STANDARD TERMS AND CONDITIONS
UNDERSTANDING THESE TERMS
2. THE SERVICES
3. YOUR RESPONSIBILITIES
4. CHARGES AND INVOICES
5. SERVICE DISRUPTIONS
7. PROPERTY RIGHTS
9. RESOLVING DISAGREEMENTS
10. TERM AND TERMINATION
11. NOTICES AND INVOICES
STANDARD TERMS AND CONDITIONS
This document sets out the general terms and conditions that will apply to the relationship between You and Us. This document, the Service Schedule(s) and the Service Order Form(s) will together form the Standard Service Agreement between us and You. By signing the Service Order Form You agree to be bound by our Standard Terms and Conditions. If there are any inconsistencies between the documents that form the Agreement between us, the order of precedence is these Terms and Conditions, the Service Schedule and then the Service Order Form.
1.1 Information accessibility
You can contact us to obtain further information on our Customer Support number: 02 8412 0000, otherwise You can view our website at www.greenlight-itc.com
1.2 Locating the ‘Official Copy’ of our Standard Terms and Conditions
The ‘Official Copy’ of our Standard Terms and Conditions (i.e. This Document) is the copy published online at www.greenlight-itc.com/terms-and-conditions. The Official Copy is taken to be the current and accurate version of those documents at any time.
1.3 Understanding these Terms
- “we” or “us” or “Our Group” means SPEAK EZY VOICE AND DATA PTY LIMITED (ACN 117 915 134) and/or its Related Bodies Corporate (including but not limited to Greenlight ITC), as the case may be.
- “Customer” or “You” means your business, as identified on the Service Order Form.
- “Agreement” means these Terms and Conditions, the Service Schedule and the Service Order Form.
- “AUP” our Acceptable Usage Policy, available on our website.
- “Billing Dispute” a dispute or difference between us as to whether You are liable to pay an amount that we have invoiced to You
- “Business Day” means any day excluding Saturday or Sunday or a bank or public holiday in Australia .
- “Business Hours” between 8:30am and 5pm on a business day.
- “Charge” or “Charges” means the charge or charges (exclusive of any taxes or duties) in respect of a Service as set out in the relevant Service Order Form.
- “Claim” any demand, or allegation of liability, and all related costs, claims, demands, liability, damages, losses and expenses of any nature including all legal expenses suffered or incurred.
- “Confidential Information” means any information of a party which the other party knows or should know is confidential to the other party, or would have remained confidential except for a wrongful disclosure by the first party whether oral, written or in electronic form, including but not limited to Your or our intellectual property, operational information, know-how and trade secrets, financial and commercial affairs, contracts, client information and pricing details.
- “Credit Card Authority” a written authority to debit Your credit card (or a verbal authority to do so)
- “Direct Debit Authority” a written authority to debit Your bank account, in the form available on request. “Disputed amount” in relation to a billing dispute means the amount within the relevant invoice that You dispute liability to pay.
- “Equipment” means either Our Equipment or the Purchased Equipment or both, as the context requires.
- “Excess use charge” a charge for use of any service in excess of any base allowance.
- “Fixed service fees” fees for any service that apply on a once only basis, or on a periodic basis and are not variable based on data volumes as between periods.
- “Force majeure” an event or circumstance beyond our reasonable control.
- “General dispute” any dispute or difference between us other than (a) a billing dispute or (b) a claim by us solely for the payment of money.
- “GST” means GST within the meaning of A New Tax System (Goods and Services Tax) Act 1999 as amended.
- “Individual Service(s)” means a particular service(s) as described in the relevant Service Order Form and/or Service Schedule.
- “Intellectual Property” means any intellectual or industrial property anywhere in the world including, but not limited to, any copyright, patent, trademark, design rights, trade secret or Confidential Information relating to the Service or any license or other right to use, or to be the registered proprietor of, any of the above.
- “Manufacturer’s Warranty” means warranty given by the manufacturer or distributor of a thing, or a person from whom we obtain a thing for resupply.
- “Minimum Period” in respect of an Individual Service, the minimum period for provision of an Individual Service as set out in the Service Order Form.
- “Our Equipment” means any equipment that we or our suppliers provide to You as part of a Service under this Agreement but excluding the Purchased Equipment.
- “Our Network” means the telecommunications network operated or controlled by us and/or our Carrier Partners.
- “Periodic fee” means a fee payable at regular intervals e.g. an amount per month.
- “Personal information” means the same thing as in the Privacy Act 1988.
- “Price list” means our published list of fees and charges from time to time.
- “Purchased Equipment” means any equipment which You purchase from us under this Agreement.
- “Related Body Corporate” has the meaning given in the Corporations Act (Cth) 2001.
- “Representative” a delegate, authorised representative, employee or agent.
- “Service” and “Services” means the services and products set out in the relevant Service Order Form and/or Service Schedule.
- “Service description” a guide or description we publish, describing a service we offer, as amended from time to time.
- “Service Levels” means the levels of service (if any) in respect of a Service.
- “Service Order Form” means our standard order for service or application form, completed by us and You.
