BigPond Music Terms & Conditions (Terms)
(updated 12th December 2012)
BigPond Music does not generally provide refunds unless downloaded files are faulty.
(Read our full Terms & Conditions for more details.)
Please take care to correctly download audio and audio-visual files available for download from BigPond Music (Music Files) to your computer. It is advisable to make regular back-up copies of all your Music Files and other important files in case anything should happen to your computer.
(a) What is the BigPond Music Service (Service)?
The Service is the supply by us (Telstra Corporation Limited ACN 051 775 556 051 775 556) of one or more of the following:
(i) access to streamed music for previews (Streamed Music);
(ii) access to information about artists and recordings;
(iii) the sale by us to you of downloads of Music Files licensed for use in accordance with the Usage Rules and the other provisions of these Terms; and
(b) Service Limitations
We will, of course, use reasonable endeavours to supply the Service to you. However, despite our efforts, the Service may not be continuous, accessible at all times, or fault free, and we may, at any time, discontinue the Service. We may also change functions or features of the Service from time to time (either temporarily or permanently). Also, events beyond our control might affect the Service, and you agree that we're not responsible for any effects of those events. For example, some music tracks in a particular catalogue may no longer be available from the Service due to arrangements with third parties beyond our control.
(c) When can we change these Terms, the price, available Music Files and available tracks from the MOG Service?
(i) From time to time, we need to be able to change these Terms to reflect our changing business. We may change these Terms at any time by posting the changed terms on our website bigpondmusic.com. Any change in the Terms will not affect the provisions of any pre-existing agreement for the acquisition of the Service from us.
(ii) Also, prices for Music Files and access to the MOG Service may change at any time. We will charge you the price that applies and is displayed at the time you purchase the Music File.
(iii) Availability of Music Files and music tracks from the MOG Service may also change at any time.
(d) Where can you be when you download Music Files or access the MOG Service?
You are only entitled to download Music Files or access the MOG Service if you are present in Australia at the time of purchase and at the time of download (for Music Files) or at the time of access and the time of streaming (for the MOG Service).
When you make a purchase of a Music File or access the MOG Service, you're telling us that you are currently present in Australia.
(a) We endeavour to provide value for money to our customers, which means that we try to keep the cost of the Service low. However, this means that we can't accept liability for loss arising out of our supply of the Service except to the extent that we are required to by law (such as state fair trading legislation and the Competition and Consumer Act 2010 (Cth)). In particular, except to the extent required by law, we do not accept, and exclude, liability for:
(i) any business losses, or losses of data or profits; or
(ii) any other direct, indirect or consequential losses or damage, which you may suffer in connection with our supply, non-supply or defective supply of the Service, even if we have been negligent and even if we have been advised of the possibility of such damage or loss.
(b) As a guide, the Competition and Consumer Act 2010 (Cth) would require us to accept liability to consumers where:
(i) we fail to supply the Service with due care and skill;
(ii) the Music Files we supply in connection with the Service are not reasonably fit for the purpose for which they are supplied; or
(iii) we have breached a guarantee granted by the Competition and Consumer Act 2010 (Cth) in respect of consumer services, and which cannot be excluded, modified or restricted.
Sometimes, we may suffer loss or damage as a result of things that you do in relation to the Service. This means that we ask and you agree to indemnify us for any loss we suffer arising from a breach of these Terms by you or from any negligent act or omission by you, including any loss arising out of claims by someone else against us.
(a) When is an agreement formed?
You agree to acquire the Service on these Terms each time you use the site, each time you stream a preview or download a Music File, and each time you access the MOG Service. If you are a BigPond Broadband ADSL or Cable customer, the Service is also a BigPond Broadband Additional Service which is acquired on these Terms each time you use the site, each time you stream a preview or download a Music File and each time you access the MOG Service.
(b) What do we need you to do?
(i) So that we can provide you with the Service, you must set up an account, in which you provide accurate and current user details (and update them if they change). You should use your BigPond user details for the Service if you are a BigPond internet customer.
