1. IMPORTANT INFORMATION

SoftQuest Solutions Pty Ltd (SOFTQUEST) develops and installs integrated open source software and proprietary hardware and applications, and provides hosted services, aimed at delivering a range of convergent services and products. These allow emerging and established SMEs, large corporations and telecommunications operators to find the optimal solution to handle their current and future business application needs, improve their customers' and users' satisfaction, significantly reduce cost of ownership and operation, and improve bottom line profit. With a view to leveraging on the advanced design and inherent efficiency of SOFTQUEST platforms, we employ proven world-class system tools and protocols, open source standards and methodologies, in the development and deployment of our solutions.

These Terms & Conditions are binding on you and form part of the Contract you agree to enter into when you visit or use this website, or purchase our Services and Products, or download any of our applications or Third Party Content or Software. Your use of this website indicates your acceptance of these Terms & Conditions and any modifications to the Terms & Conditions, and has the same force and effect as if you had actually signed these Terms & Conditions. You should be aware that you are also bound by our Privacy Policy and our Acceptable Use Policy contained herein.

These Terms & Conditions do not limit, alter or modify any rights and obligations that you have under the GNU GENERAL PUBLIC LICENSE commonly known as the GPL when you download and use any open source application that we or any other third party make available for download on this website or from linked websites. Please read the GPL license before making changes and releasing changes to the general public of such applications. A copy of the GPL license may be obtained from www.softquestsolutions.com/gpl.php.

We also offer on the website mediation applets that link you with a number of VoIP providers. SOFTQUEST is not a telecommunications carrier and only offers tools to allow you the use of VoIP services offered by these Third Parties. By using a mediation applet you undertake to abide by the Terms & Conditions of the VoIP provider whose services you are using.

You acknowledge and agree that we may make changes to these Terms & Conditions without any prior notice by posting revisions and updated versions of this document on our website. It is your responsibility to regularly review these Terms & Conditions prior to the use of the website. You may identify whether SOFTQUEST has revised these Terms & Conditions by the "Last Modified" date first stated above. Except when expressly agreed to the contrary in writing by an authorized representative of SOFTQUEST, these Terms & Conditions supersede any other agreement, representation, or warranty made by SOFTQUEST, whether written, verbal, or otherwise.

In these Terms & Conditions:

1. 'you' and 'your' means you, the customer and/or visitor of our website, or where the customer is a company, 'you' and 'your' means the company, its servants, consultants, representatives and customers using Hosted Service as Transaction Intermediary;
2. 'we', 'our' 'SOFTQUEST' and 'us' means SoftQuest Solutions Pty Ltd (ABN 90 057 679 599), located at 553 The Panorama, Tallai, QLD 4213, Australia;
3. 'Third Party Software' means software offered by developers other than us on this website or from a linked website;
4. 'Third Part Content' means, collectively: (i) content and information licensed by us from third parties for display on our website, and (ii) content, information and material posted to our website by third party users of the website;
5. 'External Websites' means websites or resources other than this website over which SOFTQUEST does not have control;
6. 'Substance' means all information, documents and services provided on this website, including trademarks, logos, graphics and images;
7. 'Equipment' means any server product(s) that we may recommend from any third party vendor or is already available to you or is provided by us and on which our server Application is installed/hosted;
8. 'Application' means any software that we develop and/or deploy (also as as a Hosted Service) and/or resell and includes also the Online Manual/Help and/or downloadable Manual and/or hardcopy Manual;
9. 'Software License' means the Master License agreement that you are required to sign for the use of any of our commercial Application(s);
10. 'Services' means the service(s) you purchase from us;
11. 'Hosted Service' means use of Application installed on SOFTQUEST Equipment, or third party Equipment and to which you have access for a fee. In addition setting you up for use of such Application involves a one off setup fee;
12. 'Transaction Intermediary', or 'B2C Hubs', means Internet-based services designed to help customers search, compare, select and purchase on line;
13. 'Bandwidth' means the maximum shared data transfer rate that will be allocated for the use of the Hosted Service;
14. 'Bandwidth Quota' means the maximum number of Gigabytes permitted per month for data transfer from Hosted Service Equipment;
15. 'Disk Quota' means the maximum amount of disk space made available to you for the use of the Hosted Service on the Hosted Service Equipment;
16. 'Account' means access to certain restricted areas of our website made available to you once you have registered some personal information with us and have provided, or have been provided with a user name and password;
17. 'Online Manual' means the document which forms part of the Application and which contains technical information relating to the Application and its use (available as part of the Application (help menu), for separate download, on our website or in any combination thereof);
18. 'Product(s)' means Service(s) and/or Application(s);
19. 'Images' means drawings, images, photographs, or pictures that are otherwise graphical in whole or in part;
20. 'Licensor' means us or any Third Party that owns and licenses the use of Products, Substance or Content;
21. '$' or 'Currency' means (unless otherwise stated) Australian Dollar;
22. 'Trademarks' means the trademarks, service marks, brands, names, logos and designs of SOFTQUEST or others used on this website or the Products; and
23. 'Contract' means the Terms & Conditions governing our sale and use of Services and/or Hosted Service, and/or Applications, and/or provision of Equipment recommendation, and comprises these Terms & Conditions, Privacy Policy, the Acceptable Use Policy and Software License (together, the Contract). For Third Party Developers Contract means these Terms & Conditions and the specific Developer Contract. For all other uses of this website Contract means these Terms & Conditions.

When you purchase Products form us, we determine the supply to you, based on the following:

1. the particular terms for that Product in accordance with the Software License;
2. your ability to meet our credit requirements; and
3. your identification with a valid driver license or Passport, and/or your undertaking of the correctness and accuracy of identification details that you provide.

If you purchase our Products, you agree that:

1. you are at least 18 years old;
2. we may charge your nominated credit card;
3. we may check your credit rating in accordance with the Consent to Credit Check in order to credit approve you;
4. if you purchase our Products on behalf of a company or a corporation, you are duly authorised to do so by the company or corporation; and
5. you have read, accepted and agreed to be bound by the Contract.

