Terms and conditions of use of the auction website

Updated 8 May 2010

1. The website (the 'website') is owned and operated by the Australian Communications and Media Authority ('ACMA').

2. By accessing or using the website, you agree to be bound by the terms and conditions of use set out below ('Terms of Use'). Accessing or using the website constitutes a legal agreement between yourself and ACMA. By continuing to access or use the website you are confirming that:

  1. you are authorised to use or access the website and, in the event that your are using or accessing the website on behalf of another person or entity, you are authorised to do so;
  2. you have read, considered and understood the Terms of Use and agree to be bound by them; and
  3. you have read, considered and understood the legal instruments referred to in the Terms of Use and agree to act in accordance with those legal instruments.

3. The Terms of Use include the general ACMA Terms and Conditions of Use (located at http://www.smartnumbers.com.au/smartnumbers/action/content?method=viewTermsAndConditions), the ACMA Privacy Statement (located at http://acma.gov.au/theACMA/About/Corporate/Accountability/privacy-policy) (the 'additional terms and conditions'). In the event of any conflict between these Terms of Use and the additional terms and conditions, these Terms of Use will prevail. References in the additional terms and conditions to 'website' include the website.

4. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, DO NOT ATTEMPT TO CONTINUE TO ACCESS OR USE THE website.

5. THE TERMS OF USE MAY CHANGE FROM TIME TO TIME. WHILE WE WILL ENDEAVOUR TO ENSURE THAT CHANGES TO THE TERMS OF USE ARE NOTIFIED ON THE website, BY CONTINUING TO USE OR ACCESS THE website, YOU AGREE TO BE BOUND BY THE TERMS OF USE AS THEY EXIST AT THE TIME OF EACH USE OR ACCESS. YOU ALSO AGREE TO CHECK THE TERMS OF USE EACH TIME YOU ATTEMPT TO USE OR ACCESS THE website, IRRESPECTIVE OF WHETHER YOU ENTER THE website FROM THIS OR ANOTHER PAGE. THESE TERMS OF USE WERE LAST UPDATED ON 8 May 2010.

Terminology

6. The following terminology is used throughout the Terms of Use:

  1. References to 'we', 'us', and 'ours' are references to ACMA.
  2. References to 'you', 'your' and 'yours' are references to the persons accessing the site.
  3. References to 'access' or 'use' include, but are not limited to, browsing the website, searching for information using the website, submitting information or applications using the website and making payments using the website.
  4. References to 'WWW' are references to the World Wide Web.
  5. References to 'auction' and 'auction process' are references to auctions organised and run pursuant to the legal instruments.
  6. References to 'legal instruments' are references to the:
    1. Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2007 (No. 1) (http://www.comlaw.gov.au/Series/F2007L01427);
    2. Telecommunications Numbering Plan Number Declaration 2004 ( http://www.comlaw.gov.au/Series/F2005B00940); and
    3. Telecommunications (Freephone and Local Rate Numbers) Directions 2004 (No. 1) ( http://www.comlaw.gov.au/Series/F2005B00220); and any amendments to those instruments that may be made from time to time.
  7. A reference to a 'Application for Registration' is a reference to the registration process set down in the Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2007 (No. 1).
  8. A reference to 'Allocation Application' is a reference to the allocation application process set down in the Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2007 (No. 1).
  9. A reference to 'Participation Notification' is a reference to the participation notice process set down in the Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2007 (No. 1).
  10. A reference to 'INMS' is a reference to Industry Numbering Management Services Ltd.
Use of the website

7. You agree that you will not:

  1. breach these Terms of Use;
  2. obtain or attempt to obtain unauthorised access to any part of the website;
  3. attempt to change, add to, remove, deface, hack or otherwise interfere with the website or any material, information, or content contained in or displayed on the website;
  4. use or attempt to use the website for any unlawful purpose;
  5. use or attempt to use the website for any purpose for which it was not intended;
  6. use or attempt to pass yourself or another user off as another person or entity;
  7. use or attempt to use the website to send, post or publish defamatory, offensive or intimidatory material;
  8. use or attempt to use the website for the purposes of sending unsolicited emails to ACMA, it employees, delegates, independent contractors, users of the website or participants in the auction process;
  9. use or attempt to use the website to manipulate the outcome of an auction, including, but not limited to dummy bidding;
  10. use or attempt to use the website in a manner that is inconsistent with the legal instruments; or
  11. transfer or attempt to transfer any material of any kind to the website which contains a virus, malicious computer code or any harmful component.