- “Service Schedule” means a schedule to these Terms and Conditions which sets out, amongst other things, a description of the Service(s), any Services Levels and any other relevant information.
- “Set up Charge” is a charge that we describe as such, or any charge that we require to be paid in respect of the set up or establishment of a service.
- “Spam” includes one or more unsolicited commercial electronic messages with an Australian link for purposes of the Spam Act 2003, and derivations of the word “Spam” have corresponding meanings.
- “Undisputed Amount” in relation to a billing dispute means the amount within the relevant invoice that You do not dispute liability to pay.
- “Wholesaler” means a third party whose services we utilise in providing a service to You.
- “Terms and Conditions” means the general terms and conditions set out in this document.
- “Works” means any design, installation or commissioning works required to enable provision of the Service.
2. The Services
a) When we supply a service to You, the terms and conditions of supply consists of:
(i) these Standard Terms and Conditions; and
(ii) any applicable service terms; and
(iii) the applicable items in the price list; and
(iv) the applicable terms on the Service Order Form
(v) any applicable special terms.
Together, those terms and conditions and items are called the ‘customer contract’
b) Except for things set out in express terms in a customer contract, and things that are implied by law and cannot be excluded, there are no other representations, promises, warranties, covenants or undertakings between the parties and customer contracts contain the entire understanding between us.
2.2 Services Terms
a) We may also publish extra terms that apply to a particular service (‘service terms’). Service terms may be set out in service information, or on an application form, or otherwise notified to You.
b) Service terms only apply to the service they relate to.
c) Service terms may include, or incorporate by reference, a Service Level Guarantee.
d) Service terms are not part of our standard form of agreement, but they are part of our customer contract with You.
2.3 Special terms
a) We may also agree with You that special terms will apply to our customer agreement with You.
b) Special terms only apply if they are in writing and we agree to them. For instance, they may be set out on an order form.
c) If we agree in writing to charge You on some basis other than the price list, that agreement is taken to be a special term.
d) Special terms are not part of our standard form of agreement, but they are part of our customer contract with You.
2.4 Service Levels
a) For specified Services, we will provide You with Service Levels. If applicable, these Service Levels will be set out in the separate Service Schedule provided to You with these Terms and Conditions. We may include in the Service Schedule the consequences of us failing to achieve the service levels. We advise You to read any consequences carefully, as they set out our only liability to You for failure to reach the Service Levels.
b) We are not obliged to support a service in any way that is not specified. For instance, unless a customer contract states otherwise, we are not obliged to provide:
(i) on-site support;
(ii) software or hardware support; or(iii) support outside business hours.
c) If a customer contract includes a Service Level Guarantee, we will provide support in accordance with it.
d) Subject to any provision to the contrary, we will endeavour to meet any period or date for delivery of Goods or provision of Services stated by us but You acknowledge such period or dates are an estimate only and is not binding on us.
2.5 Installation and Commissioning
a) We will use our best endeavours to carry out any Works within the timeframe that we agree with You. This timeframe may be set out in the Service Order Form.
b) The Charges for any Works are based on the information You have provided us. If that information is inaccurate or an unforeseen event occurs, we may charge You for any additional cost incurred by us in completing the Works. Such additional cost will be agreed with You before being incurred unless otherwise specified.
c) You will provide us with reasonable access to Your premises and assistance from Your employees to allow us to carry out the Works.
d) You will provide us with information that we reasonably require to provision and supply the Services to You.
e) We may not be able to deliver services to some locations due to factors such as exchange capacity, or distance of Your site from the telephone exchange. We will offer alternatives wherever possible.
f) We may provide You with temporary or indicative telephone numbers for some services. These numbers should not be used for advertising until we advise You in writing as they may change.
g) We will ensure that the Service substantially conforms to any specifications that we provide.
a) If required for a Service, we may supply Equipment to You. This Equipment may be Purchased Equipment which You buy from us) or Our Equipment (which we provide to You for use during the duration of the Service).
b) You may request upgrades or new versions of equipment and we will advise You of the availability and any additional costs associated with the upgrade or new version.
c) If required for the provision of the Service, we will sell to You the Purchased Equipment and in return, You will pay to us the Charges set out in the applicable Service Order Form.
d) We will supply any Purchased Equipment to the location set out in the applicable Service Order Form or as we otherwise agree in writing.
e) We will make reasonable efforts to assign to You supplier warranties provided in respect of the Purchased Equipment but otherwise give no warranties regarding the Purchased Equipment.
f) If we sell, provide or loan any equipment to You:
(i) we retain title to and ownership of that equipment until it is paid for in full;
(ii) risk of loss or damage passes to You when it is delivered to Your premises;
(iii) You must fully insure it from the time of delivery and maintain the insurance. until You obtain title, and failing that until the equipment is delivered up to us.
g) You must not:
(i) mortgage, charge or encumber the equipment without our written consent; and
(ii) loan, rent, licence, transfer or assign or part with possession of the equipment without our written consent.
