BigPond Music Terms and Conditions & Terms of Service and Sale (Terms)

1 Service

(a) What is the BigPond 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;

(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.

(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. Also, events beyond our control might affect the Service, and you agree that we're not responsible for any effects of those events.

(c) When can we change these Terms, the price, and available tracks?

(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, and by posting a notice to users on the homepage of that website stating that a change has occurred. 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 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 may also change at any time.

(d) Where can you be when you download tracks?

You are only entitled to download Music Files if you are present in Australia at the time of purchase and at the time of download.

When you make a purchase, you're telling us that you are currently present in Australia.

2 Liability

(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 Trade Practices Act 1974 (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.

(b) As a guide, the Trade Practices Act 1974 (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 condition or warranty that is implied (and cannot be limited or excluded) by the Trade Practices Act 1974 (Cth) into an agreement for the provision of the Service to them.

3 Customer

(a) When is an agreement formed?

You agree to acquire the Service on these Terms each time you use the site and each time you stream a preview or download a Music File.

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 and each time you stream a preview or download a Music File.

(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. You must take responsibility for all use of your account and password and for all Music Files purchased using your account and password.

(iii) 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.

(iv) You must only access or use (or attempt to access or use) content on BigPond Music in accordance with these Terms.

(a) Indemnity

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 from your breach of these Terms and from your negligence including any loss arising out of claims by someone else against us.

(b) 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.

(c) 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 Download Limits, Payment and Privacy

(a) Download Limits

We have established a download limit for the Service, of 500 Music Files per account, per day.

(b) 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.

(c) Payment by Credit Card

If you have chosen to pay Music Charges by credit card, you:

(i) must ensure that you have sufficient available credit on your credit card to allow any Music 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 here; and

(iii) agree that if your payment of the Music 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 and any resulting charges or costs which we may incur.

(d) Payment via a Telstra Bill

If you are a BigPond internet customer and have chosen to add the Music Charges to invoices we send you for other BigPond internet services or for Telstra fixed line telephone services (Invoices), you:

(i) agree that the Music Charges can be added to the Invoice we send you for supplying you with BigPond internet services (if you are a BigPond Satellite, ISDN or Dial-Up customer) or for supplying you with BigPond Broadband Additional Services (if you are a BigPond Broadband ADSL or Cable customer);

(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 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 as part of the Invoice;

(iv) agree if you fail to pay the Invoice (including the Music 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 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 BigPond internet services invoiced to you on that Invoice.

(e) Security

If you are a BigPond Broadband ADSL or Cable customer and wish to purchase Music Files before your BigPond Additional Services are activated, you may do so by providing your credit card details as security. If you do so, you authorise us to debit your credit card for these Music Charges if the activation of your BigPond Additional Services is rejected for any reason.

(f) Refund Policy

Unless you are entitled to a refund because we have a liability to you arising under law (see paragraph 2 above) or we otherwise decide that you are entitled to a refund, 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: Privacy Statement

5 Gifts and Vouchers

(a)    You may purchase:

(i)    one or more Music Files as a gift (“Music Track”) for download; or
(ii)   Gift Vouchers for the purchase of Music Files.

(b)    Music Tracks and Gift Vouchers may be purchased online from your PC through www.bigpondmusic.com (“Online Purchases”), or from your compatible Telstra Next G or 3G WAP enabled mobile phone (“Mobile Purchases”).

(c)    The following terms apply to Music Tracks:

(i)    Online Purchases

(a)    To redeem an Online Purchase Music Track, the Music Track Recipient must be a  BigPond Music member. Online Music Track Recipients can register with BigPond Music after receiving an Online Purchase Music Track.

(b)    Online Purchase Music Tracks are only available for download by the Music Track Recipient onto their PC. They are not available for direct download onto mobile handsets.

(c)    The Music Track Recipient can redeem the Online Purchase Music Track by logging into their BigPond Music member account at bigpondmusic.com.

(ii)    Mobile Purchases

(a)    To redeem a Mobile Purchase Music Track, the Music Track Recipient must have a compatible Telstra Next G or 3G mobile handset.