Disclaimer

8. To the extent permitted by law, ACMA does not give any warranty in relation to the material contained on the website. As appropriate, users should take action to independently confirm the currency, accuracy and completeness of any website material before relying on that material in any important matter.

9. The material at the website is made available on the understanding that ACMA is not engaged in rendering professional advice. It may not be exhaustive of all the information available on a particular issue.

10. In some cases the material may incorporate or summarise views, standards or recommendations of third parties. ACMA does not in all cases independently verify the results of research.

11. In some cases the material deals with technology that is highly complex and continually developing. Caution should be applied when using the material to ensure that it is adequate and appropriate for a particular purpose. Users should check that they can access the necessary technical skills and experience to accurately interpret and correctly use the material.

12. Links to other websites are inserted for convenience and do not constitute endorsement of material at those sites or any associated organisation, product or service.

13. To the maximum extent permitted by law, ACMA does not warrant, guarantee or make any representation that:

  1. the website, or the server that makes the site available on the WWW are free of software viruses or secure;
  2. the functions contained in any software contained on the website will operate indefinitely or uninterrupted or are error-free;
  3. the website or its functions will operate on your computer in a secure manner or at all; or
  4. errors and defects in the website will be corrected.

14. To the maximum extent permitted by the law, ACMA is not liable to you for:

  1. errors or omissions in the website, or linked sites on the WWW;
  2. the unintentional transmission of viruses, malicious computer code or any harmful component from the website;
  3. delays to, interruptions of or cessation of the services provided in the website, or linked sites;
  4. unauthorised access to or alteration of any data transmitted by or to you;
  5. loss of any data transmitted by or to you;
  6. loss or non-fulfilment of transactions entered into using the website;
  7. unintentional release of information about you to third parties; or
  8. defamatory, offensive or illegal conduct of any user of the website, whether caused through negligence of ACMA, its employees, delegates, independent contractors, or through any other cause.

15. To the extent permitted by law, you agree to accept the full cost of any necessary repair, correction and maintenance of any of your computer software or hardware, which may be necessary as a consequence of you accessing or using the website.

Termination of access

16. Subject to any rights or obligations set out in the legal instruments, ACMA may terminate access to the website at any time without giving any explanation or justification for the termination of access, and ACMA has no liability for any costs, losses or damages of any kind arising as a consequence of terminating access to the website.

17. Irrespective of any rights or obligations set out in the legal instruments if, in ACMA's reasonable opinion, you have breached these Terms of Use, ACMA may immediately terminate your access to the website and take all necessary steps to prevent you from accessing the website or any future website that ACMA may use for the purpose of auctioning telephone numbers. You expressly acknowledge that such termination of access may result in your inability to participate in the auction process.

Intellectual Property Rights

18. ACMA makes no representation that any telephone number obtained by a user as the result of the use or access of the website is free of third party intellectual property rights nor that any intellectual property rights are granted to you as the result of your obtaining a number by using or accessing the website.

19. You acknowledge that numbers (or their alpha-numeric equivalent) made available for auction via the website may in fact be the intellectual property of another person or entity. You further acknowledge that your use of a number obtained via the auction process may infringe the intellectual property rights or other legal rights (whether such rights arise as the result of the Trade Practices Act 1974 (Cth), the Trade Marks Act 1995 (Cth) or any other law) of that other person.

20. To the fullest extent permitted by law, ACMA is not liable to you for any damages, costs or liabilities that may result from your obtaining or use of numbers made available for auction via the auction website.

21. You acknowledge that ACMA is not liable to refund any monies paid by you or any person or entity that you represent in the event that you cannot use a number made available for auction via the auction website or which you obtain via the auction process.

22. You agree to indemnify ACMA for any costs, damages or other sums incurred by ACMA as the result of your accessing or using the website to obtain a number or your use of that number.