2.7 How You order services
a) We may receive an order in any form we choose e.g. by written application, electronically or over the telephone.
b)You must comply with any ordering procedures that we specify e.g. if we ask You to use a particular order form, You must do so.
c) We are not obliged to accept any order.
d) You must ensure that You provide us with all the information we request in relation to Your order and that the information You provide is correct.
e) You authorize us to fill in any blanks on the application form.
2.8 Multiple services
a) If we supply multiple services, the special terms, prices and service terms that would apply to the different services if ordered separately apply to each of them individually within the mixture.
a) Domain names and SSL certificates will be automatically renewed for you unless there is explicit prior instruction in writing from You for us to not to do so, charges will be added to your next monthly bill.
2.10 Changes to customer contracts
a) We may change any part of our Standard Terms and Conditions by amending the Official Copy of this document.
b) We may change our price list – where we do, You can obtain new pricing by contacting us (unless we have already informed You).
c) We may change any other part of Your customer contract, including our price list, by informing You of the change, but in the case of fixed term contracts we cannot change the price You pay until after the fixed term has expired.
d) If the Telecommunications Act 1997 or any other law requires us to comply with any steps or requirements before we change our standard form of agreement in a particular way, such changes do not take effect until we have complied with those steps or requirements.
e) You can change Your customer contract at the expiration of the minimum term:
(i) if we agree; and
(ii) if You give us 30 days notice prior to the commencement of the next billing month; but we are not obliged to effect any change until after the expiry of Your 30 day notice. Otherwise:
(iii) Changes to any other part of a customer contract take effect 30 days after we inform You of the change; and despite anything to the contrary, all changes whether to these Standard Terms and Conditions or any additional terms, apply immediately to all new customer contracts entered into after the changes.
2.11 Repairing Faults for Telecommunications Services
a) We will arrange for the repair of any fault in Our Network or Our Equipment which adversely affects the Service.
b) The Charges cover the cost of us repairing faults in the Service during our normal service hours of 09.00am to 5.00pm (in the State from which the Service is provided) unless such faults are caused, or contributed to, by You or Your employees or contractors.
c) If You want us to investigate or repair any faults or defects not covered by the Charges then we may charge You additional charges for the work carried out. An Estimate of such additional charges will be agreed with You before being incurred.
a) To the extent permitted by law we:
(i) will provide services with reasonable care and skill but do not warrant that they will be provided without fault or disruption;
(ii) do not provide a service level guarantee or any guaranteed service level unless the customer contract states otherwise;(iii) do not provide a warranty for hardware provided under a customer contract, but we will (where capable of assignment) assign the benefit of any manufacturer’s warranty to You.
(iv) except for any express warranties in a customer contract, to the extent permitted by law we disclaim all express and implied warranties in relation to a service or a customer contract.
b) The warranty in clause 2.12(a) does not apply in circumstances where:
(i) the Goods were used or Services required for a purpose other than for which they were intended;
(ii) the Goods were repaired, modified or altered by any person other than us;(iii) the defect has arisen due to misuse, neglect or accident;
(iv) the defect has arisen due to normal wear and tear on the Goods;
(v) the Goods have not been stored or maintained as recommended by us or the manufacturer;
(vi) You are in breach of the Agreement, or;
(vii) You have altered the hardware or software configuration of your computer or server after completion of the Services or installation of the Goods.
3. Your Responsibilities
3.1 General Responsibilities
Whenever we provide a Service to you, you will:
a. comply with this Agreement;
b. not resupply the Service to anyone else without our prior written consent;
c. follow our directions about the use of the Service;
d. ensure that all information and data You give us is correct, current and complete;
e. be solely liable for all information and data carried over Our Network or a third party network;
f. not do anything which will damage or interfere with our network or facilities;
g. use the Service for lawful purposes and without being a nuisance to anyone;
h. never interfere with the reasonable use of the Service by our other customers;
i. be responsible for any of Your employees or other service providers who have access to the Service;
j. comply with Our Acceptable Use Policy (as amended from time to time) which can be viewed at http://www.greenlight-itc.com/aup;
k. comply with all applicable laws, regulations, standards and codes;
l. obtain any permit, licence or consent which You are required to have for the service to be provided;
m. be responsible for all data that You retrieve, store, transmit, or use in any other way;
n. back up all Your data;
o. maintain the security of Your password and user identification;
p. do anything with a service which may subject either You or us to a claim;
q. pay for all use of that service, by You or anyone else; and
r. pay, for use by anyone else even if they used the service without Your knowledge or authority.
3.2 Your Indemnities
a. Ownership of Our Equipment remains with us or our suppliers (as the case may be). However, you assume all risks associated with Our Equipment from the date of delivery of Our Equipment to your premises.
b. You will indemnify us (on a full indemnity basis including all legal costs and expenses) against all actions, claims, demands, liabilities, losses, damages, or expenses arising out of Your use of the Service(s). This indemnity is not limited by Your liability cap in clause 6.1(b).
c. You indemnify us against any claim, loss or damage we suffer to the extent that it arises from:
(i) any act or omission;
(ii) any breach of any law;
(iii) any breach of a customer contract or an AUP;
(iv) any unauthorised use of a service – by You or anyone using a service we provide to You.