(ii) You also must provide a password for your account. Please keep your password secret.
(iii) If you subscribe to the MOG Service, your user details and password for your BigPond Music account will be the same for access to the MOG Service.
(iv) You must take responsibility for all uses of your account and password and for all Music Files and subscriptions to the MOG Service purchased using your account and password.
(v) You're also responsible for having and paying for all necessary hardware, software and internet access to use the Service. We post the minimum requirements (which we may change from time to time) for this on our website bigpondmusic.com.
(vi) You must only access or use (or attempt to access or use) content on or accessible via BigPond Music in accordance with these Terms.
If you are under 18 years old, you must not use the Service unless your parent or guardian:
(i)consents to your use of the Service (including your use of the internet service and/or mobile phone used to access the Service);
(ii)agrees to these Terms on your behalf; and
(iii)agrees to take responsibility for all charges you incur for use of the Service.
(d) Offensive content
Some content available on the Service may contain language or images that could offend you. You agree that it is your choice to use the Service and that we are not responsible for any offence caused to you by any content. You also acknowledge that we do not monitor or control the content that other users of the Service post or transmit on or using the Service, and we are not required to remove any such content unless we receive a take-down notice from a government authority. You agree that we are not responsible for any offence, damage or loss caused to you by any such content. In addition, we reserve the right (but do not have an obligation) to remove any content from the Service for any reason.
(e) Third party links and content
On the Service, there may be links to content or websites of third parties. We are not responsible for anything to do with those links or websites or that content.
4 Payment and Privacy
(a) Obligation to Pay
As with many services we provide, you must pay the charges specified for your downloads of Music Files (Music Charges) using the Service and for your subscription fees for the MOG Service (MOG Charges) (see paragraph 9(c) below).
(b) Payment by Credit Card
If you have chosen to pay Music Charges or MOG Charges by credit card, you:
(i) must ensure that you have sufficient available credit on your credit card to allow any Music Charges or MOG Charges to be processed;
(ii) must enter your credit card details directly into the linked website of our credit card payment gateway provider, BillPay. You may view BillPay's policy in relation to any information that you give to BillPay on the BillPay website. We will not give BillPay any personal information we have relating to you. However, we may obtain information from BillPay in relation to any purchases you make. We will handle any information that we do obtain from BillPay in accordance with applicable laws and our Privacy Statement, as amended from time to time, which is available at http://www.telstra.com.au/privacy/privacy-statement/?red=/privacy/privacy_statement.html; and
(iii) agree that if your payment of the Music Charges or MOG Charges by credit card is not received by BillPay or if the payment is subsequently dishonoured or charged back to us, you are personally liable to us for the amount you owe us for any Music Charges or MOG Charges and any resulting charges or costs which we may incur.
(c) Payment via a Telstra Bill
If you are a BigPond internet customer or Telstra mobile customer and have chosen to add Music Charges or MOG Charges to invoices we send you for other BigPond internet services, Telstra mobile services or for Telstra fixed line telephone services (Invoices), you:
(i) agree that the Music Charges or MOG Charges can be added to the Invoice we send you;
(ii) must pay your Invoice in full in the usual manner and by the due date. This means that you agree to pay us the Music Charges or MOG Charges in the same manner and at the same time, as you would pay the other charges specified in the Invoice;
(iii) agree that if you have authorised us to debit your credit card account for payment of the Invoice, you authorise us to also debit your credit card account for the Music Charges or MOG Charges as part of the Invoice;
(iv) agree if you fail to pay the Invoice (including the Music Charges or MOG Charges) in full when due, that in addition to any other rights we may have under these Terms or at law:
(a) we have the right to charge you interest and any other charges on the Music Charges or MOG Charges in the same way that we have the right to charge you interest or other charges for a failure to pay, when due, the other charges specified in that Invoice; and
(b) we have the right to immediately suspend or terminate the supply of the services invoiced to you on that Invoice.