You acknowledge that we may offer Third Party Software on our website. Download and use of Third Party Software is subject to the software license associated with it.

5. PROVISION OF SERVICES

5.1. Our terms of Service

We will provide the Service(s) with reasonable skill and care, and in accordance with the Service information available on our website and the Contract.

Our Service(s) are delivered electronically by means of Remote Access, Telephone, Chat or Email. Some Services can only be provided to you at your Equipment or office location. Charges for such services is based on time and material as well as other associated costs such as flights, transport and per diem rate. All costs incurred from third party providers such as flights, transportation, accommodation, etc attract an additional 10% administrative charge.

You will ensure at all times that we have remote access to the Equipment. We will also nominate and own the root password to Equipment. Disabling our access and/or changing the root password by you is a material breach of the Contract and will result in its immediate termination. Please refer to clause 17 concerning your obligation once the Contract has been terminated.

In order to access the Equipment, you may need to obtain identifiers such as static IP addresses from your Internet service provider. These identifiers may vary during the term of the Contract for reasons beyond your control. You are required to immediately notify us of any change to the identifiers by communicating it to us as soon as practicable (but no longer than 24 hours after such change has occurred).

We will also provide you with unique login details to access your Account. You agree to comply with the procedures specified by us from time to time regarding obtaining and updating passwords for the Account. You must keep these details confidential and secure to prevent unauthorised use of your login and password details. You will be responsible for any charges incurred through the use of your unique login details to access the Account until you provide us with reasonable notice that those details have been disclosed to an unauthorised person or unless we were responsible for an unauthorised disclosure of these details. You shall inform us immediately in writing of any actual or potential unauthorised access to a password or to the Account. Passwords are subject to cancellation or suspension by us at any time, including upon the misuse of the Account or breach of the Contract.

SOFTQUEST is not a hardware vendor. We are non-vendor specific and would always recommend the minimum specification for the required Equipment for each Application. We may mention from time to time vendor names in the Equipment specifications, however this is not a recommendation or solicitation to purchase the Equipment from these vendors and is provided by way of an example only. We do however recommend that as a minimum Equipment is purchased/leased with a 24/7 Gold Service. You agree that you are liable for the Equipment and any fault or Application failure caused by the Equipment.

Equipment, risk (that is, responsibility and liability) in the Equipment is always with you. From time to time, we may provide Equipment for your use with a Service free of charge for a limited time, in which case ownership of the Equipment remains with us and doesn't pass to you at any point in time. You are advised to ensure that adequate insurance arrangements are in place to cover damage to Equipment caused by accident, natural disaster, vandalism and theft.

You must only use the Equipment in accordance with instructions provided by Equipment vendor. You are responsible for all internal wiring, stowing, maintenance and repair of Equipment however damaged.

If you request us to install an Application, or if Application installation forms part of our supply obligations, we will endeavour to install the Application onto the Equipment within 3 to 10 working days of:

1. credit approval via our online verification, and the subsequent crediting of your account;
2. when your account is actually credited subsequent to cleared funds received by us (if other payment options are available and you have elected to use them); or
3. as otherwise determined by us.

In the circumstances stated below Application installation may extend to more than 10 working days:

1. we are prevented from access to the Equipment for circumstances beyond our control;
2. a natural and unavoidable catastrophe that interrupts the Application installation has occurred (force majeure);
3. a legal situation that prevents us from the Application installation has occurred;
4. you request or agree to a longer time frame; or
5. the Application installation requires third party approvals and such approval is not available within the stated time-frame.

If Application installation is not included as part of its price you will be charged for any Application installation we perform at the prices set out on our website, or otherwise on time and material basis. Application installation will be charged in advance.

Our Application installation fees do not include installation or configuration at your premises. Should you require Application installation and configuration at your premises you will be charged our normal call out and hourly rates.

6.4. Payment options

The preferred payment option is by PayPal or Credit Card.

If Application Online Manual is only available on our website it can be accessed by registering and login with the user name and password. Please note the following:

1. We are not responsible for providing or maintaining your Internet connection.
2. The Online Manual is adequate to enable you to operate the Product.
3. The Online Manual maybe amended from time to time. It is your responsibility to regularly review the Documentation section on our website.
4. You acknowledge our proprietary interest in the Online Manual. You will not copy or otherwise reproduce the Online Manual.
5. You shall be responsible for ensuring that the Products are used in accordance with the Online Manual.

8. SOFTQUEST AND THIRD PARTIES LIABILITY

8.1. Products liability

When used in accordance with any instructions provided by us and/or the Documentation and/or the Online Manual, the Application will function substantially in accordance with the Documentation.

All representations, conditions and warranties other than those expressly included in the Contract (whether express or implied, statutory or otherwise and including warranties as to merchantable quality or fitness for purpose) are expressly excluded.

Neither us nor any of our agents, affiliates, or providers of Third Party Software or Content or other linked websites shall be liable whether in contract, tort (including negligence) or otherwise for any indirect loss or damage (including any consequential loss or loss of profits) suffered or incurred by you arising out of or in connection with the Contract. We provide the Products, Content and any Third Party Content 'AS-IS' without any warranty of any kind.

If we become liable to you for any form of loss or damage, our aggregate liability will be limited to the 50% of the Application cost actually paid by you or 50% of the Service cost actually paid by you in the month such loss has occurred.

You acknowledge and agree that this website and/or the Products may include certain errors, omissions, outdated information which may affect the quality of the Substance. You acknowledge that the Substance have not been independently verified or authenticated in whole or in part by us, and agree that we do not warrant the accuracy or timeliness of the Substance and further agree that we have no liability for any errors or omissions in the Substance, whether provided by us or any third party.