3.3 Customer Service Guarantee (CSG)
a. VoIP (including SIP) services are supplied on the basis that you waive the CSG. The charges for VoIP/SIP plans are typically cheaper than the charges for other plans in the market which may include the CSG but you should make your own assessment as to whether these plans represent sufficient value for you to waive the rights given to you under the CSG.
b. By signing any quote or Service Schedule for VoIP or SIP services, You confirm that You agree to waive all rights and protections under the CSG and that You may not make a claim against Greenlight for compensation under the CSG in connection with the VoIP Services, whenever ordered and including under section 118A of the Telecommunications (Consumer Protection and Service Standards) Act, 1999. By signing this Service Schedule, You acknowledge that:
(i) You are not obliged to take the VoIP Service and, on that basis, You are not obliged to give this waiver; and
(ii) You understand the consequences of the waiver.
c. You indemnify Greenlight in respect of any claim for compensation under the CSG Standard or under section 118A of the Telecommunications (Consumer Protection and Service Standards) Act, 1999 made by You.
4. Charges and Invoices
4.1 Our Fees and Pricing
a. You agree to pay the Charges for all Services we provide to You in accordance with:
(i) Standard Terms and Conditions i.e. This Document;
(ii) special terms;(iii) price list;
(iv) service terms;
(v) order form.
b. We may charge You for our services in accordance with our price list. A reference to ‘price list’ means the current price list at any particular time
c. If the service is not under contract we may change the price list by:
(i) notifying You; Or
(ii) publishing a new price list.
d. Changes take effect immediately. They have no effect on charges for services that have already been supplied under contract.
e. The price list is not part of our standard form of agreement, but it is part of our customer contract with You.
f. If a customer contract states that charges for the contract will be fixed for a certain period, or until a certain date, changes made during that period, or before that date, do not take effect until the end of that period, or until that date.
g. If a customer contract states that charges will be reviewed at certain intervals, we will not change or restructure charges for that customer contract more frequently than once per that interval.
h. Despite clause 4.1(d). 4.1(f) and 4.1(g), we may pass on price increases:
(i) which our third party suppliers may impose on us;
(ii) which are imposed on us by law such as an increase in GST;
(iii) during a fixed term or recurring term customer contract, but where we do, we
(iv) will provide You with notice at least 21 days prior to the date on which the variation is intended to take effect.
i. We may vary the Charges, if:
(i) we continue to provide the Service after the end of any Minimum Period; or
(ii) You have requested a change to the Service to be provided and we have agreed to that change.
j. For Voice Services, Unless stated otherwise on the applicable rate card or application form, all timed calls will be measured in 6 second increments and rounded up to the nearest cent with a one minute minimum.
k. Unless otherwise stated, all DSL and internet access services incur excess usage charges at the rate of $0.10 per megabyte once the included usage allowance is exceeded. These charges are billed in arrears and it is Your responsibility to manage the security and internet usage policy on Your network. We will not notify You of excess usage until the end of the billing cycle, however we can provide You with a login to manage the usage Yourself upon request.
a. We will invoice You for all Charges. You must pay each invoice by the due date set out on the invoice, or if no due date is specified, within 14 days of the date of invoice. Recurring charges are normally invoiced in advance, and usage charges monthly in arrears.
b. Set up charges are payable as soon as we agree to provide a service, or at any later date we agree to in writing.
c. Periodic or repeating charges are payable from the date when we inform You that we are ready to supply the service, whether or not You actually make use of the service.
d. All other charges, including excess use charges, are payable on invoice.
e. When a customer contract is terminated or otherwise ends:(i) we may immediately invoice any accrued charges (but later invoicing remains effective);(ii) our invoices must be paid immediately; and(iii) we have a lien over any customer equipment for unpaid charges.
f. At our discretion, we may require payment of an advance deposit (or a Direct Debit Authority, or a Credit Card Authority) against future charges or out-of pocket expenses. If we do, it becomes a condition of Your customer contract.
e. We may invoice You whenever charges have accrued, but we normally invoice by ‘billing months’. A ‘billing month’ is a month, starting on a day of the month that we nominate, which is currently the 1st day of every calendar month.
f. If we hold Your advance deposit, Direct Debit Authority, or Credit Card Authority, we may draw payment as soon as a charge has accrued or on the day the invoice becomes due.
g. Upon termination of a customer contract You must pay all fees and charges that are invoiced, within 7 days of the invoice unless we agree to a longer time.
h. If You do not pay an invoice by the due date for payment, You will be in default and Apart from our other rights we may:
(i) charge You a default charge on the unpaid amount on a daily basis from the due date until payment is made at the rate of 2% per month, compounded daily, or $15, whichever is the greater.
(ii) without prejudice to any other rights we have, if Your payment is dishonoured then we may pass on our bank’s dishonour fees and a one off administrative fee to You.
