH HAVE INCURRED MORE THAN $10 IN USAGE CHARGES, AND SUCH ACCOUNTS ARE NOT ELIGIBLE FOR REFUND OF ANY AMOUNT.

9.3 Return of Device
A returned Device must conform to the following for a full refund:
(a) you have retained, and return the Device in, its original packaging;
(b) the Device is undamaged and in original condition;
(c) all parts, accessories, Documentation and packaging materials are returned undamaged; and
(d) the Device is returned with a valid return authorisation number obtained from Kmoo's customer care department. To obtain a return authorisation number, you must contact support@kmoo.com.au or phone 1300 786 682.
You are responsible for the cost and risk of return shipping of the Device.
THE MONEY BACK GUARANTEE WILL NOT BE HONOURED IF YOU FAIL TO MEET ALL OF THESE REQUIREMENTS.

10 Disclaimer, Limitation of warranties and limitation of liability

10.1 Important Disclaimer
You acknowledge and agree that, subject to clause 10.2:
(a) kmoo;
(b) any other person whose website is linked to a website of kmoo; and
(c) any officer, employee, agent or related company of any of the persons referred to in paragraphs (a) and (b),
(each a "Supplier)
are not liable for any Loss, however caused (including but not limited to, by the negligence of any Supplier), suffered by you arising from or in connection with these Terms of Service or the Services.
You must indemnify a Supplier against any Loss suffered or incurred by that Supplier arising from or in connection with any Claim made against a Supplier by you.

10.2 Exclusion of warranties
(a) Except for:
(1) the express terms and warranties set out in these Terms of Service; and
(2) those implied terms or warranties that are imposed by statute that are mandatory and cannot be excluded,
kmoo gives no warranties and all other terms, conditions, warranties, stipulations or other statements whatsoever, whether express or implied, by statute or common law, or otherwise howsoever, are expressly excluded.
(b) Notwithstanding anything else in these Terms of Service, where any statute implies any terms or warranty into these Terms of Service, and that statute avoids or prohibits provisions in a contract excluding or modifying that term or warranty (except in certain cases), that term or warranty will be deemed to be included in these Terms of Service, but kmoo's liability respectively for breach of that term will be limited to, so far as permitted by that statute, in one or more ways (at kmoo's option) permitted by subsection 68A(1) of the Trade Practices Act 1974 (Cth), sub-section 35(1) of the Fair Trading Act 1987 (WA) or any other similar provision contained within any other like statute.

10.3 Exclusion of liability for content
(a) You acknowledge that the content of communication spread by the use of any kmoo service (including the Service) is the responsibility of the person from whom the content originated. kmoo is not liable for any type of communication spread by means of a kmoo service (including the Service) or network.
(b) kmoo does not guarantee or warrant the security of any data that is transmitted between you and any other person via the Service, regardless of whether the data represents voice, text messages or any other form of communication.

10.4 Limit of liability
In any event, you acknowledge and agree that, to the extent permitted by law, the aggregate liability of Kmoo, its directors, employees, agents, subcontractors and contractors to you or any third party for all Claims is limited in aggregate to the amount of fees and usage charges received by Kmoo from you over the period of 12 months prior to the date on which the breach giving rise to the Claim first arises.

10.5 No liability for consequential losses
kmoo is not liable to you or any other person for indirect, special, incidental or consequential loss or damage (including loss resulting from business interruption, lost data, lost profits, or damages arising out of or in connection with the use or inability to use the Service, including inability to be able to dial 000 or to access emergency service personnel through the Service), whether in an action for contract, negligence, other tort or other cause of action of any kind, suffered or incurred by any person arising from or in connection with these Terms of Service. The limitations in this clause apply whether or not kmoo was informed of the likelihood of any particular type of damages.

10.6 No third party beneficiaries
These Terms of Service do not provide any person or entity that is not a party to these Terms of Service with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.

11 Your representations and liability

11.1 Representations
You represent and warrant that you are over the age of 18 years (why?) and are authorised to enter into this agreement with kmoo and comply with the Terms of Service.

11.2 Indemnity
(a) You are solely liable for your use of the Service and the Device, and for the use of your Service and Device by any other person.
(b) You agree to defend, indemnify, and hold harmless kmoo, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to you in connection with these Terms of Service or the Service, from all claims, losses, damages, fines, penalties, costs and expenses (including legal fees on a full indemnity basis) by you or on your behalf, or by or on behalf of any third party or user of your Service, relating to this agreement (including these Terms of Service), the Services, including 000 dialling, or the Device.

