Telstra Music Terms & Conditions (Terms)
(updated 12th December 2014)
(Read our full Terms & Conditions for more details.)
(a) What is the Telstra Music Service (Service)?
The Service is the supply by us (Telstra Corporation Limited ACN 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; 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, 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 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.
(iii) Availability of music tracks from the MOG Service may also change at any time.
(d) Where can you be when you access the MOG Service?
You are only entitled to access the MOG Service if you are present in Australia at the time of access and the time of streaming (for the MOG Service).
When you 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) 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, 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 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 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 subscription fees for the MOG Service (MOG Charges) (see paragraph 7(c) below).
(b) Payment by Credit Card
If you have chosen to pay MOG Charges by credit card, you:
(i) must ensure that you have sufficient available credit on your credit card to allow any 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 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 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 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 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 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 MOG Charges as part of the Invoice;
(iv) agree if you fail to pay the Invoice (including the 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 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 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 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) 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.
(f) 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 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 mixtapes, any content that you post or transmit on or using the Service, or in any other material you create using the Service.
6 Usage Rules
(a) You must not modify, reverse engineer, decompile, disassemble, modify, adapt or translate 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.
(b) 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).
(c) 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.
(d) 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 at https://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 7(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.
(f) 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.
(g) 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).
(h) 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.
8 Cancellation of your account
We may suspend or cancel your account related to the Service 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.
9 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.