(iii) restrict, temporarily suspend, or cancel any Services provided to You until payment is made to us in full. Disconnection and Reconnection charges will apply and we cannot guarantee the services and be reconnected in a timely manner, if at all.
i. If You consider there is a mistake in any invoice, You must notify us within 7 days of receipt of the invoice with full details. We will investigate the matter and report back to You as soon as practicable. If the matter cannot be resolved, the procedure under Clause 9 must be followed. If we have made a mistake, we will adjust a later invoice or issue a credit note.
j. Where You receive the Service from more than one member of Our Group, then in some cases, each member may bill You individually for the Service provided and You must make payment to the bill issuer.
k. A member of Our Group which has agreed to provide You with a Service may delegate the invoicing for that Service to another member of Our Group. If this happens You agree that You will pay the invoices in accordance with the terms of this Agreement as if they had been received from the member of Our Group which is providing You with the Service.
l. We may require You to lodge some form of security as a condition of us providing the Service to You. We may also set a spend limit for the provision of Service to You from time to time, as notified to You.
m. You must pay our Charges by cheque, electronic funds transfer, or other means specified on the invoice. If You do pay us by credit card and we accept the payment then we may charge an additional fee to You that will not exceed 3% of the credit card payment that You made to us.
n. In the event You are in default of Your obligation to pay, and the overdue account is then referred to a debt collection agency, and/or law firm for collection, You shall be liable for the recovery costs incurred. If the agency charges commission on a contingency basis, You shall be liable to pay as a liquidated debt, the commission payable by Us to the agency, fixed at the rate charged by the agency from time to time as if the agency has achieved one hundred per cent recovery of Your debt to Us. In the event where We or Our debt collection agency refers the overdue account to a lawyer You shall also pay as a liquidated debt the charges reasonably made or claimed by Our lawyer on an indemnity basis.
4.3 Supply of Credit
a. We may supply Credit to customers at our sole discretion. You authorise us to do the things set out in this clause and acknowledge that we may do so, whenever we see fit for as long as a customer contract continues or You owe us any money.
b. We may use a credit report (within the meaning of the Privacy Act 1988 (Commonwealth)) on You to assess Your creditworthiness or for debt recovery purposes.
c. We may give to a credit reporting agency any information we have about You to enable us to obtain a credit report.
d. We may exchange information about You with other credit providers or a credit reporting agency.
e. You acknowledge that we are authorised to do the things set out in this clause under the Privacy Act 1988 (Commonwealth) and that to assess or review Your creditworthiness, we may:
(i) request a third party to report about Your creditworthiness; and
(ii) disclose financial, credit and other information about You to any person.
f. You must cooperate with any enquiries that we make about Your creditworthiness and provide any further information, consent or authority we reasonably require.
4.4 Cancellation Charges
a) You will be liable to pay cancellation charges if:
(i) You terminate a Individual Service before the end of the Minimum Period other than in accordance with 10.2(a)(i) or 10.2(a)(ii); or
(ii) we terminate an Individual Service prior to the end of the Minimum Period in accordance with 10.2(a) or 10.2(b).
b. Except as expressly set out in a Service Schedule the cancellation charges are the sum of:
(i) the unrecovered proportion of the costs we have incurred in provisioning the Individual Service (where those costs have been amortized on a straight line basis over the Minimum Period;
(ii) any further costs that we will incur in connection with the Individual Service to the extent that we are unable to avoid such costs; and
(iii) an amount equal to 25% of Your average actual monthly spend/ Minimum Monthly Spend (whichever is the greater) on the cancelled Individual Service as billed by us in the 3 months (or part thereof) immediately preceding the month in which termination occurred, multiplied by the number of months, or part thereof, between the date of termination and the end of the Minimum Period; and
(iv) reimbursement to us of any rebates, credits, technology funds, refunds or discounts, including but not limited to volume rebates, loyalty discounts and service credits (“Credits”) on the full amount of our standard charges, provided to You during the Agreement.
c. If You cancel the entire VoIP or DSL service within the contact period, You will be charged for the sum of ALL the monthly recurring charges applicable for the remainder of the contract term. Cancellation charges are also applicable when the following portions of are cancelled: Voice lines, extensions, Internet, BYO, and VPN charges.
d. You agree that the cancellation charges are a reasonable estimate of our likely financial loss if the Individual Service is terminated early.
e. We may invoice You for all or part of any cancellation charge payable under this clause 4.4. You will pay the invoice specifying the cancellation charges, by the date on the invoice and if no date is specified, then 15 days after the date of the invoice.
a. Unless otherwise expressly stated, the Charges are exclusive of GST. You must pay to us, in addition to the Charges, an amount equal to any GST payable on the supply of the Service. That additional amount is payable at the same time as any part of the Charges is payable. We will issue a tax invoice to You for the supply of the Service at or before that time.
5. Service Disruptions
a. Some Services may be affected by Your levels of use, the levels of use of other users and of facilities used to provide the Service. For this reason, we do not warrant that Services will be free of blockages, delays or faults of any kind.
b. We may temporarily suspend or restrict any Service:
(i) during any scheduled or agreed maintenance period;
(ii) if we think it is reasonable or necessary to carry out urgent repairs to Our Network or Our Equipment;
(iii) in order to comply with any applicable law or an order or request of any government or regulatory body; or
(iv) where the Service is affected by events beyond our reasonable control.
c. Unless otherwise stated in a Service Schedule, we will:
(i) give You at least one days notice of scheduled maintenance that is likely to affect Your Service; and
(ii) not carry out any scheduled maintenance between 08.00 – 18.00 unless we agree this with You first.