(d) Payment from a Telstra Mobile Pre-Paid Account
If you have chosen to have your Music Charges or MOG Charges automatically deducted from your Telstra pre-paid service, you:
(i) must ensure you have sufficient funds in your pre-paid account to cover these charges and agree that the Music Charges or MOG Charges can be automatically deducted from this account;
(ii) agree that we have the right to immediately suspend or terminate the supply of the Service if you fail to have sufficient funds in your pre-paid account.
(e) Payment using a BigPond Music Voucher
You may pay Music Charges or MOG Charges using a BigPond Music Voucher (see paragraphs 5 and 6 below).
(f) Refund Policy
Unless you are entitled to a refund because we have a liability to you arising under law (see paragraph 2 above), our policy is that refunds are not available.
(g) Privacy Terms
We will handle any personal information that we have relating to you in accordance with any law that applies and our Privacy Statement, as amended from time to time. Our Privacy Statement is available at: http://www.telstra.com.au/privacy/privacy-statement/?red=/privacy/privacy_statement.html
5 Use of BigPond Music Vouchers
(a) BigPond Music Vouchers (Vouchers) can be purchased from a variety of Australian retailers including Telstra Shops and authorised Telstra dealers, JB Hi Fi and Coles or directly from the bigpondmusic.com website. Alternatively Vouchers may be given away by Telstra or third parties as part of promotional or advertising campaigns.
(b) Vouchers consist of unique codes that must be registered on the Service to redeem the corresponding credit value, which may be used to purchase one or more Music Files or contribute to payment of MOG Charges either online from bigpondmusic.com (“Online Voucher Purchases”) and/or by using a compatible Telstra Next G or 3G WAP enabled mobile phone (“Mobile Voucher Purchases”).
(c) Validity of Vouchers
(i) Vouchers purchased through retail outlets will have a minimum validity period of 6 months from the date of purchase. The expiry date of the Voucher will be printed on the Voucher Card or on the till receipt when the voucher is purchased. The expiry date of the Voucher will be confirmed when the Voucher is registered on the Service.
(ii) Vouchers given away as part of a promotional or advertising campaign may have a validity period shorter than 6 months. The expiry date of all such vouchers will be made clear in the Terms & Conditions of the promotion.
(iii) On the date of expiration, the expiry will take effect from midnight AEST.
(iv) Vouchers may not be refunded either in whole or in part. After expiration any unused credit may not be reclaimed.
(d) The following terms apply to the use of Vouchers:
(i) In order to make an Online Voucher Purchase you must register as a BigPond Music member.
(ii) In order to make a Mobile Voucher Purchase you must have a compatible Telstra Next G or 3G WAP enabled handset.
(iii) Voucher Credit can be redeemed across any number of separate transactions whilst the Voucher remains valid.
(iv) Credit from the same Voucher can be used to make both Online Voucher Purchases and Mobile Voucher Purchases.
(v) The remaining balance of any registered Vouchers can be checked by logging-in to your online account and clicking on the Vouchers section (http://bigpondmusic.com/vouchers).
6 BigPond Music Gifts
(a) You may purchase one or more Music Files or a Voucher as a gift (“Gift”) for download by a third party residing in Australia either online through bigpondmusic.com (“Online Gift Purchases”) and/or by using a compatible Telstra Next G or 3G WAP enabled mobile phone (“Mobile Gift Purchases”).
(b) Online Gift Purchases
(i) In order to redeem an Online Gift Purchase the Gift Recipient must register a BigPond Music account or else already have a BigPond Music account.
(ii) The Gift Recipient can redeem the Online Gift Purchase by logging into their BigPond Music account at bigpondmusic.com and going to the Awaiting Downloads section of their account.
(iii) Online Gift Purchases are only available for the Gift Recipient to download onto a computer. They are not available for direct download onto mobile handsets.
(c) Mobile Gift Purchases
(i) In order to redeem a Mobile Gift Purchase, the Gift Recipient must also have a compatible Telstra Next G or 3G WAP enabled mobile handset.