(b)    Mobile Purchase Music Tracks are only available for download by the Music Track Recipient onto their compatible Telstra Next G or 3G WAP enabled mobile handset. They are not available for direct download onto a PC.

(c)    To download the Mobile Purchase Music Track, the Music Track Recipient must log into their BigPond Music member account on their compatible Telstra Next G or 3G  WAP enabled mobile handset.

(d)    If the Music Track Recipient does not have a compatible Telstra Next G or 3G WAP enabled mobile handset, the Music Track purchaser will be charged for the purchase of the Music Track.

(iii)    To initiate downloading of the Music File(s) comprised in a Music Track, a Music Track Recipient must provide the applicable Music Track redemption code, which may only be used once.

(iv)    Music File(s) comprised in a Music Track may only be used subject to the terms of this agreement.

(v)    A Music Track is only available for redemption by the Music Track Recipient for a period of 12 months from the date of purchase.

(d)    The following terms apply to Gift Vouchers:

(i)    The Gift Voucher Recipient may use the Gift Voucher to purchase Music Files online at www.Bigpondmusic.com, or through a compatible Telstra Next G or 3G WAP enabled mobile handset.
(ii)    In order to use the Gift Voucher to purchase Music Files, the Gift Voucher Recipient must register as a BigPond Music member, either online at bigpondmusic.com or through the Gift Voucher Recipient’s compatible Telstra Next G or 3G WAP enabled handset.
(iii)    Any unused Gift Voucher credit expires at the end of a period 12 months from the date of purchase of the Gift Voucher.

(e)    If you have a positive BigPond Music pre-paid voucher credit balance (“Voucher Credit”), you may use the Voucher Credit to purchase a Music Track to send as a gift.

6 Termination and Survival

(a) Intellectual Property

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) Notices

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.

(c) Governing law

These Terms and any agreement which they form part of, are governed by the laws of New South Wales.

7 Usage Rules
    
What are the Usage Rules?

(a) When you purchase a Music File, you become authorised to do certain things with that file so that you can enjoy it within the following rules (Usage Rules):

For Music Files with DRM-protection

(b) Your purchase of a Music File with DRM protection (DRM-protected File), authorises you, for your own personal use, to:

(i) download the DRM-protected File 3 times on up to 3 stand-alone personal computers;

(ii) copy the DRM-protected File an unlimited number of times to up to five  portable devices registered to you which operate with Microsoft Windows Media Player version 10 or above;

(iii) burn the DRM-protected File up to 5 times onto CD-R or CD-RW; and

(iv) download up to two replacement DRM-protected Files at no additional charge if you have had problems installing the licence or if the original file on your stand-alone personal computer is lost or destroyed.

For Music Files without DRM-protection

(c) Purchasing a Music File without DRM protection (DRM-free File) gives you the same basic rights outlined above in the Usage Rules for DRM-protected Files.  The purchase of DRM-free Files is also subject to the following additional restrictions:

(i) By purchasing a DRM-free File, you receive a non-transferable licence to use the DRM-free File for your personal, non-commercial entertainment use;

(ii) You must not infringe the rights of the owners of the copyright in the DRM-free Files and must comply with all applicable laws in your use of the DRM-free Files; and

(iii) You must not synchronise, publicly perform, use in any way for promotional purposes, commercially sell, resell, reproduce, communicate or distribute DRM-free Files, or use the DRM-Free files in any way other than for your personal, non-commercial entertainment use.  

General

(d) These Usage Rules are strict because of intellectual property rights in the recordings. You must not:

(i) do anything with the Music File that is not authorised in (b) and (c) above (including re-sale, rental or allowing or assisting anyone else to do the same); or

(ii) attempt to circumvent or modify any technological measure used to apply these Usage Rules to your Music File (or allow or assist anyone else to do the same).

(e) You must not use or reproduce 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.

(f) 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 (or assist anyone else to do the same).

(g) 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.


8 General

(a) Intellectual Property

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) Notices

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.

(c) Governing Law

These Terms and any agreement which they form part of, are governed by the laws of New South Wales.