6.1 Limitation of Liability
a. We (including our Related Bodies Corporate):(i) except as expressly set out in this Agreement, exclude all conditions, warranties and representations, whether express or implied, to the extent permitted by law; and(ii) limit our (including our Related Bodies Corporate) liability for any breach of any conditions, warranties and representations (that cannot be excluded or restricted by law), at our option, to the repair or re-supply of Our Equipment, Service or software or the payment of the cost of having Our Equipment, Service or software repaired or re-supplied.
b. Where either you or us (including our Related Bodies Corporate) is liable to pay the other any damages, refunds, rebates or other compensation under this Agreement. (“ Compensation ”) the following applies, to the extent permitted by law:
(i) the maximum combined amount of Compensation Our Group will have to pay You, and anyone else who uses any Services provided to You, is the sum of the Recurring Charges paid or payable by You in the 12 month period preceding the date of the event that gave rise to the claim;
(ii) the maximum amount of Compensation You will have to pay us is the sum of the Charges paid or payable by You in the 12 month period preceding the date of the event that gave rise to the claim, save in respect of outstanding Charges (including any cancellation charges), where Your maximum liability will be the sum of all Charges payable by You under this Agreement or Service Schedule.
(iii) both You and we will not be liable in any way for 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 Services) as a probable result of any act or omission, arising out of or in connection with the supply of any Services or any equipment under this Agreement or otherwise in connection with the relationship established by this Agreement, including any loss or damage caused by our negligence or any fundamental breach of this Agreement;
(iv) the amount of Compensation that either of us has to pay the other will be reduced to the extent that the event giving rise to the obligation to pay Compensation has been caused or contributed to by the other.
c. Neither of us will be liable for failing to meet our responsibilities under this Agreement (except Your obligation to pay the Charges for Services You have received) because of events beyond our reasonable control, including but not limited to acts or omissions of third party network operators or suppliers, acts of war or terrorism, natural disasters, strikes and lockouts.
7. Property Rights
7.1 Our Network and Our Equipment
a. Acquiring Services from us does not give You any ownership or other property rights in Our Network or Our Equipment.
7.2 Intellectual Property
a. Any Intellectual Property owned by either of us prior to entry into the Agreement, or developed independently of this Agreement by either of us, will continue to be owned by You or us, as the case may be.
b. We either own the Intellectual Property in the Service provided to You, or where we use any Intellectual Property belonging to anyone else, we have a license to do so.
c. You acknowledge that none of our Intellectual Property is transferred to You. You further acknowledge that unless specifically authorized by this Agreement, You cannot, and will not, use or reproduce such Intellectual Property for any purpose outside this Agreement.
d. All Intellectual Property in any improvements or changes to any Service devised or made by anyone during the time we are providing the Service to You, belongs to us.
8.1 Confidential Information
a. You and we must always keep each others Confidential Information confidential.
b. We both agree:
(i) to use the Confidential Information of the other only to the extent required for the purpose it was provided;
(ii) not to copy or reproduce any of the Confidential Information of the other in any way; and
(iii) to disclose the other’s Confidential Information only to employees and contractors who need access to the information and who have agreed to keep it confidential.
(iv) You or we must promptly return all Confidential Information of the other (including any copies of it) in our possession or control, at the other’s request.
c. You and we agree that Confidential Information excludes information generally available in the public domain (without unauthorized disclosure under this Agreement) and excludes information received from a third party entitled to disclose it.
8.2 Personal Information
a. During Your relationship with us, we may collect information from You or from a credit provider or credit reporting agency ( “Personal Information” ).
b. We may make and keep any record that we reasonably require for the purpose of operating our business. All such records are our sole property
c. You agree that we may:
(i) hold the Personal Information and share it with our employees, contractors and other agents or where relevant other credit providers but only where this is necessary to enable us to provide You with the Services, send You bills, check Your creditworthiness, check that Your responsibilities are being met, or otherwise to administer and enforce this Agreement. If this Personal Information is not provided to us, we may be unable to provide the Service to You;
(ii) share with other network operators any information needed to provide certain services to You, or to enable You to send or receive messages of any kind through those networks;
(iii) use any information about You for statistical purposes, so long as You are not identified; and
d. You consent to us accessing Your information and data for legitimate purposes to provide the service, improve the service or respond to complaints.
e. We, like other suppliers, are required by law to provide Your name, address, service numbers and other public number customer details to a database known as the IPND. This applies to all customers, including unlisted customers. However, unlisted service information is marked and controlled in the IPND so that it is only used for an approved purpose to those approved data users such as directory information organizations or for the assistance of emergency service organizations or law enforcement agencies. You must contact us if You wish to have Your IPND data altered in any way.