SOFTQUEST, its officers, directors, employees and any third party providing Substance on this website make no representations, warranties, or guarantees as to the quality, suitability, truthfulness, accuracy or completeness of any information or Substance contained on this website and/or the Product information and any Third Party Content or Application. Unless otherwise explicitly stated, to the maximum extent permitted by applicable law, this website and/or Products and any information and Substance contained on the website is provided to you on 'AS-IS' and 'WHERE-IS' basis and is for personal or internal business use. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including any implied warranty of merchantability, fitness for a particular purpose or any purpose, or non-infringement of third party rights, are hereby disclaimed.

You acknowledge that the Trademarks and Products are the subject of copyright and that all intellectual property rights in the Trademarks, Products, Online Manual, Substance and associated documentation are owned by us or their respective owners. You further acknowledge that the name "SoftQuest Solutions" is a trade mark which may be used by us to identify printed output produced by the Products but such use does not give you any rights of ownership in the name "SoftQuest Solutions". You shall not during or any time after the expiry or termination of the Contract permit any act which infringes that copyright or trade mark rights. You may not use any trademark displayed on this website or in the Products without the express prior written permission of SOFTQUEST or the respective owner, and nothing contained on this website grants by implication, waiver, estoppel or otherwise, any right to use such trademarks.

Subject to the remainder of this clause, you shall not copy or reproduce the Application, in whole or in part. You are permitted to make copies of the Application only as is necessary to serve your internal needs for systems backup and security if the fact of copying and the number of copies is supplied to us by notice in writing immediately following the making of the copy. All copies of the Application and the Media in which the copies are contained shall be and always remain our property.

You shall mark all copies of the Application and the media in which the copies are contained with a notice setting out the following:

1. our ownership of the Application and the media;
2. the confidentiality of the Application; and
3. such other information as the Licensor may by notice require.

You shall produce all copies of the Application made by you to us upon receiving notice requiring their production.

You acknowledge that you have no right, title or interest on any legal basis to any information, documents and Products provided on our website as well as the Substance except as expressly stated in this clause.

We grant you the limited right to display the Substance only on your personal computer, and to copy and download the Substance displayed on this website, provided that:

1. both SOFTQUEST copyright notice (set forth below) and this permission notice appear in the Substance so displayed, copied or downloaded; and
2. such display, copy or download is solely for your personal and/or internal business purposes.

You acknowledge and agree that you have no right to modify, edit, alter or enhance any of the Substance in any manner. This limited license terminates automatically, without notice to you, if you breach any of these Terms. We may remove your postings from this website with or without cause. Upon any termination of this limited license, you agree to immediately destroy any electronic or printed Substance and cease using the website. If the Substance is licensed under the GPL license you may deal with it in accordance with the provisions of the GPL. Please consult the GPL license available at http://www.softquestsolutions.com/gpl.php.

We are committed to respect and protect copyrights of Third Parties and expect you to do the same. If while visiting or interacting with this website in accordance with the Terms & Conditions you believe that your work has been copied on this website in a way that constitutes copyright infringement, please contact us as soon as possible and provide us with the following information:

1. if you are not the owner of the copyright, an electronic or physical authorisation to act on behalf of the owner of the copyright interest;
2. a description of the copyrighted work that you claim has been infringed;
3. a detailed description of where the material that you claim is infringing is located on this website;
4. your physical address (not PO Box), telephone number, and email address (an email address that is not hosted through us);
5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
6. a statutory declaration that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

All intellectual property rights in the Service and/or Application you acquire from us or that we provide you, and the content of our website belongs to us or our Licensor. If we provide you with any Application to enable you to use a Service, it is on the condition that you are granted a non-exclusive, non-transferable license only to use the Application for that purpose. You must not copy, distribute, decompile, reverse engineer or modify the Application, nor copy the manuals or documentation (except as permitted by law).

For Application licensed under the GPL, please consult the GPL license available at http://www.softquestsolutions.com/gpl.php.

If we need to contact you we will do so, at our option, via your nominated email address, your postal or residential address, or postings to your online account, and, if notifications are applicable to you as well as to the general public, by posting on our website. You will be deemed to have received a notice at the time which occurs the earliest:

1. your actual receipt of that notice, or
2. on the day an email is sent to your nominated email address, or
3. on the day a notice is posted to your online account, or
4. on the day a notice is posted on our website, or
5. 2 working days after a letter is mailed to you if your postal address is in Australia and 5 working days if your postal address is overseas.

You will at all reasonable times subject to a request being submitted to permit us or our professional representatives (including relevant technical and legal or financial professional representatives) to enter the premises housing the Equipment onto which the Application is installed and render any assistance and information related to our Products which we may reasonably require for the purpose of ensuring that you are complying with your obligations under the Contract.

While the Contract remains in force and for 6 months following termination we may at our expense have the Equipment audited (insofar as it relate to the Application and Software Licenses) by a person nominated by us.

If, as a result of any inspection or audit, we notify you that we are dissatisfied with any aspect of your operations in relation to the Contract you will promptly:

1. pay the reasonable costs of the audit; and
2. take such other action as we may specify in order to comply with the Contract.

Your contract will be immediately terminated if you fail to remedy the fault by taking the actions that we specify within 3 working days of our notification.

You are responsible and liable to pay for the use of the Products (even in the event that you have not authorised their use).