11.3 Extension of indemnity
Without in any way limiting the generality of clause 11.2, the indemnity contained in clause 11.2 extends to any loss or damaged caused by:
(a) absence, failure or outage of the Service, including 000 dialling;
(b) your inability, or the inability of any other person, to be able to dial 000 or to access emergency service personnel;
(c) your or a User's use of the Service or Device;
(d) your or a User's use of the Service together with an interface device other than the Device; and
(e) removal of your Device from Australia.

11.4 Content
(a) You are solely liable for all liability that may arise out of the content transmitted by you or Users using the Service.
(b) No action of kmoo under these Terms of Service constitutes review or approval of your or a User's use or content.

11.5 Survival
This clause 11 survives termination of these Terms of Service.

12 Intellectual Property

12.1 Ownership
All intellectual property rights regarding the Service and the Device, including any software, hardware and Documentation embedded in or related to the Service or the Device, are and will remain the sole property of kmoo and its suppliers. Provision of the Service or the Device does not imply any transfer of intellectual property rights.

12.2 Licence
You obtain only a non-exclusive, non-transferable, revocable licence to use the Service, the Documentation, and any software hardware embedded in the Device in object code form (without making any modification to it) for the duration of the Service strictly in accordance with these Terms of Service.

12.3 kmoo's marks
All websites (including the kmoo Website), corporate names, service marks, trade marks, trade names, logos and domain names of kmoo are and remain the exclusive property of kmoo, and nothing in these Terms of Service gives you any right to use any of them.

13 General

13.1 Mandatory arbitration
(a) Any dispute or claim between you and kmoo arising out of or relating to the Service or the Device must be resolved by arbitration before a single arbitrator. The arbitrator's decision must follow the plain meaning of the relevant documents, and is final and binding.
(b) Without limiting paragraph (a), the parties agree that no arbitrator has the authority to award relief in excess of what these Terms of Service provide, or award punitive or exemplary damages.
(c) Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. All claims must be arbitrated individually and you must not bring or join any class action of any kind in court or in arbitration, or seek to consolidate or bring previously consolidated claims in arbitration.
(d) You agree that regardless of any statute or law to the contrary, you must refer to arbitration any claim or cause of action against kmoo arising out of or related to use of the Service, the Device or these Terms of Service within 1 year after the claim or cause of action arose or be forever barred.
(e) Nothing in this clause will prevent a party from seeking urgent interlocutory relief before an appropriate court.

13.2 Governing Law
(a) These Terms of Service are governed by the laws of the Australian Capital Territory.
(b) Each party irrevocably submits to the exclusive jurisdiction of the courts of the Australian Capital Territory, to the extent that court action is initiated to enforce an arbitration award or for any other reason consistent with clause 13.1.
(c) Each party irrevocably waives any immunity in respect of its obligations under these Terms of Service that it may acquire from the jurisdiction of any court or any legal process for any reason including the service of notice, attachment before judgment, attachment in aid of execution or execution.

13.3 Waiver
A failure by kmoo to exercise or enforce any right or provision of these Terms of Service does not constitute a waiver of such right or provision.

13.4 Entire Agreement
(a) These Terms of Service, the rates schedule for Services found on the kmoo Website and the applicable Software Terms and Conditions (if any) constitute the entire agreement between you (do we need separate terms & conditions for these?) and kmoo and govern your use of the Service, superseding any prior agreements between you and kmoo and any and all prior or contemporaneous statements, understandings, writings, commitments, or representations concerning its subject matter.
(b) No amendment to this agreement will be binding upon kmoo unless it is posted in accordance with clause 14.

13.5 Severability
If any part of these Terms of Service is legally declared invalid or unenforceable, all other parts of these Terms of Service are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of these Terms of Service.

13.6 Assignment
(a) You are not allowed to assign this agreement or any of your rights arising under it.
(b) kmoo is allowed to, at its sole discretion, assign this agreement or any rights arising under it to any affiliate or any other person upon notice to you.

14 Changes to these Terms of Service

(a) kmoo may change these Terms of Service from time to time by posting a notice of the change on the "News and Information" section of the kmoo Website.
(b) Such changes will become binding on you on the date that the notice is posted to the kmoo Website and no further notice by kmoo is required.
(c) These Terms of Service as posted supersede all previously agreed to electronic and written terms of service, including any terms included with the packaging or Device.

15 Privacy

The Service utilises, in whole or in part, the public Internet and third party networks to transmit voice and other communications. kmoo is not liable for any lack of privacy which may be experienced with regard to the Service. Please refer to our Privacy Policy applicable to you at www.kmoo.com.au for additional information.