23. You agree that not all telephonic keypads are the same and that a number's alpha-numeric equivalent may not be the same for all telephones. To the fullest extent permitted by law, ACMA is not liable to you for any damages, costs or liabilities that may result from an inability to use a particular alpha-numeric equivalent on a particular telephone or telephones.

24. You acknowledge that, from time to time, ACMA may release additional telephone number ranges and that this may result in other persons obtaining numbers that have similar alpha-numeric characteristics. For example, you may obtain the rights of use to the number '13CATS' and another person may obtain the rights of use in relation to the number '14CATS'. To the fullest extent permitted by law, ACMA is not liable to you for any damages, costs or liabilities that may result from ACMA releasing additional telephone number ranges or from other persons obtaining numbers that have similar alpha-numeric characteristics.

Communication

25. You agree to ACMA or its respective officers, employees, delegates, contractors or agents contacting you in writing, by email or by telephone regarding the website and the auction process.

26. You agree to ensure that your contact details are accurate at all times. You acknowledge that ACMA bears no responsibility and is not liable to you for any loss or damage which results from your failure to receive information or notification when your contact details are not accurate or up to date.

Release of personal information

27. ACMA will not knowingly release personal information about you in any manner that is inconsistent with the Privacy Act 1988 (Cth). Details of the ACMA's privacy policy can be found at http://acma.gov.au/theACMA/About/Corporate/Accountability/privacy-policy

General Indemnity

28. You acknowledge that ACMA may release information about you, your application, your participation notice or your bidding to third parties who are associated with the auction process. This includes, but is not limited to persons who ACMA engages to conduct or manage auctions and carriage service providers and their agents (including INMS). Nothing in this clause limits the operation of sections 5.6 in the Telecommunications (Freephone and Local Rate Numbers) Allocation Determination 2007 (No. 1) .

29. To the extent permitted by law, you will at all times indemnify and keep indemnified ACMA and its respective officers, employees, delegates and agents (referred to in this paragraph as 'those indemnified') from and against any loss (including legal costs and expenses) or liability incurred by any of those indemnified arising from any claim, demand, suit, action or proceeding by any person against any of those indemnified where such loss or liability arose out of, or in connection with or in respect of any breach of this Agreement by you; and publication of or distribution of the material and/or information supplied by you.

Waiver of Legal Right

30. If you breach any of these Terms of Use, and ACMA has knowledge of that breach, a failure by ACMA to pursue legal action or to enforce any remedy against you will not constitute a waiver of ACMA's legal rights.

31. Any waiver of these Terms of Use will only be effective if it is in writing and signed by ACMA.

Relevant jurisdiction

32. If any part of these Terms of Use are found to be void, unlawful or unenforceable, then that part will be deemed to be severable from the balance of these Terms of Use and the severed part will not affect the validity and enforceability of any remaining provisions.

33. These Terms of Use will be governed by and interpreted in accordance with the law of Victoria, Australia without giving effect to any principles of conflicts of laws.

34. In the event that a dispute arises from these Terms of Use, you agree to submit to the non-exclusive jurisdiction of the courts of Victoria, Australia.

Additional Terms of Use for Applications for Registration

35. To the maximum extent permitted by law, ACMA does not warrant, guarantee or make any representation that you will be able to register in time to participate in an auction. You acknowledge that you understand that registration may not be an immediate process, and may be delayed due to administrative processing and funds clearance requirements.

Additional Terms of Use relating to Allocation Applications

36. To the maximum extent permitted by law, ACMA does not warrant, guarantee or make any representation:

  1. that numbers included in an allocation application are or will be available for allocation by auction; or

  2. that you will be able to participate in an auction for a particular number if you lodge an application for that number after an auction has commenced; or

  3. that your bid will be accepted in time to participate in an auction.

37. You agree that in applying for a number, information about you or your application may be released by ACMA or INMS to the carriage service provider who lodged or on whose behalf the allocation application for that number was lodged.

38. You acknowledge that there are additional fees and charges which apply to the use of telephone numbers, including, but not limited to call charges, service charges and annual numbering charges. The winning bid amount does not include or replace any of these amounts. More details of charges can be obtained from your service provider.

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