You agree:

1. to keep confidential and secure all identification and login information required to access our website and the Account. You are liable for all fees resulting from the use or misuse of the website when accessed using your login information, whether authorised by you or not;
2. to immediately report any misuse of your Account or disclosure of your login details so that we may suspend your Account in order to prevent your further liability under paragraph (a);
3. that you will not resell the Products we provide to you;
4. to ensure that all information you provide us with is correct (including contact details, credit card and account details) and kept up to date. If you move from your Premises or your contact or billing details change, you must notify us as soon as reasonably possible, but not later than 2 working days from the date of change;
5. that you are responsible for maintaining a reasonable level of security on the Equipment against computer viruses and other possible security problems;
6. that you will use the Products and your access to our website in accordance with the law and only for legal purposes;
7. to pay for the Products by the due date;
8. to comply with the Acceptable Use Policy, and ensure that anyone you authorise to access areas of our website restricted by user name and password complies with that policy;
9. to regularly check your nominated email account and our website for notices regarding use of the Products or any other notice that may apply to you;
10. that you are responsible for your use of the Application and the Equipment, including any content you transmit or make available using the Equipment or the Service;
11. to reimburse us for any loss or damage that we may suffer due to your breach of the Contract;
12. that we are not responsible for any content you are able to access on our website, or any content transmitted or made available to you or others from our website;
13. that we are not responsible for ensuring the data or information or Content, or Third Party, or Substance you access through this website will be, secure or free of anything (including viruses) which may damage the Equipment or the Application.

You are prohibited from taking any action to circumvent or attempt to circumvent the security and access control provisions of our website, Products and Services. Such prohibited conduct includes, without limitation, any efforts to:

1. login to an account with a password not assigned to you;
2. access personally identifiable information not intended for you;
3. test the security measures on the website and/or attempt to identify system vulnerabilities;
4. impersonate any other user of the website and/or the Products or forge any of the header information in any posting or tamper with the TCP/IP packet header;
5. modify, reverse engineer, disassemble, decompile or otherwise attempt or allow others to attempt to discover the underlying computer code for the website and/or the Applications, and/or the Service; or
6. overwhelm or disable the website or the Products or interfere with the access and use of the website and/or the Products by any other user.

If we become aware of any of the foregoing activities, we may investigate and may respond, and when appropriate, we may work with law enforcement authorities in such investigations and for the purpose of prosecuting offenders.

SOFTQUEST makes no representation that the Products or the Substance are appropriate or will be available for use in locations other than Australia. If you use this website or the Services and Application from outside Australia, you are entirely responsible for compliance with applicable local laws, including but not limited to the taxation, export and import regulations of other countries in relation to the Substance, the Third Party Software or the Third Party Content. You may not assign, voluntarily, by operation of law, or otherwise, any rights or delegate any duties under these Terms & Conditions without our prior written consent, and any attempt to do so without that consent will be void.

If you subscribe to any Service we will try to make that Service available to you at all times. Unfortunately, Services may be affected by network congestion, Equipment failure and other factors outside our control that may affect temporarily their availability. Therefore we cannot guarantee that our Services will be available at all times error free. We also cannot accept responsibility (nor provide any service rebates) for any Service failure or degradation that occurs as a result of:

1. anything we have not supplied to you, such as the Equipment;
2. regular maintenance of our Equipment, Software and website;
3. temporary suspension of our website due to security breach;
4. network congestion;
5. website unavailability due to our Internet provider;
6. event of force majeure;
7. your use of the Application in an incorrect or unauthorised manner or use not in accordance with our Online manual or failing to update the Application.

We issue bills to you for the Charges you have incurred using the Services that you have purchased from us as and when due. We send our bills to you electronically (if you choose, you can view and receive online bills by login into your Account) or we may at your request send you hard copy bills via postal services. An additional fee maybe charged for the issuance of hard copy bills. We try to include all our charges relating to a billing period in each periodic bill. However, if this does not happen, billing arrears and/or payment arrears will be charged in subsequent bills for the period dating not more than 190 days from any previous billing period. It is our standard practice to post your bills electronically to your online account and/or email them to you.

The fees and charges in relation to our standard Products is set out in detail on our website www.softquestsolutions.com. We may update these fees and charges from time to time. In most cases fees are charged in advance prior to provision of Applications or Services. You must pay us any applicable taxes we include in your invoice, including GST. Our products and services are sold both locally and internationally therefor unless expressly stated otherwise, all fees and charges displayed on our website are EXCLUSIVE of GST. Iif your business address/operations require you to pay Goods and Services Tax (GST) you must pay us an additional amount equal to the amount of GST applicable. All GST amounts will be clearly itemised on each invoice.

15. PAYMENT

15.1. Obligation to pay

Your obligation to pay as and when due for Applications and/or Services that you have purchased cannot be delayed, differed or reduced for any reason whatsoever.

We will post your statements/invoices online, accessible through your Account using your login details. We will also email statements/invoices to your nominated email address. If you believe there is a mistake in your invoice, please inform us as soon as possible so we may investigate your query. However the invoice must be paid by you on the payment date indicated therein. If we determine that a billing error has occurred, the resulting additional debit or credit will be added and/or subtracted from your next invoice, or refunded to you.

By paying using the credit card, you must provide us with accurate account details. If your credit card details change, or your credit card is canceled, you must notify us as soon as possible (not later than 5 working days). We will automatically charge invoiced amount for Application and/or Services to your nominated credit card on your billing date. You agree that we are entitled to charge your credit card, or invoice you for any fees or charges outstanding subsequent to termination of the Contract.

If the option to pay via BPAY is available and you selected to pay using this option, you must provide us with accurate address details. If your details change, you must notify us as soon as possible (not later than 5 working days). We will automatically issue the invoiced amount to your nominated email address on your billing date. You must pay the invoices timely so that the payment is reflected in our bank account within 7 days of issue of invoice. You agree that we are entitled to charge your credit card, or invoice you for any fees or charges outstanding subsequent to termination of the Contract.

If payment is not received on or before the due date, (except any amount which is validly disputed and the disputed amount is authorised by us prior to the payment date), we may charge you a late payment fee and/or interest up to 1.5% per month calculated on the daily balance of the unpaid amount from the due date until the date of payment in full. At our sole discretion and election, we may waive any late payment fee or interest if you can establish to our satisfaction that you are experiencing real financial hardship. If payment is not received by the due date, or if your credit card is declined or there are insufficient funds in your debit account, we will use reasonable attempts to contact and inform you by emailing a notice to your nominated email address and/or posting it to to your online account. A honour fee of $40 will apply to any declined payment. If you fail to make payment within 7 days of our notice being sent, we may charge you a $40 late payment fee and in addition interest at 1.5% per month calculated on the daily balance of the unpaid amount from the due date until the date of payment in full.