8.3 Electronic Addresses, Numbers and Other Codes
a. We will arrange for appropriate electronic addresses, numbers and other codes to be allocated for You to use depending on the kinds of services You require.
b. Subject to any third party agreements to which we are a party (eg portability agreements), all addresses, numbers and other codes allocated to You remains the property of us or other members of Our Group. For that reason, You may not sell or give them to anyone else.
c. If it is necessary to do so, we may, by giving You one months notice, change or replace any electronic address, number or other code allocated to You.
d. You do not have any rights to any particular user identification, password, customer number, IP address, or any other thing which we may provide as part of a service. We can direct You to change these at anytime.
e. Due to restrictions to number portability, we cannot guarantee that all numbers provided to You, by Us can be ported away to another carrier. If You require numbers that are portable then it is Your responsibility to inform us of this when You request new numbers. There may be additional charges for such numbers. Typically only numbers ported in (to Us) can be ported out (away from Us) the ability to port numbers depends on many factors including but not limited to:
(i) Inability to port numbers that are part of a larger number range;
(ii) Geographical limitations;
(iii) Inter carrier porting agreements or lack thereof;
f. Porting fees will be charged by both the winning and losing carrier. These charges are often not advised until after the port has been completed, and You agree to pay all such charges should they arise.
9. Resolving Disagreements
9.1 Disputes – general
a. We divide disputes into two categories – billing disputes and general disputes. When a formal dispute resolution process is required, we have a procedure for each of them.
b. Although You must follow our dispute resolution procedures, where You have a statutory right to refer a dispute to the Telecommunications Industry Ombudsman, You may still do so – but we recommend that we try to resolve the issue with us first.
c. You may make a complaint or claim to any competent body authorised to hear the complaint or claim, and any remedy that is available to You by operation of law is not excluded.
d. Where a dispute arises between us, it will be referred to our account manager and Your contract representative for resolution.
e. If they cannot resolve the dispute within 10 Business Days, either of us may escalate the dispute to our respective group managers.
f. If the dispute is not resolved within 10 Business Days of escalation to our respective group managers, then either of us may take such action or proceedings as we see fit.
9.2 Billing disputes
a. You may dispute charges in an invoice by written notice that:
(i) You give to us within 7 days of the date of the invoice;
(ii) clearly identifies You and the invoice You dispute;
(iii) detail the grounds of Your dispute.
b. If a bona fide billing dispute is lodged in accordance with clause 9.2(a), You may withhold payment of the disputed amount only until we have conducted reasonable and appropriate investigations. At the end of our investigations we will notify You of the outcome.
c. Where we require payment after our investigations:
(i) we will notify You of the outcome; and
(ii) you must pay us all outstanding amounts without deduction or set-off within 7 business days of our notice.
d. If we do not uphold Your billing dispute and You are required to pay us, we may charge interest on any withheld money from the time it was due until the time we actually receive payment at a rate of 2% per month.
9.3 General disputes
a. If a customer contract includes a service level guarantee that deals with a dispute between us, the dispute must be dealt with according to that service level guarantee.
b. If You dispute an invoice, the dispute must be dealt with under clause 9.2.
c. Otherwise, if You have a dispute with us then You must notify us by notice in writing which must:
(i) be given to us within 14 days of the date of the invoice;
(ii) clearly identifies You and the invoice You dispute;
(iii) detail the grounds of Your dispute;
(iv) we will acknowledge Your notice within 14 days; and
(v) you must still pay all invoices by their due date.
10. Term and Termination
10.1 Minimum terms
If a customer contract has a minimum term:
a. You cannot cancel it during the minimum term (except in specific cases where these terms say otherwise);
b. after that, either of us may cancel it by giving the other at least 30 days’ written notice, ending at the end of a billing month; and otherwise
c. it continues until one of us cancels it.
a. Either of us may terminate:
(i) an Individual Service on written notice where the other has materially breached this Agreement as it relates to that Individual Service and has failed to remedy the breach within 20 Business Days of receipt of written notice from You or us, as the case may be; or
(ii) this Agreement where a liquidator, receiver, manager and receiver or any other administrator is appointed over the assets of the business of the other, or if the other enters into any composition with its creditors.
b. We may terminate this Agreement immediately if You:
(i) fail to pay us money within 14 days of it being due;
(ii) breach a customer contract and fail to remedy the breach within seven days after receiving a notice requiring that it be remedied;
(iii) die (in the case where You are a sole trader or partner in a partnership);
(iv) have provided false or misleading information to us – and in any other circumstances where the customer contract allows us to.
c. If we terminate a customer contract because You have breached it, You must pay us, on invoice, the charges that would have been payable under that customer contract if it had not been terminated until after any minimum term. This is our genuine estimate of the loss we will suffer or are likely to suffer.
d. If You have more than one customer contract, and You breach one of them, You are in breach of all of them. We can terminate any or all of Your customer contracts, or exercise any other rights we have under a customer contract.