(ii) The Gift Recipient can redeem the Mobile Gift Purchase by clicking on the link contained within the SMS alerting them of their Gift or by going to the BigPond Music portal on their compatible Telstra Next G or 3G WAP enabled mobile handset and going to the Awaiting Downloads section of their account.
(iii) Mobile Gift Purchases are only available for download by the Gift Recipient onto their compatible Telstra Next G or 3G WAP enabled mobile handset. They are not available for direct download onto a computer.
(iv) If the Gift Recipient does not have a compatible Telstra Next G or 3G WAP enabled mobile handset, the Mobile Gift Purchaser will still be charged for the purchase of the Gift.
(d) To initiate downloading of Music File(s) given as a Gift, a Gift Recipient must provide the applicable redemption code, which may only be used once.
(e) All Music Files and all Vouchers given as a Gift may only be used in accordance with these Terms.
(f) A Gift is only available for redemption by the Gift Recipient for a period of 12 months from the date of purchase.
7 Intellectual Property
(a) All intellectual property related to the Service (including the content) belongs to us or our licensors. For this reason, you must not do anything with the Service or the content that is not expressly authorised by these Terms.(b) You grant us a royalty–free, worldwide, perpetual, non-exclusive, irrevocable, licence to use, reproduce, modify, adapt, add to and communicate to the public all intellectual property rights in any BPM Mixtapes, any content that you post or transmit on or using the Service, or in any other material you create using the Service.
8 Usage Rules
What are the Usage Rules?
(a) When you purchase a Music File you receive a non-transferable, non-exclusive licence to use the Music File for your personal, non-commercial entertainment use. You must not:
(i) infringe the rights of the owners of the copyright and other intellectual property rights in the Music Files and must comply with all applicable laws in your use of the Music Files; nor
(ii) synchronise, publicly perform, use in any way for promotional purposes, commercially sell, resell, reproduce, communicate or distribute Music Files, or use the Music Files in any way other than for your personal, non-commercial entertainment use.
(b) These Usage Rules are strict because of intellectual property rights in the recordings. You must not do anything with the Music File that is not authorised in (a) above (including sale, rental, transfer, distribution, broadcast or allowing or assisting anyone else to do the same).
(c) You must not modify, reverse engineer, decompile, disassemble, modify, adapt or translate the Music File or any of the software comprising the Service or accessible via the Service. Also, you must not introduce any worm, virus, lock out or self-destruct devices, or any other code that is intended to disable, limit, restrict, disrupt or provide unauthorised access into the Service.
(d) You must not use any Music Files unless you have paid us, or will pay us when due and payable, the charges for those Music Files, and the payment is not dishonoured or charged back to us.
(e) Also, you must not do anything with Streamed Music other than streaming it. Specifically, you must not attempt to circumvent or modify any technological measure used to prevent reproductions or downloading of Streamed Music, nor access or use Streamed Music with any device that would allow you to do the same (nor assist anyone else to do the same).
(f) Please do not use internet services that promote the illegal distribution of copyrighted music. Please note that the Copyright Act 1968 (Cth) provides for civil remedies against, and criminal penalties for, people who engage in the unauthorised reproduction, distribution and digital communication of copyrighted sound recordings.
(g) You must not use the Service to post or transmit any:
(i) content that is offensive, obscene, defamatory, harassing, unlawful, contains violent material or sexual material or images, or infringes the rights, including the intellectual property rights, of any person; or
(ii) unsolicited advertising or promotional materials.
(a) What is the MOG Service?
The MOG Service is an on-demand music streaming subscription service, which also gives you access to range of editorial and contextual information about the artists of the music tracks you stream and their recordings.
(c) When does the MOG EULA apply?