If amounts invoiced to you continue to remain outstanding, we reserve the right to suspend the Service and the use of the Application until you pay the outstanding amounts, and terminate the Service and/or the use of the Application if you do not pay such amounts within 30 days of the date of the outstanding invoice. If you revoke authorisation to charge your credit card, or if for any reason your card issuer does not pay us, you are still liable to pay us the invoiced amount using other methods on or before the due date.

We may vary the Contract (including our fees) at any time by providing you with reasonable notice, unless prior notice is not possible due to legal or regulatory reasons. If a variation is substantially to your detriment (excluding any variation we are required to make due to legal or regulatory reasons), we will allow you to terminate the Service or the Software license without penalty within the 30 day notice period. If you do not terminate the Service or the Software License, your acceptance of the variation will be deemed upon expiry of the 30 day period.

Either of us may terminate the Contract: 1) for convenience by giving at least 30 days notice (you may give us notice using any form of contact specified onwww.softquestsolutions.com/contact.php) prior to the requested termination date, and termination will be effective 30 days after the date the notice has been received by us; or 2) immediately upon notice (you may give us notice using any form of contact specified on website page) if the other party:

1. commits a material breach of the Contract which is capable of remedy, and that party fails to remedy the breach within a reasonable time of notice to do so (or, if such material breach relates to payment, the time frame specified in section 15.5);
2. commits a material breach of the Contract which cannot be remedied (which includes, but is not limited to, breach of the Acceptable Use Policy); or
3. is the subject of a bankruptcy order, becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or goes into voluntary (otherwise than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over its assets.
4. For the avoidance of doubt, your failure to pay an invoice as and when due is a material breach of the Contract.

If the Contract is terminated and the termination date is before the end of any agreed period applicable to your Service or Software License, you will be charged Early Termination Payments of up to one monthly invoice for a regular Service and up to 10% of the annual cost of the Software License fee. If you revoke authorisation to charge your credit card, or if for any reason your card issuer doesn't pay us, you are still liable to pay us the total Early Termination Payments invoiced amount using other methods on or before the due date. You will not be charged Early Termination Payments where:

1. we terminate the Contract for convenience by giving you 30 days notice;
2. you terminate for our insolvency; or
3. you choose to terminate because we notified you of a variation to the Contract that is substantially to your detriment.

We may terminate the Contract, or suspend a Service or the use of the Application for such period as we reasonably deem fit, immediately and without notice to you if:

1. we reasonably suspect fraud or breach of the Acceptable Use Policy by you; or
2. we are required to do so to comply with an order, instruction or request of a Regulator, an emergency services organisation or any other competent authority. If we suspend or terminate your Service or Software License under this section we will make reasonable attempts to notify you as soon as reasonably practicable.

Termination will not affect either party's respective rights or remedies. Upon termination, you must immediately pay us all monies due, including, but not limited to, all charges incurred up to the date of termination and any applicable Early Termination Payments, and we are entitled to charge your credit card or debit your account for such amounts. Except where Early Termination Payments are applicable, we will provide a pro-rata refund of amounts paid in advance for Service and/or Software License you paid for but did not receive, or offset such amounts against any monies owed by you. Upon termination any Software Licence we have granted to you will immediately terminate, and you must return to us or destroy the Application and any copies of the Application as we may direct.

We need to collect personal information from you in order to supply you with Service and Application. You agree that we may collect this personal information for the purposes of supplying you with Services and Application unless you notify us otherwise, in which case the delivery of Services and Application may be affected. Any information we collect will be carefully dealt with in accordance with our Privacy Policy. Personal information has the same meaning given in the Privacy Act 1988 (Cth) and will be treated in accordance with the Privacy Act 1988 (Cth).

19. WARRANTIES AND LIABILITY

19.1. Our limited Liability

Where our liability cannot be excluded by legislation (including the Trade Practice Act 1974 (Cth) and State fair trading legislation) any condition or warranty implied by legislation will apply. To the extent permitted by such law, if we are able by law to limit your remedy for a breach of such condition or warranty, our liability for any breach of that condition or warranty will be limited, at our option, to one or more of the following:

1. if the breach relates to goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods or the cost of replacing, repairing or acquiring equivalent goods; and
2. if the breach related to Services, the re-supply of the Services or the payment of the cost of having the Services re-supplied. Subject to our obligations under any non-excludable conditions or warranties implied by law, to the maximum extent permitted by law we will not be liable to you or to any other person for:
1. any loss of profit, loss of savings or data or for any indirect or consequential loss, including any losses that may reasonably be supposed to have been in the contemplation of the parties (as at the date of the first supply of the Service) as a probable result of any act or omission, arising out of or in connection with the supply of the Service under the Contract or otherwise in connection with the relationship established by the Contract, including any loss or damage caused by our negligence or any fundamental breach of the Contract;
2. acts or omissions of other providers of telecommunications or Internet services (including domain name registration authorities) or for faults in or failures of their Equipment;
3. faults or defects in any facility or Equipment (including the Equipment and any Application) that we supply to you, or in the Service, which are caused by or contributed to by your, or a third party's, conduct or misuse; or
4. faults or defects that arise from Services not provided under the Contract (even if they are part to the Contract, or authorised by us), which are due to any Application we provide or the Equipment that we may provide to you pursuant to paragraph 6.1. Unless expressly stated in the Contract, and to the maximum extent permitted by law, all other implied conditions and warranties are excluded.