10.3 Suspension Rights
a. We have the right to suspend performance of any or all of our obligations under the Agreement.
b. We may suspend service under a customer contract without notice and without any liability for loss and without prejudice to our rights under the customer contract or at law if:
(i) we suspect that Your service has been accessed without authority, or the integrity of the Your service has been compromised;
(ii) we suspect that Your service has been used for unlawful purposes;
(iii) You have not paid money You owe us;
(iv) we consider it is necessary to protect our network;
(v) You or a guarantor has an adverse credit report;
(vi) If You are in material breach of this Agreement (including by non-payment of our Charges when due);
(vii) a governmental or law enforcement agency asks us to do so;
(viii) a wholesaler requires us to do so;
(ix) we consider that unless we do so, there is an unacceptable risk that there will be a breach of a law or of an agreement between us and a wholesaler; or
(x) You have changed Your contact details without informing us.
c. Suspension does not affect Your liability for charges under Your customer contract, where that suspension is caused by a breach of Your customer contract with us.
d. Unless the reason or circumstance that caused the suspension is resolved to our satisfaction within seven days, we may terminate Your customer contract.
e. We will only suspend services under Your customer contract for a maximum period of 60 days before we terminate.
10.4 Recovery of Our Equipment
a. On termination of an Individual Service under this Agreement, we may reclaim Our Equipment after giving You written notice.
b. If, following 30 days from the date of termination of the Individual Service, You fail to return Our Equipment, or refuse to allow us to recover Our Equipment, You agree that, as Your agent only in relation to this clause, we may enter any premises where we believe Our Equipment may be located during normal business hours to recover Our Equipment.
c. Provided we act with reasonable care, You must pay us for any costs incurred (including but not limited to legal costs on a solicitor/client basis) in us exercising our rights under clause 10.4 (b).
10.5 Rights and obligations that survive termination
When a customer contract or this agreement ends:
a. A right of action that arises from a breach that occurred before it ended survives;
b. Charges for services delivered before it ended can be invoiced and recovered survive;
c. We are not obliged to provide You or any third party with historical data (e.g. material that used to be stored on our server).
d. We are not required to store any email or data in accounts that are not active (such as a suspended or terminated account), and we are not responsible for any loss or damage because of this.
e. Clauses 3,4,6,7,8 and 10 continue to operate; and
f. Any other clause in the customer contract that indicates that the clause survives termination also continues to operate.
11. Notices and Invoices
a. All notices and invoices must be in writing and may be sent by letter, hand delivered, fax or e-mail (or a hyperlink to a web page that contains the notice) to the address and contact person on the front of Service Order Form, as updated to each other from time to time.
b. Any notice that we send You is deemed to have been received by You as follows:
(i) by post to that contact address 2 Business Days after it is posted;
(ii) by fax to that contact number once a correct transmission confirmation slip is received;
(iii) by email if it (or a hyperlink to it) is emailed one hour after it leaves our mail server;
(iv) if it is hand delivered to You or Your postal address or (if You are a company) Your registered office – at the time of delivery;
c. A notice from us need not be signed.
a. You cannot assign Your rights and responsibilities under this Agreement without our prior written consent.
b. On our request, You must nominate at least one customer contact.
(i) You must keep us informed of current and accurate contact details of Your customer contact/s.
(ii) A customer contact must be contactable at all reasonable times.
(iii) We may deal with a customer contact on the basis that they are Your representative and have Your full authority.
(iv) A person remains Your customer contact until we are given notice that in writing or electronically they are no longer Your customer contact.
c. We may transfer our rights or obligations under this agreement to or share them with anyone on notice to You.
d. We may have subcontractors or other agents meet any of our responsibilities under the Agreement but we will remain liable to You for meeting all those responsibilities.
e. No legal partnership, employer/employee, principal/agent or joint venture relationship is created or evidenced by this Agreement.
f. You agree that You enter into this Agreement entirely on the basis of Your own enquiries and that You do not rely on any statement, representation or promise by us that is not expressly set out in this Agreement.
g. No failure, delay or indulgence by either You or us in exercising any power or right conferred by the Agreement on either You or us will operate as a waiver of that power or right.
h. If a provision of this Agreement is void or voidable or unenforceable or the invalid part severed, the remainder of this Agreement will not be affected.
i. The Agreement will be governed by the laws of New South Wales , and both You and we agree to submit to the non-exclusive jurisdiction of the courts of New South Wales and courts entitled to hear appeals from such courts.
j. Headings are for convenience only and do not affect interpretation.
k. The singular includes the plural and conversely.
l. A gender includes all genders.
m. If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
n. A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
o. A reference to a clause or schedule is a reference to a clause of or a schedule to, this Agreement.
p. A reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document.
q. A reference to legislation or to a provision of legislation includes a modification or reenactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
r. A reference to dollars and $ is to Australian currency.
s. The meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions.
t. No right under a customer contract can be waived except by notice in writing signed by the party waiving it. If we overlook a breach by You or another party on one or more occasions, it is not taken that we have agreed to any future breach.
u. We may record and monitor calls between you and us, which for reasons including but not limited to, quality assurance, verification of orders, details relating to your orders and training. Whilst we may keep retain records of these conversations, we do so at our discretion and do guarantee that will be made available to you.
v. For services that use geographic numbers out of area
(i) Calls made to the number may be charged as if the customer is located in the SZU for the number.
(ii) The customer may not be able to port the number to another provider.