(i) MOG is the supplier of the MOG Service. MOG (and not Telstra) is responsible for hosting, operating, supporting and providing all content and music streaming services available on or via the MOG Service. As mentioned in paragraph 1 above, your use of the MOG Service is also governed by the MOG EULA, which is a separate agreement between you and MOG that you must agree to and comply with when you subscribe to and use the MOG Service. The MOG EULA is available athttps://mog.com/#!terms
(ii) We are not responsible for, and to the extent permitted by law, we exclude all liability in relation to, hosting, operating, supporting and providing content and music streaming services available or on via the MOG Service. We are only responsible for the subscription charges and billing arrangements regarding your MOG Service (see below).
(d) 14 day trial
(i) If you have not previously subscribed to the MOG Service in Australia, you may receive a 14 day trial of the Premium Subscription of the MOG Service without paying a subscription fee. To access a 14 day trial, you must set up a BigPond Music account (see paragraph 3(b) above), select the 14 day trial option, select a billing method and agree to these Terms.
(ii) At the end of the 14 day trial period, you will be automatically rolled over to a paid Premium Subscription (see paragraph 9(e) below) unless you tell us that you don't want your trial to roll over.
(iii) You may only receive one 14 day trial of the MOG Service.
(e) Subscription and charges
(i) To access the MOG Service on an ongoing basis, you must set up a BigPond Music account (see paragraph 3(b) above), purchase either a Basic Subscription or a Premium Subscription and agree to these Terms and the MOG EULA. Your BigPond Music account user details and password will be the same for accessing the MOG Service.
(ii) Basic Subscription: The cost of the Basic Subscription is [$6.99 per month]. It gives you access to the MOG Service via your PC or Mac, online via a web app or desktop app and Apple TV via Airplay.
(iii) Premium Subscription: The cost of the Premium Subscription is $11.99 per month . It gives you access to the MOG Service via your PC or Mac, online via a web app or desktop app, Apple TV via Airplay, your compatible home entertainment system , and your compatible mobile phone and tablet device.
(iv) You can change from a Basic Subscription to a Premium Subscription, or from a Premium Subscription to a Basic Subscription, at any time via your BigPond Music account. [The change will take effect from the beginning of your next month's subscription period.]
(v) We may change the amount of the Basic Subscription or Premium Subscription monthly fee from time to time by sending a notice to your nominated email address and placing a notice on the MOG Service, at least 30 days in advance of the new prices taking effect.
(vi) You will be billed for your monthly subscription fee according to the payment method you choose when you set up your BigPond Music account (see paragraph 4 above).
(vii) Your subscription will automatically renew each month until you cancel your subscription.
(viii) If you cancel your subscription, your access to the MOG Service will stop at the end of your current month's subscription. You will not receive a refund for any portion of your current month's subscription after you cancel.
(e) Usage charges
Use of the MOG Service is unmetered for Telstra mobile and most BigPond broadband customers. Non-Telstra mobile and BigPond broadcast customers may incur data and download charges for using the MOG Service.
(f) Marketing communications from MOG
(i) If you opt-in, MOG may send you electronic marketing communications to your nominated email address from time to time, including service information and marketing and promotional material.
(ii) We will otherwise only provide your personal information to MOG as required for the purpose of providing the MOG Service and in accordance with our Privacy Statement,as amended from time to time(see paragraph 4(f) above).
(g) Cancellation of the MOG Service
If we cancel the MOG Service for any reason, then we will notify you of the cancellation and give you the option to either:
(i) move your subscription to an equivalent replacement service (if any) that we may offer; or
(ii) if possible, move your account so you can continue to access the MOG Service directly from MOG.
10 Cancellation of your account
We may suspend or cancel your BigPond Music account immediately at any time if you breach any of these Terms and we consider that the breach is incapable of remedy. Without limiting the above, we consider infringement of another person's rights, including intellectual property rights, a breach that is incapable of remedy.
11 Notices and Governing Law
If we need to notify you of any matter relating to these Terms, we ask, and you agree, that we may use post, fax or email to the email address in your account details. If we do use email, you will be taken to have received the email if it leaves our servers, unless we receive evidence to the contrary.
(b) Governing law
These Terms and any agreement which they form part of, are governed by the laws of New South Wales.