Subject to our obligations under the implied conditions and warranties in the Trade Practice Act 1974 (Cth) and equivalent State or Territory legislation and to the maximum extent permitted by law, our maximum aggregate liability for all claims under or relating to the Contract or its subject matter, whether in contract, tort (including without limitation negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to an amount equal to (1) months' Service or Software License fees paid by you under the Contract.

You agree to defend, indemnify and hold harmless SOFTQUEST, its affiliates, representatives, partners, directors, agents and employees from and against any and all liabilities, claims, costs and expenses, including legal fees, that arise out of or in connection with your use of this website and/or the Products, any transaction related to the acquisition of Third Party Software or Third Party Content, or a breach of these Terms & Conditions.

You agree that we may transfer, assign or subcontract all or part of our rights and obligations under the Contract to our business partners, related bodies corporate or reputable credit worthy third parties. You cannot transfer any of your rights or obligations under the Contract, and if you do so you will remain liable for all fees and charges incurred for the Service or Software License.

If you need to contact us for any reason, including in relation to the Contract or any complaint, our contact information is available on our website www.softquestsolutions.com. Whenever you contact us by phone and the call is diverted to a voice mail we will endeavor to contact you in the manner requested in the voice message within 5 working days. All written correspondence will be answered within 5 to 10 working days from the date it has been received by us.

Each of us must comply with the Spam Act 2003 (Cth). For your benefit, a number of your important obligations under the Spam Act 2003 (Cth) are highlighted in the Acceptable Use Policy in Section 23. You agree that we may send notices regarding the Service and Applications, including, but not limited to upgrades and invoices, to your nominated email address. You agree that we may send you commercial electronic emails promoting our Services and Applications. If you no longer wish to be sent these promotional emails you may unsubscribe by notifying us using any of the methods specified on the website.

23. ACCEPTABLE USE POLICY

23.1. Important Information

This Acceptable Use Policy (AUP) has been implemented to ensure that your use of the Service, Application and our website does not break any laws, hinder the operation of our website or Services or interfere with the use of our Services or website by other customers. It is binding on you and forms part of the Contract you agree to enter into when you use or purchase our Products and/or Services or visit our website. Your purchase of Product or use of the Service and/or our website indicates your acceptance of this AUP, and has the same force and effect as if you had actually signed this AUP.

You will be allocated a user name and password in order to access some areas of the website and the Account. You must keep these private and confidential to prevent unauthorised use of the Service, restricted areas on the website and the Account. You will be responsible and liable for the use of your Account, or any charges incurred through the use of your Account using your unique login details. If you think that your login details are no longer private or confidential, or that another person has gained unauthorised access to your Account, you must notify us immediately.

We may monitor your Account and website postings to ensure compliance with the Contract, including this AUP. If, in our reasonable opinion, you fail to comply with this AUP, we may (but are not obliged to) suspend or terminate your access to the website and/or our Services. We will notify you if we do either of these things. If we suspend or terminate your access to the website or Service or Software License, you will remain liable for any Early Termination Payments as if you had terminated the Service or Software License yourself.

If, in our reasonable opinion, you use the website or Service or Application in any way which is illegal or detrimental to our website, Services or other customers or visitors to our website, we may also suspend or terminate your website access or Service, or Software License, or delete or edit your data that is stored on our computer systems (including any content).

You cannot use, attempt to use, or allow anyone else to use the website or Services through your account that:

1. results in a breach of any applicable law, order, regulation or mandatory code of conduct, or infringes the rights of any party (including through fraudulent, deceptive or illegal activity, infringement of copyright, international data protection laws or any intellectual property rights, infringement of censorship or creating or forwarding defamatory statements);
2. results, or could result in damage or injury to property or persons (including harassing, menacing or stalking);
3. unlawfully incites discrimination, hate or violence, or is offensive to a particular group of people, due to their race, religion, gender, nationality or sexual preference;
4. seeks inappropriate access to or contact with minors, or enables them to access inappropriate material;
5. frame or link to our website any of the content or information available from the website unless we expressly consents to such linking and/or framing;
6. use any robot, spider or other program or device to retrieve or index any portion of the Site; or
7. results in engagement in illegal, misleading or deceptive business or marketing practices, or which involves providing or promoting an illegal pyramid selling scheme or unlawful gambling or gaming activities.

Without limiting the generality of foregoing, you acknowledge that we expressly prohibit and you agree not to:

1. do anything that causes or may cause third party service providers or other websites to place our website (IP) addresses on a blacklist and/or block those IP addresses;
2. post any false, inaccurate or misleading Third Party Content;
3. make any changes, additions and/or deletions to any of the Third Party Content posted by any user without the express written authorization of such other user;
4. include any misleading, irrelevant and/or hidden keywords in any Third Party Content posted by you;
5. publish any material that is obscene, defamatory or offensive;
6. send any electronic chain letters, or distribute messages to inappropriate or unrelated forums, newsgroups or mailing lists;
7. access, post or disseminate any material that is unlawful, including RC or X rated material, or material that would be R rated where a Restricted Access System which complies with the criteria determined by the Australian Broadcast Authority is not in place;
8. post or transmit any content that is illegal, detrimental to the our website, our Services or our customers;
9. gain, or attempt to gain, unauthorised access to any computer system, including unauthorised access to the website (for example, by attempting to use the account of another user);
10. participate in any attempt to cause any computer system (including our website) to malfunction, whether by way of virus, worm, Trojan horse, denial of service attack or otherwise;
11. send, cause the sending of or otherwise be involved in the sending of SPAM (unsolicited bulk electronic emails);
12. connect with any program (including virus, Trojan horse, work, cancelbot, time bomb) or activity (including a Denial of Service attack) that is designed to provide or allow any form of unauthorised control of, or result in an adverse effect on, a computer, network or data (including SOFTQUEST's);
13. create, send or alter in any way and by any means (including spoofing and use of third party mail servers) the contents of an electronic message for the purpose of hiding, obscuring or deleting the source of the message or making the message appear to come from someone other than you;
14. use the Service or our website in a way that is detrimental to our network, services or customers;
15. take any action that imposes an unreasonable or disproportionately large burden on our website's and hosted services infrastructure;
16. harvest or otherwise collect information about other users for any purpose other than use of the website and/or Service and/or Software as expressly permitted herein; or
17. manipulate or use our website, Service or Software other than advise in the Terms & Conditions.

In addition to the foregoing, if you are a developer that makes Third Party Software available to users via our website, you acknowledge that we expressly prohibit and you agree not to:

1. post Third Party Software or Third Party Content in inappropriate categories or areas on the website;
2. post or otherwise make available to users via the website any: (i) Third Party Software or Third Party Content that does not materially benefit users of SOFTQUEST products and services; or (ii) Third Party Software or Third Party Content that is competitive with, or which otherwise benefits competitors of, SOFTQUEST products and services;
3. use the Site if you are not able to form legally-binding contracts, are under the age of 18, or are temporarily or permanently suspended from use of our website;
4. fail to deliver Third Party Software or Third Party Content purchased or otherwise acquired from you, unless the acquirer fails to meet the posted terms for such content;
5. circumvent or manipulate the billing process established by us to facilitate processing of orders and/or payments on your behalf; or
6. transfer or otherwise allow others to use your developer account and user ID without our prior written consent.

The foregoing list of prohibitions in this section is illustrative and is not intended to be complete or exclusive. We reserves the right to terminate our relationship with you under these Terms & Conditions and prohibit your access to our website and/or Service and/or Applications, to remove any Third Party Software or remove, edit or close any Third Party Content or thread on any message board or chat room for any reason, including, without limitation, any action that SOFTQUEST, in its sole judgment, determines to be inappropriate or disruptive to the website, Service, Application or to any user.

The foregoing prohibitions in this section do not impose on us, and we do not assume, any obligation to monitor or remove any Third Party Content or other communication posted by you or any other user on our website. You hereby acknowledge and agree that you may be exposed to Third Party Content that may be offensive or objectionable to you. You hereby acknowledge and agree that all Third Part Content submitted by you or any other user express the view of the author of such content, and we will not be held responsible for or liable for the content of any Third Party Content. Your access to this website and our Services is undertaken at your own risk and we are not responsible for any offensive or otherwise objectionable materials that may be posted by any third party.

You must comply with all laws relating to SPAM, including the Spam Act 2003 (Cth), including:

1. in any bulk solicited email you send, you must include in each such message an email address, telephone number, facsimile number or mailing address that can be used to notify you that the recipient no longer wishes to receive such messages from you; and
2. if you are notified that a recipient no longer wishes to receive bulk emails from you, you must immediately comply with that request. Our website shall not be used for commercial emailing purposes.

We are not responsible for any material or content that you upload to our website or transmit or any other publishing mediums accessed via our website, and it is your responsibility to ensure that such content complies with all applicable laws and regulations, and to take appropriate precautions to ensure minors do not view inappropriate content.

We are not responsible for content you are able to access using our website, and you should be aware that content and materials you are able to access using our website may be harmful or cause loss to you or others. This includes, but is not limited to:

1. downloading content or features to your computer that may introduce viruses;
2. purchasing goods or services over the Internet;
3. transmitting confidential information over the Internet;
4. accessing or viewing content on the Internet available using the website, including Content that is inappropriate for minors.

You should be aware the you have the right to make a complaint about content viewed on the Internet to the Australian Broadcasting Authority that is or would be classified RC, X or R and does not have a Restricted Access System in place.

You should be aware that you may need to comply with the conditions of use of other networks if you gain access to those networks.

We may need to make amendments to this AUP from time to time. Such amendments will reflect in our Terms & Conditions. We may post a message on our website notifying changes to the AUP and/or the Terms & Conditions, however it is your responsibility to read our Terms & Conditions prior to using our website, Service or Application. This AUP was last updated on 1 November 2007. You should regularly check this AUP section for amendments.

We allow third parties and any developer that complies with the Terms & Conditions to use our website to post content and software. The Third Party Software available on our website is, in each case, the copyrighted work of the respective developer, and may be subject to license agreements, terms of use and/or privacy policies of such developer. In addition to the Terms & Conditions herein, you acknowledge and agree that we are not a party to, nor are we otherwise involved in, the actual transaction between the developer and users in the acquisition of Third Party Software provided by such developer through our website or in any other manner. We do not control such transactions and do not guarantee the quality, accuracy, legality or safety of Third Party Software and content, nor do we guarantee the ability of developers to provide Third Party Software or the ability of acquirers to pay them. All transactions shall be governed by terms of sale executed by and between the developer and the acquirer. SOFTQUEST disclaims all warranties with regards to Third Party Software and content, including all implied warranties of merchantability, fitness for the declared purpose or any other purpose and non-infringement of copyright.

Third Party Content available on our website is, in each case, the copyrighted work of the respective third party or third party user of the website. You acknowledge that you are responsible for the Third Party Content you post to our website and that you, and not SOFTQUEST, will have full responsibility for the Third Party Content you post, including its legality, reliability, appropriateness, originality and copyright. By posting any Third Party Content to our website that contains images, you warrant and represent that:

1. you are the copyright owner of such Images, or that the copyright owner of such Images has granted you permission to use such Images or any content and/or images contained in such Images consistent with the manner and purpose of your use and as otherwise permitted by these Terms & Conditions;
2. you have the rights necessary to grant the licenses and sublicenses described in these Terms; and
3. that each person depicted in such Images, if any, has provided consent to the use of the Images as set forth in these Terms & Conditions, including, by way of example, and not as a limitation, the distribution, public display and reproduction of such Images. No compensation will be paid with respect to the use of your Images.

Unless otherwise explicitly stated herein or in the Privacy Policy, you agree that any Third Party Content provided by you in connection with this website is provided on a non-proprietary and non-confidential basis. Subject to our compliance with our Privacy Policy, you agree that we shall be free to use or disseminate your Third Party Content posted to our website on an unrestricted basis for any purpose. If you post such Third Party Content to this website, you grant SOFTQUEST a nonexclusive, worldwide, royalty-free license to (in any media now known or not currently known or invented) link to, utilize, use, copy, exploit, and prepare derivative works of the Third Party Content and to sublicense those rights through multiple tiers of sublicenses. No Third Party Content you submit shall be deemed confidential. However, we agree to use your Third Party Content in accordance with SOFTQUEST Privacy Policy contained herein. Some Third Party Content may be licensed by us for use on this website. Such Third Party Content shall be subject to the license set forth above unless such Third Party Content indicates that it is subject to other terms, in which case such other terms shall apply. Notwithstanding anything herein to the contrary, you hereby assign to SOFTQUEST all right, title and interest worldwide in all intellectual property rights in and to any new feature that you may suggest or submit to us relating to the SOFTQUEST Applications and you acknowledge and agree that SOFTQUEST may use such suggestion or submission in any manner, including, without limitation, to develop features for this website. SOFTQUEST disclaims all warranties with regards to Third Party Software and content, including all implied warranties of merchantability, fitness for the declared purpose or any other purpose and non-infringement of copyright.

If you have a dispute with any other user or developer using our website you hereby declare that you release SOFTQUEST, its officers, directors, agents, partners, affiliates, joint ventures and employees from claims, demands, liabilities and damages of any kind and nature (real or implied), known and unknown arising out or in any way connected with such disputes.

25. LINKS TO OTHER WEBSITES

25.1. General

We may provide on our website links to other websites. Such links do not constitute an endorsement by us of those websites. You acknowledge that we are providing these links to you only as a convenience, and further agree that we are not responsible for the content of such websites, services that they provide or their operation. Your use of Other Websites is subject to the terms of use and privacy policies located on such Other Websites. We reserve the exclusive right, at our sole discretion, to add, change, decline, or remove without notice any feature or link to any of the Linked Sites from this website and/or introduce different features or links to different users of this website.

If you subscribe to a mediation applet service in order to link to VoIP providers you do it at your own risk. SOFTQUEST disclaims all warranties with regards to quality of voice, its availability, coverage or the call rates. You agree to abide by the Terms & Conditions of the VoIP provider that you are connecting with.

DIGITAL VOICE (OTHERWISE REFERRED TO AS VOICE OVER INTERNET PROTOCOL OR VOIP) TELEPHONE SERVICES REQUIRE MAINS ELECTRICAL POWER AND WILL NOT BE AVAILABILE IN THE EVENT OF A POWER OUTAGE AFFECTING YOUR PREMISES OR IN THE EVENT OF INTERNET OUTAGE. IT MAY ALSO BE SUBJECT TO CHANGING QUALITY OF YOUR BROADBAND LINK. CONSIDERATION SHOULD BE GIVEN TO MAINTAINING A WORKING LINE POWERED TELEPHONE CONNECTED TO STANDARD PUBLIC SWITCHED TELEPHONE SERVICES OR A MOBILE PHONE, FOR USE IN EMERGENCIES.

In the event that payments for such third party services are collected through an account established on our website we will provide you with means to prepay these services. Although we may provide you with Call Detail Records for such services, we do not undertake any responsibility for the use of VoIP services. If you are dissatisfied with the VoIP services available from these Third Party Service providers you agree and undertake that your sole remedy is to discontinue the service.

26. LAW AND JURISDICTION

26.1. General

These Terms & Conditions will bind and inure to the benefit of SOFTQUEST and its respective successors and permitted assigns. The failure of SOFTQUEST to enforce any right or provision in these Terms & Conditions shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. No joint venture, partnership, employment or agency relationship exists between you and us. Except for our rights to modify these Terms & Conditions as described above, these Terms & Conditions may be amended or supplemented only in writing and signed by duly authorized representative of SOFTQUEST. If any of the provisions of these Terms & Conditions shall prove to be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired.

If a dispute arises as a result of the use of this website, the Contract, the Products, Services, Substance, or any Third Party Content or Software you must provide us with written notice of the nature and details of the dispute ("Notice of Dispute"). You and us ("the Parties") must endeavour to negotiate and agree upon a resolution of the dispute. The Parties acknowledge that it is in their respective interests to resolve all disputes without reference to external dispute resolution mechanisms.

Should the Parties fail to reach a solution within ten (10) days (or such other period as the Parties may agree) of receipt of the Notice of Dispute, the Parties may proceed to mediation. The mediation shall hold in the Gold Coast, Queensland. The mediator shall be agreed between the Parties or, failing agreement, shall be an accredited mediator appointed by the Queensland Chapter of the Institute of Arbitrators and Mediators Australia. The Parties agree to abide by the mediation rules agreed between them or, failing agreement, by the mediation rules of the Institute of Arbitrators and Mediators Australia, in seeking to resolve the dispute as set out below.

If the dispute cannot be settled within thirty (30) days (or such other period as the Parties agree) after the mediator has been appointed; or if the Parties do not agree to mediation, within ten (10) days of receipt of a notice of dispute, the dispute may be referred, at the instance of either Party, to the Chairman of the Queensland Chapter of the Institute of Arbitrators and Mediators Australia for the appointment of a graded arbitrator who shall arbitrate the matter in accordance with the provisions of the Commercial Arbitration Act 1990 (Cth). Unless the Parties agree otherwise, the place of arbitration shall be the Gold Coast, Queensland.

Notwithstanding the existence of a dispute, you shall continue to abide by the Contract.

These Terms and Conditions are governed by the law in the state of Queensland, Australia. In relation to any proceedings about or in connection with this agreement, SOFTQUEST and you agree to submit to the non-exclusive jurisdiction of the courts in the State Of Queensland.